MICHAEL HERSEY 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NOT FOR PUBLICATION WITHOUT THE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-4025-19

MICHAEL HERSEY,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted December 14, 2021 – Decided December 27, 2021

                   Before Judges Mayer and Natali.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Michael Hersey, appellant pro se.

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

PER CURIAM
      Appellant Michael Hersey, an inmate at Bayside State Prison, appeals

from a May 12, 2020 final agency decision issued by respondent New Jersey

Department of Corrections (DOC) finding him guilty of prohibited act *.252,

encouraging others to riot, and imposing sanctions. We affirm.

      On April 9, 2020, Hersey resided in a quarantine unit at Southern State

Correctional Facility. When the prison staff attempted to move additional

inmates into the unit, there was a disturbance in the day room. At 9:20 p.m., the

unit's current inmates began yelling, cursing, and demanding no additional

inmates be relocated to the unit. At 9:30 p.m., officers directed the inmates

leave the day room, return to their bunks, and report for the standard inmate

count.

      The inmates ignored the officers' commands, refusing to leave the day

room and report to their wings as instructed. Instead, the inmates remained in

the day room, watching television, using the kiosks, and talking on the

telephones. Additionally, some inmates used a table in the day room to barricade

the door to the unit. Because the inmates were wearing surgical masks due to

COVID, the officers on duty and video surveillance footage could not identify

the inmates who remained in the day room after being instructed to return to

their bunks. The events that evening were recorded on the prison's video


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monitoring system. The officers were eventually able to secure, process, and

transport the inmates to another prison facility six hours after the disruption

began.

      Hersey was charged with *.252, encouraging others to riot, a prohibited

act under N.J.A.C. 10A:4-4.1(a).1      Hersey requested and was granted the

assistance of a counsel substitute and pleaded not guilty. In response to the

charge, Hersey claimed to be asleep in his bunk during the incident.

      A hearing was conducted before a hearing officer. Telephone records

listing the names of inmates using the phones after 9:30p.m. were submitted into

evidence. Those records indicated Hersey made a six-minute telephone call at

9:44 p.m., after all inmates were instructed to vacate the day room and return to

their bunks. The hearing officer also considered video evidence of the incident

and the written statements of the officers who resolved the disturbance.

      The hearing officer found Hersey guilty of prohibited act *.252. She

found Hersey "was on the phone after count was called, [and] his actions

contributed and promoted the lack of order and disarray." The hearing officer

sanctioned Hersey to 210 days' administrative segregation, ninety days' loss of



1
 Sixty-two other inmates were charged with the same institutional infraction as
Hersey.
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commutation time, and ten days' loss of recreation privileges. In support of the

sanctions imposed, the hearing officer explained, "[i]nmate[']s behaviors could

have led to violence and injuries for staff and inmates . . . . Said behaviors cannot

be tolerated and any future behavior of this type must be deterred for safety and

security purposes."

      Hersey administratively appealed the hearing officer's decision to the

DOC. The agency affirmed the hearing officer's decision because "[t]he video

supports that all inmates were actively engaged in the incident whether acting

out, [or] refusing to disperse. There is no video evidence that any inmate took

precaution to recuse himself during the incident to his bunk . . . ." In affirming

the hearing officer's decision, the DOC concluded Hersey's behavior during the

incident contributed to the general chaos, disorder, and danger within the prison.

      On appeal, Hersey argues "[t]he disciplinary hearing officer's finding of

guilt on the charge of riot was not supported by substantial evidence and

therefore it must be reversed." We disagree.

     Our review of an agency determination is limited. In re Stallworth,  208 N.J. 182, 194 (2011). We will not reverse an administrative agency's decision

unless it is "arbitrary, capricious[,] or unreasonable[,] or [] not supported by

substantial credible evidence in the record as a whole." Ibid. (omission in


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original) (quoting Henry v. Rahway State Prison,  81 N.J. 571, 579-80 (1980)).

The "final determination of an administrative agency . . . is entitled to substantial

deference." In re Eastwick Coll. LPN-to-RN Bridge Program,  225 N.J. 533, 541

(2016) (citing Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl.

Prot.,  191 N.J. 38, 48 (2007)).

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

             An inmate who commits one or more of the following
             numbered prohibited acts shall be subject to
             disciplinary action and a sanction that is imposed by a
             Disciplinary Hearing Officer . . . . Prohibited acts
             preceded by an asterisk (*) are considered the most
             serious and result in the most severe sanctions . . . .
             Prohibited acts are further divided into five categories
             of severity (Categories A through E) with Category A
             being the most severe and Category E the least severe.

      A Category A offense, including prohibited act *.252, encouraging others

to riot, "shall result in a sanction of no less than 181 days and no more than 365

days of administrative segregation per incident . . . ." A hearing officer's finding

that an inmate committed a prohibited act must be supported by "substantial

evidence." N.J.A.C. 10A:4-9.15(a).

      Having reviewed the record, we are satisfied there was substantial credible

evidence to support finding Hersey guilty of prohibited act *.252. Although the

unit's inmates wore masks, the video evidence and officers' statements supported


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the determination that the inmates in the day room at the time of the disruption

failed to comply with commands to return to their bunks and be counted. There

is no evidence in the record corroborating Hersey's statement that he was

sleeping in his bunk at the time of the incident. The evidence demonstrated

Hersey and other inmates in the day room defied orders issued by the officers.

Thus, the inmates' conduct that day, including Hersey, interfered with the

prison's ability "to manage th[e unit's] volatile environment." Russo v. N.J.

Dep't of Corr.,  324 N.J. Super. 576, 584 (App. Div. 1999).

      To the extent we have not specifically addressed Hersey's remaining

contentions, we find those contentions lack sufficient merit to warrant a

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

      Affirmed.




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