ERIC HINES 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NOT FOR PUBLICATION WITHOUT THE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-2791-18T4

ERIC HINES,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                   Submitted March 2, 2020 – Decided March 12, 2020

                   Before Judges Messano and Vernoia.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Eric Hines, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Christopher Josephson, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Appellant Eric Hines is an inmate in the custody of the New Jersey

Department of Corrections (DOC).        He appeals from a DOC final agency

decision finding he committed prohibited act .254, refusing to work or accept a

program or housing unit assignment, N.J.A.C. 10A:4-4.1(a)(3)(ix), and

imposing 180-days administrative segregation; 180-days loss of commutation

time; and 15-days loss of reaction privileges. Having reviewed the record in

light of the applicable legal principles, we affirm.

      The record before the DOC shows that on January 16, 2019, Hines arrived

at South Woods State Prison (South Woods) from another DOC facility. A

corrections officer assigned Hines to a housing unit within the prison. In

response, Hines said he was "not locking at South Woods." The officer ordered

Hines to report to the assigned housing unit, but Hines refused. He told the

officer, "I'm refusing to lock in South Woods." The officer placed Hines in

restraints and escorted him to a holding cell. Hines was later escorted to a prison

housing unit.

      The following day, Hines was served with a disciplinary notice charging

him with committing prohibited act .254. He also underwent a mental health

examination, which revealed that, although he suffers from mental illness, he

understands the cause and effect of his behavior, comprehends the DOC's rules,


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and was responsible for his actions during the incident. It was also determined

Hines was mentally competent to defend himself and to understand the

disciplinary proceedings against him.

      Hines requested, and was assigned, a counsel substitute, and Hines

pleaded not guilty to the charge. During the January 18, 2019 hearing, Hines

explained that in 2016, he had problems with the DOC staff at South Woods,

and, since that time, he refused to "lock in" at the prison. He claimed he "feared

for [his] life" from the South Woods DOC staff. Hines declined the opportunity

to present witnesses and to confront the DOC's witnesses at the hearing.

      The hearing officer found Hines admitted refusing the housing assignment

and the DOC's evidence otherwise established Hines committed the prohibited

act. The hearing officer further determined that inmates may not "dictate where

they are housed," and that "Hines has an extensive history of refusing housing."

During the four years prior to the January 16, 2019 incident at South Woods,

Hines was disciplined on nine separate occasions for committing prohibited act

.254. The hearing officer concluded Hines "must follow orders [and] proper

procedures" "[t]o promote a safe[,] secure[, and] orderly facility."

      The hearing officer considered the evidence presented, including the

confidential mental health evaluation, Hines's statements, and Hines's extensive


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prior record of committing prohibited act .254. In the handwritten Adjudication

of Disciplinary Charge form completed by the hearing officer, she indicated the

following sanctions were imposed: 365-days administrative segregation as a

Category A offense pursuant to N.J.A.C. 10A:4-5.1(d); 180-days loss of

commutation time; and 15-days loss of recreation privileges.       In the final

Adjudication of Disciplinary Charge form, the hearing officer modified the

administrative segregation sanction to 180-days for a Category B offense

pursuant to N.J.A.C. 10A:4-5.1(d). The sanctions for loss of commutation time

and recreation privileges remained unchanged.

      Hines filed an administrative appeal of the hearing officer's decision. In

support of his appeal, Hines submitted a memorandum admitting that "[o]n

January 16, 2019, [he] refused to be housed . . . at South Woods." He defended

his refusal, claiming that in 2016, DOC officers at South Woods threatened to

assault him, and, as a result, he "was in fear for [his] physical safety" at the

prison.

      He also argued the hearing officer improperly increased the administrative

segregation sanction for his .254 offense under N.J.A.C. 10A:4-5.1(d) to that

permitted for a Category A offense. He claimed prohibited act .254 constitutes

a Category C offense, and, therefore, N.J.A.C. 10A:4-5.1(d) authorized an


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increase in the administrative segregation sanction to only that permitted f or a

Category B prohibited act.

      The Assistant Superintendent reviewed the record and found Hines's

mental health history was considered, his procedural rights had been honored,

and the sanctions imposed were appropriate. The Assistant Superintendent

upheld the hearing officer's findings and determination. This appeal followed.

      Hines presents the following arguments for our consideration:

            [POINT] I

            [THE] ADMINISTRATIVE              APPEAL      SHOULD
            HAVE BEEN GRANTED[.]

            [POINT] II

            [THE] HEARING OFFICER                APPLIED      [THE]
            WRONG STANDARD[.]

            [POINT] III

            [THE] SANCTION WAS EXCESSIVE[.]

      Our review of agency determinations is limited. See In re Stallworth,  208 N.J. 182, 194 (2011); Brady v. Bd. of Review,  152 N.J. 197, 210 (1997);

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

will not reverse an administrative agency's decision unless it is "arbitrary,

capricious, or unreasonable, or [] not supported by substantial credible evidence


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in the record as a whole." Stallworth,  208 N.J. at 194 (citation omitted); accord

Jenkins v. N.J. Dep't of Corr.,  412 N.J. Super. 243, 259 (App. Div. 2010). In

determining whether an agency action is arbitrary, capricious, or unreasonable,

we consider whether: (1) the agency followed the law; (2) substantial evidence

supports the findings; and (3) the agency "clearly erred" in applying the

"legislative policies to the facts." In re Carter,  191 N.J. 474, 482-83 (2007)

(quoting Mazza v. Bd. of Trs.,  143 N.J. 22, 25 (1995)).

