MAURICE RAGLAND 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NOT FOR PUBLICATION WITHOUT THE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-1586-16T4

MAURICE RAGLAND,

       Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Defendant-Respondent.
_____________________________

                 Submitted September 21, 2018 – Decided September 27, 2018

                 Before Judges Rothstadt and Gilson.

                 On appeal from the New Jersey Department of
                 Corrections.

                 Maurice Ragland, appellant pro se.

                 Gurbir S. Grewal, Attorney General, attorney for
                 respondent (Melissa Dutton Schaffer, Assistant
                 Attorney General, of counsel; Erica R. Heyer, Deputy
                 Attorney General, on the brief).

PER CURIAM
      Appellant Maurice Ragland, an inmate, challenges an August 26, 2016,

decision by the Department of Corrections (Department) that he was guilty of

prohibited act *.005, "threatening another with bodily harm or with any offense

against his or her person or his or her property." N.J.A.C. 10A:4-4.1(a).1 We

affirm.

      Our role in reviewing a prison disciplinary decision is limited. Figueroa

v. Dep't of Corr.,  414 N.J. Super. 186, 190 (App. Div. 2010). We will not disturb

the administrative agency's determination unless it is arbitrary, capricious, or

unreasonable.    Ibid.   N.J.A.C. 10A:4-9.15(a) requires that "a disciplinary

hearing officer's adjudication that an inmate committed a prohibited act . . . be

based on substantial evidence in the record." Id. at 191. "'Substantial evidence'

means 'such evidence as a reasonable mind might accept as adequate to support

a conclusion.'" Id. at 192 (quoting In re Pub. Serv. Elec. & Gas Co.,  35 N.J.
 358, 376 (1961)).

      On April 17, 2016, appellant authored two emails to his sister from his

Jpay account. In the first email, he wrote in part:


 1 Effective January 3, 2017, N.J.A.C. 10A:4-4.1 was substantially rewritten.  49 N.J.R. 105(a) (Jan. 3. 2017) (adopted);  48 N.J.R. 915(a) (June 6, 2016)
(proposed). The new citation for prohibited act *.005, now considered a
Category B offense, is N.J.A.C. 10A:4-4.1(a)(2)(ii). However, the new
regulations do not apply to this matter.
                                                                         A-1586-16T4
                                        2
            IF ANYTHING HAPPENS TO MOM, U ALL WILL
            SUFFER AT HER FUNERAL! IS A THREAT!

            I DO HAVE CANCER N WHEN THEY GET ME
            HOME N IT'S CONFIRMED, UR A** IS FINISHED
            N ALL THOSE AROUND U! A THREAT!

            I THREATEN THOSE THAT I WANT SO BAD TO
            GET RID OF . . . .

            U DO OWE ME, U OWE ME UR LIFE . . . IF U DID
            NOT PAYY FOR MY LAWYER OR HELPED ME
            GET HIM AFTER ALL U DID TO ME, I PROMISE U
            SOMEONE IF NOT ME WILL SEND YOU TO UR
            MAKER N ALL THOSE AROUND U.


In the second email, he wrote: "U CAN'T HURT ME YO, BUT I CAN HURT

U! I WILL NOW CHANGE UR WHOLE LIFE THAT EASY N SIMPLE!"

Based on the threats in the emails, appellant was charged with a *.005 violation.

      Appellant pled not guilty, and told the disciplinary hearing officer (DHO)

that he was just asking his sister to stop contacting him. Relying on "the content

of the email . . . as threatening regardless of what [was in] the conversation not

shown" between appellant and his sister, the DHO found appellant guilty and

imposed disciplinary sanctions.

      Appellant filed an administrative appeal in which he stated:

                   . . . The threat was made to my sister, not against
            staff or another inmate. . . . Please review my last five
            responses to my sister's emails. I asked her several

                                                                          A-1586-16T4
                                        3
            times to stop emailing me N to delete herself from my
            Jpay account cause I couldn't delete her from my side
            . . . . If I could have deleted her prior to the threat I
            would have as evidence by me asking her to delete
            herself.

      The Department upheld the DHO's decision, finding that it "was based

upon substantial evidence," and that "[t]he sanction imposed was proportionate

to the offense." This appeal followed.

      Appellant first argues that he was denied his due process rights to gather

and present material evidence of the five prior emails he had sent to his sister.

He claims that those emails would have given the DHO a better understanding

of his relationship with his sister and would have shown that he simply was

asking his sister to stop communicating with him and to delete herself from his

Jpay account, since he was unable to remove her.

      Appellant's subjective intent behind his emails is not dispositive. An

inmate charged with *.005 violation is guilty if "on the basis of an objective

analysis[,] . . . the remark conveys a basis for fear." Jacobs v. Stephens,  139 N.J. 212, 222 (1995). The emails contained appellant's threats to hurt and kill

his sister. In his appeal to the Department, appellant acknowledged that he

threatened her. Thus, he was not denied due process as those emails constituted




                                                                         A-1586-16T4
                                         4
substantial evidence on their own to objectively convey a basis for fear and lead

to a finding of guilt.

      Appellant also argues, for the first time on appeal, that the sanctions

imposed were excessive. "Normally, we do not consider issues not raised below

at an administrative hearing." In re Stream Encroachment Permit,  402 N.J.

Super. 587, 602 (App. Div. 2008) (citing Bryan v. Dep't of Corr.,  258 N.J. Super.
 546, 548 (App. Div. 1992)). In declining to address this issue, we note that it

does not involve a jurisdictional question or a matter of great public interest.

See Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973). Moreover, the

sanctions appellant received do not exceed the regulatory limits in effect at the

time of the Department's decision.

      Finally, appellant raises various procedural issues for the first time in his

reply brief. We will not address these arguments. It is improper for a party to

use a reply brief to raise issues for the first time. State v. Smith,  55 N.J. 476,

488 (1970); L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc.,  434 N.J.

Super. 60, 87 (App. Div. 2014).       Moreover, appellant received the limited

process to which he was due. See Avant v. Clifford,  67 N.J. 496, 522, 529

(1975); N.J.A.C. 10A:4-9.13(a).

      Affirmed.


                                                                           A-1586-16T4
                                        5