MARVIN MAYS 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NOT FOR PUBLICATION WITHOUT THE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
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1573-16T1

MARVIN MAYS,

         Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted December 12, 2018 – Decided December 31, 2018

                   Before Judges Koblitz and Currier.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Marvin Mays, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa Dutton Schaffer, Assistant
                   Attorney General, of counsel; Suzanne M. Davies,
                   Deputy Attorney General, on the brief).

PER CURIAM
      Marvin Mays is an inmate currently confined at South Woods State Prison.

He appeals from the November 22, 2016 final decision of the Department of

Corrections (DOC) imposing disciplinary sanctions upon him for committing

prohibited act .254, refusing to accept a housing unit assignment, in violation of

N.J.A.C. 10A:4-4.1(a)(3)(ix). He was sanctioned to ten days loss of recreation

privileges as well as thirty days loss of commutation time and thirty-one days of

administrative segregation, both suspended for sixty days. 1 We affirm.

      Mays is now 67 years old. He uses a wheelchair, and is prescribed various

medications including OxyContin. He is serving a fifty-year plus six months'

sentence for two counts of robbery,  N.J.S.A. 2C:15-1(a)(1), kidnapping,

 N.J.S.A. 2C:13-1(b)(1), aggravated sexual assault,  N.J.S.A. 2C:14-2(a)(1),

simple assault,  N.J.S.A. 2C:12-1(d), and terroristic threats,  N.J.S.A. 2C:12-3(a).

      On November 13, 2016, Mays was transferred from Northern State Prison

to South Woods. On that same day, according to Officer Harris, while Mays

was receiving medication from staff, Mays was informed that he would not be

receiving "certain medication" and he became "very agitated and belligerent."



1
   The effect of suspending the sanctions was that they would not be effectuated
if Mays did not commit an infraction for sixty days. See N.J.A.C. 10A:4-9.18.
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Harris gave Mays a direct order to go to his housing unit. Mays refused, stating,

"I'm not going anywhere until I see a sergeant." According to Mays, Harris

asked Mays if he was "refusing to lock in?" to which he responded that he "was

sick, needed [his] pain meds, and needed to talk to a sergeant." Although a

sergeant was called, Mays was given no additional medication and was locked

up for refusing the order to go to his housing unit.

      On November 16, 2016, a hearing took place, at which Mays was granted

a counsel substitute. The hearing officer (HO) found Mays guilty of the charge,

writing:

            Staff reports [inmate] refused to accept housing
            assignments (to lock in). [Inmate] pleads not guilty &
            states he asked to see a [sergeant], but never refused
            housing. [HO] notes charge states [inmate] was told
            twice to lock in, but refused, stating "I'm not going
            anywhere until I see a [sergeant]." [HO] notes
            [inmates] must obey orders for safety & security
            purposes. All relied on to determine guilt.

      The HO listed reasons for the sanctions: "no evidence of mental health

problems. [Inmate] advised of 48 hours to appeal. Sanction to deter [inmates]

from refusing to accept housing & to promote a safe & secure facility. [HO]

notes [inmate] has been charge free since 2009."

      On November 17, 2016, Mays administratively appealed the decision

based on "misinterpretation of the facts" and asked for leniency, arguing that he

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was only attempting to talk to a sergeant to resolve his medication issue. On

administrative appeal, Mays' counsel substitute wrote:

            [Inmate] is respectfully requesting that you please
            rescind and/or downgrade this charge to a .709 failure
            to comply with a written rule or regulation as an "on-
            the-spot-correction," downgrading the blue sheet.
            Please be advised that this [inmate] had just arrived
            here from [Northern State Prison]. Upon arrival, he
            informed his unit officer of what he would have to do
            to get his pain medication. He asked to speak to a
            sergeant and was told he could speak to one at the
            medline if he had further issues. The medline did not
            have his pain medication. He asked the medline officer
            to speak to a sergeant, but the medline officer would
            not allow him to and had him return to his unit.
            [Inmate] advised that when asking for a supervisor at
            [Northern State Prison] there are no issues. All he was
            doing was utilizing the chain of command to address
            his issue. He should not be punished for doing so.