      Although    we    afford   deference   to   an   administrative   agency's

determination, our review is not perfunctory and "our function is not to merely

rubberstamp an agency's decision." Figueroa,  414 N.J. Super. at 191. We must

"engage in a 'careful and principled consideration of the agency record and

findings.'" Williams v. N.J. Dep't of Corr.,  330 N.J. Super. 197, 204 (App. Div.

2000) (quoting Mayflower Sec. Co. v. Bureau of Sec.,  64 N.J. 85, 93 (1973)).

      N.J.A.C. 10A:4-4.1 defines the prohibited acts for which an inmate "shall

be subject to disciplinary action and a sanction."        The "[p]rohibited acts

are . . . subclassified into five categories of severity (Category A through E)

with Category A being the most severe and Category E the least severe."

N.J.A.C. 10A:4-4.1. The DOC determined Hines committed prohibited act .254,

a Category C offense. N.J.A.C. 10A:4-4.1(a)(3)(ix).


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      N.J.A.C. 10A:4-4.1 also details the sanctions that may be imposed for the

commission of prohibited acts within the five categories. In pertinent part, the

statute requires the imposition of administrative segregation "of no less than 181

days and no more than 365 days . . . per incident" for a Category A offense,

N.J.A.C. 10A:4-4.1(a)(1); "no less than 91 days and no more than 180

days . . . per incident" for a Category B offense, N.J.A.C. 10A:4-4.1(a)(2); and

"no less than 31 days and no more than 90 days" for a Category C offense,

N.J.A.C. 10A:4-4.1(a)(3).1

      Under certain circumstances, the DOC is permitted to impose an

administrative segregation sanction in the range authorized for the next highest

category of offense. More particularly, N.J.A.C. 10A:4-5.1(d) authorizes the

DOC to impose, in its discretion, administrative segregation "in the next highest

category of the current offense" where there are "[r]epeat occurrences of a

specific infraction[]." For example, the regulation permits the DOC to impose

the administrative segregation sanction for a Category B offense for an inmate

that commits a Category C offense where the inmate has repeat occurrences of

the prohibited act. See N.J.A.C. 10A:4-5.1(d).


1
  The statute also provides for additional sanctions in accordance with N.J.A.C.
10A:4-5.1 for commission of prohibited acts in each of the five categories of
offenses. See N.J.A.C. 10A:4-4.1(a)(1), (2), (3), (4) and (5).
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      Hines claims in each of his three points that the DOC should have granted

his administrative appeal because the hearing officer violated N.J.A.C. 10A:4-

5.1(d) by imposing 365-days administrative segregation. Specifically, he claims

that since prohibited act .254 is a Category C offense, it was improper for the

hearing officer to impose 365-days administrative segregation because that

sanction is authorized only for a Category A offense. See N.J.A.C. 10A:4-

4.1(a)(1). Hines contends that any increase in the administrative segregation

sanction under N.J.A.C. 10A:4-5.1(d) for his commission of the Category C

offense was limited to that allowed for a Category B offense, or between "91

days and no more than 180 days." See N.J.A.C. 10A:4-4.1(a)(2). He asserts the

hearing officer's imposition of a Category A administrative segregation sanction

was therefore improper.

      Hines's argument is undermined by the record. The hearing officer's

initial handwritten decision reflected the 365-days administrative segregation

sanction only permitted for a Category A offense. Her final decision, however,

expressly states that, based on Hines's prior record of repeated infractions for

committing prohibited act .254, a Category B administrative segregation

sanction was imposed in accordance with N.J.A.C. 10A:4-5.1(d). In other

words, contrary to Hines's claim, the administrative segregation imposed was


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not a Category A sanction. To the contrary, the hearing officer and DOC

imposed 180-days administrative segregation, which is authorized for a

Category B offense. See N.J.A.C. 10:4-4.1(a)(2).

      Hines does not contend the DOC abused its discretion under N.J.A.C.

10A:4-5.1(d) by increasing the sanction to the next highest level—a Category B

offense. See Sklodowsky v. Lushis,  417 N.J. Super. 648, 657 (App. Div. 2011)

(holding an issue not briefed on appeal is deemed waived). Moreover, Hines's

commission of nine prior .254 prohibited acts amply supports the DOC's

decision to increase the administrative segregation sanction to the next highest

level and impose 180-days administrative segregation for Hines's admitted and

undisputed refusal—for the tenth time—to accept a direct order to comply with

a housing unit assignment. He does not argue to the contrary. 2 Ibid.

      We otherwise are satisfied there is substantial credible evidence

supporting the hearing officer's and DOC's finding Hines committed prohibited



2
  We acknowledge that in Point III of his brief, Hines claims the administrative
segregation sanction is "excessive." That argument, however, is based solely on
the contention that the sanction is excessive because it is in the range permitted
for a Category A offense. As noted, that contention is contradicted by the
record; the DOC imposed an administrative segregation sanction permissible for
a Category B offense in accordance with N.J.A.C. 10A:4-5.1(d). Hines does not
offer any other argument supporting his claim the sanction is excessive, and,
based on the record present, we find no basis to conclude that it is.
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act .254—indeed, Hines admits doing so—and we find no basis to conclude the

DOC's findings and imposition of sanctions are arbitrary, capricious, or

unreasonable. See Stallworth,  208 N.J. at 194; In re Carter,  191 N.J. at 482-83.

We therefore affirm the DOC's final decision.

      Any remaining arguments we have not addressed directly are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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