RAMIL ROBINSON 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NOT FOR PUBLICATION WITHOUT THE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-2851-18T2

RAMIL ROBINSON,
a/k/a TAVION SMITH,
LANELL MADISON,
RAMEL ROBINSON,
RAMEAL ROBINSON,
RAMEAL ROGERSON,
and MIL,

          Appellant,

v.

NEW JERSEY
DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted November 9, 2020 – Decided December 15, 2020

                   Before Judges Hoffman and Suter.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Ramil Robinson, appellant pro se.
            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Chanell Branch, Deputy Attorney
            General, on the brief).

PER CURIAM

      Appellant Ramil Robinson is an inmate in a New Jersey State Prison. He

appeals a January 18, 2019 decision of respondent New Jersey Department of

Corrections (Department) upholding the decision of a hearing officer to impose

disciplinary sanctions for committing prohibited act *.011, possession or

exhibition of anything related to a security threat group (STG) in violation of

N.J.A.C. 10A:4-4.1(a). We affirm.

      On January 14, 2019, a non-routine search of appellant's cell yielded a

notebook located behind his television and a folder on his shelf that included

typed letters with references, symbols and logos of the "Five Percent Nation."

This is a group the Department identifies as a STG. 1

      Appellant was charged with prohibited act *.011.          N.J.A.C. 10A:4-

4.1(a)(2)(ii). He pleaded guilty. His statement concerning the charge was that


1
   A security threat group "means a group of inmates possessing common
characteristics, interests and goals which serve to distinguish the group or group
members from other inmate groups or other inmates and which, as a discrete
entity, poses a threat to the safety of the staff, other inmates, the community or
causes damage to or destruction of property, or interrupts the safe, secure and
orderly operation of the correctional facilit(ies)." N.J.A.C. 10A:3-11.2.
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the materials were about his religion and that a religion was not a STG. He

declined to have counsel substitute provide assistance at the disciplinary

hearing.

      A disciplinary hearing was conducted. Appellant's statement there was

that the materials were his, but that he did not teach disobedience.            An

investigator in the Department's Special Investigation Division (SID)

determined the materials were related to the Five Percent Nation. Appellant did

not call witnesses or request to cross-examine any adverse witnesses.

      On January 16, 2019, the hearing officer determined appellant was guilty

of prohibited act *.011, finding the materials that were confiscated related to the

Five Percent Nation and were "identified as being STG material." This was

"[b]ased on the professional identification of the STG and [appellant] taking

responsibility for the written/printed material . . . ." The hearing officer found

appellant was jeopardizing the safety of the institution by not following the rules

and regulations.

      Appellant was sanctioned to 100 days of administrative segregation,

twenty days' loss of recreation privileges and ten days' loss of phone privileges.

He filed an administrative appeal arguing that the "sanctions imposed be

rescinded based on his [c]onstitutional right to religious freedom ."


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      On January 18, 2019, the Associate Administrator upheld the decision of

the hearing officer and the sanction because "[t]he material found in [appellant's]

possession was identified as belonging to a security threat group. There are well

established rules that prohibit possession of this material." The decision upheld

the charge and sanction, noting this was not appellant's first violation of this

regulation.

      On appeal, appellant raises two issues:

              POINT 1:

              PLAINTIFF WAS DENIED DUE PROCESS
              PROTECTIONS       THROUGH   INEFFECTIVE
              ASSISTANCE OF COUNSEL DURING A PRISON
              DISCIPLINARY HEARING WHEN HIS ASSIGNED
              COUNSEL SUBSTITITE DID NOT RAISE
              RELIGIOUS        LAND     USE      AND
              INSTITUTIONALIZED PERSONS ACT OF 2000
              (RLUIPA) IN HIS DEFENSE.

              POINT 2:

              THE    RESPONDENT     DEPARTMENT     OF
              CORRECTION'S COURTLINE ADJUDUCATION
              ERRED WHEN IT FAILED TO TAKE THE RLUIPA
              INTO ACCOUNT.

      In this appeal from agency action, our review is limited. Figueroa v. N.J.

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

to reverse the decision of an administrative agency unless it is "arbitrary,


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capricious or unreasonable or it is not supported by substantial credible evidence

in the record as a whole." In re Taylor,  158 N.J. 644, 657 (1999) (quoting Henry

v. Rahway State Prison,  81 N.J. 571, 581 (1980)). A finding that an inmate

committed a disciplinary offense only has to be "supported by substantial

evidence," Avant v. Clifford,  67 N.J. 496, 530 (1975), which means, "such

evidence as a reasonable mind might accept as adequate to support a

conclusion." Figueroa,  414 N.J. Super. at 192 (quoting In re Pub. Serv. Elec. &

Gas Co.,  35 N.J. 358, 376 (1961)); see also N.J.A.C. 10A:4-9.15(a). When such

evidence exists, a court may not substitute its own judgment for the agency's

even though the court may have reached a different result. See Figueroa,  414 N.J. Super. at 191 (citing Circus Liquors, Inc. v. Middletown Twp.,  199 N.J. 1,

10 (2009)). When reviewing a final determination of the Department in a

prisoner disciplinary matter, we consider whether there is substantial evidence

the inmate has committed the prohibited act and whether, in making its decision,

the Department followed the regulations adopted to afford inmates procedural

due process. See McDonald v. Pinchak,  139 N.J. 188, 194-98 (1995).

      Appellant's due process rights under Avant were satisfied.  67 N.J. at 525-

33. Appellant was given notice of the charges and a hearing before an impartial

tribunal. N.J.A.C. 10A:4-9.2. Because he was charged with an asterisk offense,


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                                        5
he was permitted to have the assistance of counsel substitute, although he

declined the assistance of the paralegal and represented himself at the hearing.

N.J.A.C. 10A:4-9.12.

      Appellant claims his paralegal provided ineffective assistance by not

raising an argument that confiscation of the materials violated the Religious

Land Use and Institutionalized Persons Act (RLUIPA). 42 U.S.C. §2000cc. The

hearing officer's report provided that appellant "did not wish to have a

paralegal."   He has no claim for ineffective assistance for his own self-

representation.

      That said, the Department's decision was not arbitrary, capricious or

unreasonable and is supported by substantial evidence in the record.        The

Department has designated the Five Percent Nation as an STG based on its

history of violence and gang-related activity within prisons. Fraise v. Terhune,

 283 F.3d 506, 516-18 (3d Cir. 2002). There was evidence submitted by the SID

investigator that the materials found in appellant's cell included symbols and

reference to the Five Percent Nation, that the group is an STG and that an STG

is a threat to the safety of the prison. Appellant was aware that possession of

Five Percent Nation materials were prohibited because he previously received

administrative discipline for a *.011 charge based on possession of Five Percent


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Nation materials. Appellant admitted the materials found were his and were

Five Percent Nation material. Appellant acknowledged in his brief on appeal

that in March 1998, the Department determined the Five Percent Nation to be a

STG. Thus, there was substantial credible evidence to support the finding that

appellant violated *011.

      Appellant argues the confiscated materials were religious in nature. He

offered no proof of this.    Appellant now argues that confiscation of these

materials violated the RLUIPA. This was not raised before the Hearing Officer.

We are not required to decide issues that were not raised. See State v. Galicia,

 210 N.J. 364, 382 (2012) (stating that "[g]enerally, an appellate court will not

consider issues . . . which were not raised below.").

      We conclude that appellant's further arguments are without sufficient

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

      Affirmed.




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