NAKEEM BROWN 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NOT FOR PUBLICATION WITHOUT THE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-3752-19

NAKEEM BROWN,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted October 6, 2021 – Decided October 25, 2021

                   Before Judges Gilson and Gooden Brown.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Nakeem Brown, appellant pro se.

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

PER CURIAM
      Nakeem Brown, an inmate at Northern State Prison, appeals from an April

17, 2020 final agency decision of the New Jersey Department of Corrections

(DOC). The DOC upheld a disciplinary hearing officer's finding of guilt and

imposition of sanctions for Brown's commission of prohibited acts *.012,

"throwing bodily fluid at any person"; *.259, "failure to comply with an order

to submit a specimen for prohibited substance testing"; and .210 "possession of

anything not authorized for retention or receipt by an inmate or not issued to

him . . . through regular correctional facility channels,"1 in violation of N.J.A.C.

10A:4-4.1.2 We affirm.

      We glean these facts from the record. On March 11, 2020, after an officer

reported observing Brown in his cell "rolling what appeared to be a homemade

cigarette with a green leafy substance," several officers responded to the unit for

further investigation and observed Brown "stuff[ing] something in his pants."

During a pat frisk, an officer discovered "a rolled[-]up piece of paper with a


1
  The original charge *.203, "possession or introduction of any prohibited
substances, such as drugs, intoxicants, or related paraphernalia not prescribed
for the inmate by the medical or dental staff," was reduced to the .210 charge.
 2 Under N.J.A.C. 10A:4-4.1(a), an inmate who commits a prohibited act "shall
be subject to disciplinary action and a sanction . . . imposed by a Disciplinary
Hearing Officer [(DHO)]." "Prohibited acts preceded by an asterisk (*) are
considered the most serious and result in the most severe sanctions . . . ." Ibid.


                                                                              A-3752-19
                                         2
green leafy substance" in Brown's waistband. A "burnt soap pad" and pieces of

"altered wires" apparently "used to light up the rolled[-]up paper" were also

found on the floor in the immediate vicinity. As a result, Brown was escorted

from the unit "to be [s]trip searched for any further contraband and to provide a

urine specimen."

      While providing the urine sample in the bathroom under the supervision

of Officer DiMichele, Brown threw his urine at DiMichele, "striking him on the

right leg over his pants." A "Code 33" 3 was called, OC spray 4 was deployed,

and Brown was eventually "secured in handcuffs" after a physical altercation

with the officers, during which Brown sustained "minor cuts to the bridge of his

nose, swelling to the back of his head and tenderness by the right side of his

ribs." One other officer sustained minor injuries. The officers reportedly used

force because Brown refused to comply with verbal orders and was "combative

and assaultive towards . . . staff." Brown was later charged with the disciplinary

infractions that are the subject of this appeal.



 3 A Code 33 alerts DOC staff of an emergency within the prison and signals all
available staff to respond to the situation.
4
  "'OC spray,' [is] a chemical agent." Mejia v. N.J. Dep't of Corr.,  446 N.J.
Super. 369, 372 (App. Div. 2016).


                                                                            A-3752-19
                                         3
     At the ensuing disciplinary hearing, Brown requested and was granted the

assistance of counsel substitute and pleaded not guilty to the charges. Brown

also requested video of the unit where the incident occurred but was informed

there was no video of the bathroom area. Additionally, Brown requested to

confront and cross-examine DiMichele, which request was granted. Brown

posed seven questions, which DiMichele answered as follows:

           1. Did you file an injury report on the day of the alleged
           incident?

           "No I didn't. I was splashed, not injured [and] there was
           a [forty] minute wait in clinic [and] I had work to do. I
           left."

           2. Were you seen by medical staff here?

           "No."

           3. Did you go home for the day?

           "I left [at] end of shift when I finished writing up my
           paperwork."

           4. What is the standard procedure when bodily fluids
           such as urine are thrown on you?

           "It never happened to me before, I didn't know so I went
           to medical but the wait was too long."

           5. Did you take any photos of the area of your lower
           body (pants) where you stated the [half] cup of urine
           was thrown on you?


                                                                        A-3752-19
                                       4
           "There were no photos taken."

           6. Did you preserve any physical evidence knowing
           that an institutional charge would be pending, such as
           the urine cup?

           "No I didn't. I don't know if anyone else did."

           7. Did any other officer witness inmate Brown throw
           urine on you?

           "No. I was there alone [with] him."

     Thereafter, Brown requested DiMichele answer the following seven

follow-up questions:

           1. Were you in the bathroom when the OC spray was
           administered?

           2. What was the reason for the [forty] minute wait at
           medical?

           3. Did any of your supervisors advise you on the
           procedures of what to do when you have bodily fluids
           thrown on you?

           4. Did you suffer any scrapes or bruises during the
           scuffle with inmate Brown?

           5. Was the article of clothing you were wearing (pants)
           preserved for evidence so that the fluid can be tested?

           6. Were you ever interviewed by anyone (RN) here at
           medical?




                                                                     A-3752-19
                                      5
            7. Did you have to decontaminate yourself of the
            mace/OC spray since you were in direct proximity
            when it was administered?

