MICHAEL ROSS 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NOT FOR PUBLICATION WITHOUT THE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-2902-19

MICHAEL ROSS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted October 25, 2021 – Decided November 30, 2021

                   Before Judges Messano and Enright.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Michael Ross, appellant pro se.

                   Andrew J. Bruck, Acting Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Daniel S. Shehata, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Inmate Michael Ross appeals from the final agency decision of the

Department of Corrections (DOC) adjudicating him guilty of committing

prohibited act .256, refusing to obey an order from staff, in violation of N.J.A.C.

10A:4-4.1, and imposing sanctions of thirty days' administrative segregation,

suspension for sixty days, and the loss of sixty days of commutation time and

fifteen days of recreation privileges. 1 On December 30, 2019, Officer Lewis

filed disciplinary charges against Ross, alleging he "refused several direct orders

to report to the holding area" of the medical clinic for a scheduled appointment.

Other officers responded to the area and took Ross into custody, after which he

was evaluated at the clinic and then removed to a cell.

      Ross requested a counsel substitute, who filed a written statement on Ross'

behalf, prior to the January 2, 2020 disciplinary hearing. In the statement, Ross



1
  There is a discrepancy between the hearing officer's adjudication report, which
proposed 130 days of administrative segregation, suspended for 60 days, and the
sanction contained in the assistant superintendent's discipline report, which
stated there were 30 days of administrative segregation, suspended for 60 days.
In any event, appellant's brief advises that because no other disciplinary charges
were lodged against him during those 60 days, he did not serve any days in
administrative segregation.

      The record remains unclear, however, whether appellant lost 30 days of
commutation time as reflected in the hearing officer's adjudication report, or 60
days of commutation time as contained in the assistant superintendent's
discipline report.
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explained that he did not intentionally disregard Officer Lewis' order, but rather ,

because so many inmates were inside the holding area, "[t]here was literally no

space for . . . Ross to enter." Ross requested that all video from the holding area

be preserved, and sought the statements of four other inmates and a copy of the

"Fire and Safety Standard" for maximum occupancy of the holding area.

      However, at the hearing, Ross rescinded the request for additional

evidence and witnesses and pled guilty to the charge, once again stating he did

not intentionally disregard the order but claimed the holding area was too

crowded.    The hearing officer adjudicated Ross guilty of the charge and

recommended certain discipline.       Ross appealed, with a different counsel

substitute filing a written statement on his behalf.

      In that statement, Ross contended the hearing officer told him the hearing

would be adjourned to obtain all the evidence Ross had requested, and he would

remain in pre-hearing detention for "an unknown number of additional days."

Because "he would continue to be severely punished," Ross pled guilty. He also

asserted that the overcrowded situation in the holding area violated applicable

fire safety standards.

      The Assistant Superintendent upheld the hearing officer's decision and

imposed the penalties already noted. She concluded the charge was "adjudicated


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according[] to the [Administrative Code, t]he preponderance of evidence . . .

support[ed] the guilty decision," and the hearing officer had granted leniency in

imposing the penalty.

      Ross contends that his due process rights were violated because the

hearing officer failed to obtain evidence he requested that contradicted the

written reports of the prison's staff, ignored other evidence favorable to Ross,

and did not fairly and impartially assess the credibility of the witnesses. We

affirm.

      Our review of agency action is limited. "We will disturb an agency's

adjudicatory decision only upon a finding that the decision is 'arbitrary,

capricious or unreasonable,' or is unsupported 'by substantial credible evidence

in the record as a whole.'" Blanchard v. N.J. Dep't. of Corr.,  461 N.J. Super.
 231, 237–38 (2019) (quoting Henry v. Rahway State Prison,  81 N.J. 571, 579–

80 (1980)). DOC's regulations require any "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). "Substantial evidence has been

defined alternately as 'such evidence as a reasonable mind might accept as

adequate to support a conclusion,' and 'evidence furnishing a reasonable basis




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for the agency's action.'" Blanchard,  461 N.J. Super. at 238 (quoting Figueroa

v. N.J. Dep't of Corr.,  414 N.J. Super. 186, 192 (App. Div. 2010)).

      Here, Ross was accorded all the procedural due process required. See

Malacow v. N.J. Dep't. of Corr.,  457 N.J. Super. 87, 93–94 (App. Div. 2018)

(explaining due process rights for prison disciplinary hearings (citing Avant v.

Clifford,  67 N.J. 496, 525–33 (1975))). Ross admitted guilt at the hearing, albeit

with the proverbial explanation for why he refused the order. Any belated

claims that he pled guilty to avoid delaying the hearing are not supported by the

record; instead, DOC's decision is supported by sufficient credible evidence in

the record as a whole. R. 2:11-3(e)(1)(D).

      Affirmed.




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