      On November 22, 2016, Assistant Superintendent Christopher Cline

upheld the decision and sanctions, explaining that "[t]here was compliance with

N.J.A.C. 10A subchapters on inmate discipline which prescribe procedural

safeguards. There was no misinterpretation of the facts. Your plea for leniency

has been considered. No leniency will be afforded to you."

      Our review of an administrative agency decision is limited. Figueroa v.

N.J. Dep't of Corr.,  414 N.J. Super. 186, 190 (App. Div. 2010).               An

administrative agency's determination will not be disturbed "absent a showing


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that it was arbitrary, capricious, or unreasonable . . . ." Ibid. Mays argues on

appeal that he should not have been found guilty of refusing a housing

assignment, .254, but rather the less serious .256, "refusing to obey an order of

any staff member." See N.J.A.C. 10A:4-4.1(a)(3)(ix) and (4)(iv). He was

originally charged with both infractions. Mays points to the language on the

adjudication form, "[inmates] must obey orders."

      For prison inmates, "constitutional rights are abridged to the extent

necessary to accommodate the institutional needs and objectives of prisons."

McDonald v. Pinchak,  139 N.J. 188, 194 (1995) (citing Wolff v. McDonnell,

 418 U.S. 539, 556 (1974)).

            An inmate facing disciplinary action must be provided
            with the following limited protections: (1) written
            notice of the charges, provided at least twenty-four
            hours before the hearing, so the inmate can prepare a
            defense; (2) an impartial tribunal, consisting of either
            one HO or a three-member adjustment committee; (3)
            the assistance of a counsel substitute if the inmate is
            illiterate or unable to collect or present evidence; (4)
            the right to call witnesses and present documentary
            evidence, provided it is not "unduly hazardous to
            institutional safety or correctional goals"; (5) the right
            to confront and cross-examine adverse witnesses; and
            (6), quoting the Standards on the Inmate Discipline
            Program section 254.283, "a written statement of the
            fact-findings is given to the inmate by the [HO] or by
            the adjustment committee chairman as to the evidence
            relied upon, decision and the reason for the disciplinary


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            action taken unless such disclosure would jeopardize
            institutional security."

            [Malacow v. N.J. Dep't of Corr., ___ N.J. Super. ___,
            ___ (App. Div. 2018) (slip op. at 5-6) (citation omitted)
            (quoting Avant v. Clifford,  67 N.J. 496, 525-33
            (1975)).]

      Each of these procedural requirements was met.           Mays' charge was

delivered to him on November 14, 2016, more than twenty-four hours before the

November 16, 2016 hearing. His case was decided by an impartial tribunal, an

HO member of the Department's central office staff.          He was granted the

assistance of counsel substitute. Mays was provided the opportunity to call

witnesses on his behalf, and to confront and cross-examine witnesses, which he

declined. Finally, Mays was afforded the opportunity to review the adjudication

report and acknowledged that the content of the report was accurate.

      "A finding of guilt at a disciplinary hearing shall be based upon substantial

evidence that the inmate has committed a prohibited act," N.J.A.C. 10A:4-

9.15(a), meaning "such evidence as a reasonable mind might accept as adequate

to support a conclusion," Figueroa,  414 N.J. Super. at 192 (quoting In re Public

Service Electric & Gas Co.,  35 N.J. 358, 376 (1961)). Although Mays could

have been convicted of the less serious failure to obey an order, the evidence




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also supported a refusal to accept his housing assignment, as he conditioned his

acceptance on the receipt of his medication.

      The HO evidently had sympathy for Mays' situation because she

suspended the more onerous aspects of the sanctions imposed. She also gave

inmate-specific reasons for imposing the sanction, as required. Malacow, ____

N.J. Super. ___ (slip op. at 10-11).

      Mays argues for the first time on appeal that because he did not receive a

copy of the rule book upon his arrival to South Woods, he was not aware that

his request to see a sergeant would result in a "lock up." Although Mays should

have received a rule book upon his arrival at a new correctional institution,

 N.J.S.A. 30:4-8.5; N.J.A.C. 10A:4-2.1(b), this infraction occurred on Mays' first

day, so it is premature to assess a violation of this requirement. Additionally

the statute and regulation do not anticipate that, absent receipt of a rule book, an

inmate may disobey all rules with impunity.

      Mays' further arguments that the sanction was excessive, his counsel

substitute was ineffective and the administrative appeal was insufficiently

thorough, are without sufficient merit to require discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.


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