      When the follow-up questions were propounded, DiMichele was "out of

work . . . due to the COVID-19 outbreak" and therefore "unavailable to

confront." After considering the questions DiMichele had previously answered,

as well as his written statement,5 the DHO denied the request, determining the

follow-up questions would "likely . . . produce repetitive testimony."

      Following the hearing, the DHO found Brown guilty of the charges and

determined Brown "was afforded all due process." In reaching the decision, the

DHO reviewed all the evidence, including numerous incident reports,

DiMichele's statement and confrontation questions, as well as Brown's statement

denying the charges and Brown's claim that he was attacked by the officers. The

DHO imposed aggregate sanctions of 181 days' administrative segregation, 100

days' loss of commutation time, thirty days' loss of canteen privileges, and thirty

days' loss of recreational privileges.       To support the sanctions, the DHO

reasoned Brown "continues to accrue charges," "takes no responsibility for his

behavior," and "needs to follow rules [and] consider the safety of others."


5
   In his statement, DiMichele reported "[he] was ordered to void . . . Brown."
When "Brown was unable to provide a substantial amount of urine," "he became
irate and threw the urine at [him] hitting [him] on the lower half of [his] body."
                                                                              A-3752-19
                                         6
      Brown filed an administrative appeal, arguing the DHO "violated all

procedural safeguards" and "the finding of guilt was not supported by substantial

evidence." Further, Brown asserted "[t]here were serious issues of credibility,"

and evidence of "a cover-up," manifested by "fabricated charges . . . issued to

support an unwarranted use-of-force."         Brown urged that "the charges be

rescinded" or "the sanctions be modified and/or suspended." On April 17, 2020,

a DOC assistant superintendent rejected Brown's contentions and upheld the

guilty finding and sanctions imposed. This appeal followed.

      On appeal, Brown argues the decision was "arbitrary, capricious, and

unreasonable[,] and disregarded the record." Brown renews his contention that

instead of supporting the charges, "the record clearly showed [he] was attacked"

and reports were "falsified . . . to justify [u]se of [f]orce."

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

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

the decision must not be disturbed on appeal unless it was arbitrary, capricious

or unreasonable, or lacked the support of "substantial credible evidence in the

record as a whole." Henry v. Rahway State Prison,  81 N.J. 571, 579-80 (1980).

See also N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing




                                                                           A-3752-19
                                          7
shall be based upon substantial evidence that the inmate has committed a

prohibited act.").

      "'Substantial evidence' 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)). In that

regard, while we accord deference to the agency, "we will not perfunctorily

review and rubber stamp the agency's decision," Balagun v. N.J. Dep't of Corr.,

 361 N.J. Super. 199, 203 (App. Div. 2003), and we must "engage in a 'careful

and principled consideration of the agency record and findings,'" Williams v.

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)).

      When reviewing a prison disciplinary matter, we also consider whether

the DOC followed the regulations adopted to afford inmates procedural due

process. See McDonald v. Pinchak,  139 N.J. 188, 194-95 (1995); Jacobs v.

Stephens,  139 N.J. 212, 220-22 (1995).       Admittedly, "[p]rison disciplinary

proceedings are not part of a criminal prosecution, and the full panoply of rights

due [to] a defendant in such proceedings does not apply." Jenkins v. Fauver,

 108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell,  418 U.S. 539, 556

(1974)).


                                                                            A-3752-19
                                        8
      However, the inmate's more limited procedural rights, initially set forth in

Avant v. Clifford,  67 N.J. 496, 525-46 (1975), are codified in a comprehensive

set of DOC regulations. N.J.A.C. 10A:4-9.1 to -9.28. Those rights include an

inmate's entitlement to a limited right to confront and cross-examine adverse

witnesses, N.J.A.C. 10A:4-9.14, and, in certain circumstances, the assistance of

counsel substitute, N.J.A.C. 10A:4-9.12. These regulations "strike the proper

balance between the security concerns of the prison, the need for swift and fair

discipline, and the due-process rights of the inmates." Williams,  330 N.J. Super.

at 203 (citing McDonald,  139 N.J. at 202).

      Applying these principles, we are satisfied there was substantial credible

evidence in the record to support the finding of guilt, and Brown received all the

procedural due process to which he was entitled. Brown asserts the DHO

ignored "[t]he fact that . . . DiMichele lied during confrontation" and seems to

suggest the DOC withheld exculpatory video footage of the incident. Neither

claim is supported by the record. 6 In addition, the sanctions imposed were




6
  We are also satisfied the DHO's decision pertaining to Brown's follow-up cross
examination questions was reasonable. See Negron v. N.J. Dep't of Corr.,  220 N.J. Super. 425, 430 (App. Div. 1987) ("The hearing officer is given broad
discretion to refuse a request for cross-examination and confrontation . . . .")
(citing N.J.A.C. 10A:4-9.14(a)).
                                                                            A-3752-19
                                        9
commensurate with the severity of the infractions and authorized under N.J.A.C.

10A:4-5.1 for asterisk offenses.

      Affirmed.




                                                                         A-3752-19
                                     10