BRANDON FRITZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0624-17T2

BRANDON FRITZ,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted October 24, 2018 – Decided November 5, 2018

                    Before Judges Nugent, Reisner and Mawla.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Brandon Fritz, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Michael E. Vomacka,
                    Deputy Attorney General, on the brief).

PER CURIAM
      Brandon Fritz, a prison inmate, appeals from an August 25, 2017 final

decision of the Department of Corrections (DOC or agency), finding that he

committed prohibited act .210, possessing unauthorized materials. We vacate

the agency decision, and remand for a new hearing. Should the agency once

again find that Fritz committed the prohibited act, the decision must be

supported by specific findings of fact.

      According to incident reports, during a search of Fritz's cell, a corrections

officer found a plastic trash bucket lined with a clear plastic bag containing an

orange liquid. The reports described the liquid as cloudy and having an odor.

The officer believed the substance smelled like "hooch" or homemade alcohol.

Fritz claimed the juice came from the mess hall and was not alcoholic. He

asserted that he was blending it to use for dietary purposes. Fritz was placed in

administrative segregation, and subjected to a urine test for prohibited

substances. The test came back negative.

      Fritz was originally charged with prohibited act *.551, making intoxicants

or alcoholic beverages. However, on the day of the hearing, the hearing officer

downgraded the charge to prohibited act .210, "possession of anything not

authorized for retention or receipt by an inmate or not issued to him or her

through regular correctional facility channels." N.J.A.C. 10A:4-4.1(a)(4)(iii).


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According to his administrative appeal, Fritz's inmate counsel substitute asked

for an adjournment because Fritz was in administrative segregation, and could

not meet with counsel prior to the hearing. However, the hearing proceeded.

Fritz explained his legitimate reasons for possessing the juice. Without making

a credibility determination, or any factual findings, the hearing officer stated, in

conclusory fashion, that he was relying on the investigative reports to find Fritz

guilty of the charge.

      On this appeal, as before the agency, Fritz asserts that the liquid found in

his cell was a mixture of ordinary, nonfermented juices that he obtained from

the prison mess hall. He asserts that he intended to blend and drink the juice for

dietary purposes. In his brief, Fritz asserts that the DOC rules permit inmates

to bring juice back to their cells from the mess hall, and the DOC issued him the

container in which the juice was found. He supports those contentions with the

DOC's own handbooks. He also argues that he had insufficient notice of the

charges and insufficient opportunity to prepare for the hearing.

      We conclude that the last-minute downgrading of the charge, which

apparently occurred because the agency could not prove that the substance in

Fritz's cell was an alcoholic beverage, did not give Fritz fair notice of the charge




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against him. 1   Additionally, the agency decision is devoid of credibility

determinations as to Fritz's testimony, and does not contain any specific factual

findings concerning exactly what "unauthorized materials" Fritz possessed or

otherwise what he did that violated prohibited act .210. In the absence of

specific factual findings, we cannot engage in meaningful appellate review of

the agency's decision. In re Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-

Geigy Corp.,  120 N.J. 164, 172 (1990).

      Accordingly, we remand the matter to the DOC for a new hearing. At

least twenty-four hours in advance of any hearing, the agency must serve Fritz

with a written charge that specifies what he allegedly did to commit prohibited

act .210. Should Fritz once again be found to have committed that prohibited

act, the hearing officer's decision must be supported by specific findings of fact

and credibility determinations.

      Vacated and remanded. We do not retain jurisdiction.




1
  In his administrative appeal, as on this appeal, Fritz asserted that the juice was
tested and was not found to contain alcohol. The prison administrator did not
address that contention, and neither does the DOC's appellate brief.
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