HAKIM NELSON 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NOT FOR PUBLICATION WITHOUT THE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-0067-20

HAKIM NELSON,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                   Submitted March 28, 2022 – Decided April 13, 2022

                   Before Judges Fasciale and Firko.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Hakim Nelson, appellant pro se.

                   Matthew J. Platkin, Acting Attorney General, attorney
                   for respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Daniel S. Shehata, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Hakim Nelson appeals from a May 1, 2020 final agency decision by the

New Jersey Department of Corrections (DOC) finding him guilty of prohibited

act *.005 (threatening another with bodily harm), N.J.A.C. 10A:4-4.1(a)(2)(ii).

The hearing officer (HO) weighed the evidence, determined that Nelson

committed the prohibited offense, and imposed a sanction of ninety-one days

administrative segregation, sixty days loss of commutation time, and thirty days

loss of recreation privileges. We affirm.

      On appeal, Nelson argues:

            [POINT I]

            VIOLATION OF DUE PROCESS INVOLVING THE
            REQUIREMENT FOR STANDARD OF EVIDENCE
            IN ACCORDANCE WTH N.J.A.C. 10A:4-9[.]15(A).

            [POINT II]

            DUE PROCESS VIOLATION FOR FAILURE OF
            THE [HO] TO ASCERTAIN [NELSON'S] PLEA
            PRIOR TO ADJUDICATING DISCIPLINARY
            CHARGE [*].005 THREATENING BODILY HARM.

            [POINT III]

            THE SANCTIONS IMPOSED AMOUNT[]                      TO
            CRUEL AND UNUSUAL PUNISHMENT.




                                                                          A-0067-20
                                       2
            [POINT IV]

            THE EVIDENCE AGAINST [NELSON] DOES NOT
            SUPPORT A FINDING OF GUILT AND DENIED
            [NELSON] EQUAL PROTECTION OF LAW.1

      Our standard of review is well-settled.      We defer to administrative

agencies in recognition of their "expertise and superior knowledge of a

particular field." In re Herrmann,  192 N.J. 19, 28 (2007). In our review of the

DOC's exercise of authority, we must acknowledge "[t]he breadth and

importance of the Commissioner's expertise and discretionary authority in

matters of prison policy, regulation[,] and administration." Ortiz v. N.J. Dep't

of Corr.,  406 N.J. Super. 63, 70 (App. Div. 2009). A disciplinary hearing

officer's decision that an inmate is guilty of a prohibited act must be based on

substantial evidence in the record. Figueroa v. N.J. Dep't of Corr.,  414 N.J.

Super. 186, 191 (App. Div. 2010). "Substantial evidence means such evidence

as a reasonable mind might accept as adequate to support a conclusion." Id. at

192 (internal quotation marks omitted) (quoting In re Pub. Serv. Elec. & Gas

Co.,  35 N.J. 358, 376 (1961)).




1
  We have altered the capitalization of Nelson's point headings to comport with
our style conventions but omitted the alterations for readability.
                                                                          A-0067-20
                                       3
      The limited due process rights to which inmates in our prisons charged

with disciplinary infractions are entitled were first enumerated by our Court in

Avant v. Clifford,  67 N.J. 496, 525-30 (1975), and are codified in DOC

regulations, N.J.A.C. 10A:4-9.1 to -9.28. Among the rights granted by Avant is

the inmate's limited right to "present documentary evidence in their defense

when such procedure will not be unduly hazardous to institutional safety or

correctional goals."  67 N.J. at 529. An inmate's due process rights also include:

written notice of the charges at least twenty-four hours prior to the hearing,

N.J.A.C. 10A:4-9.2; a fair tribunal, N.J.A.C. 10A:4-9.15; a limited right to call

witnesses, N.J.A.C. 10A:4-9.13; a limited right to confront and cross-examine

adverse witnesses, N.J.A.C. 10A:4-9.14; a written statement of the evidence

relied upon and the reasons for the sanctions imposed, N.J.A.C. 10A:4-9.24; and

the assistance of counsel-substitute in certain circumstances, N.J.A.C. 10A:4-

9.12. Nelson received due process.

      The record on appeal demonstrates the HO did not disregard N.J.A.C.

10A:4-9.15(a). Nelson claimed someone else wrote the email, but the HO found

it unlikely that another individual prepared the email, written from Nelson's

account. The evidence on which the HO relied corroborates Nelson wrote the

email and threatened bodily injury to an officer. The email at issue concerned


                                                                           A-0067-20
                                       4
the author's frustration about missing property. Nelson's handwritten statement

confirms he was "missing stuff" and he expressed at the hearing displeasure

about missing items.    Indeed, a telephone recording memorialized Nelson

complaining about the same information in the email.        Thus, there exists

substantial evidence that Nelson committed the prohibited offense.

      To the extent we have not addressed Nelson's remaining contentions, we

conclude they are without sufficient merit to warrant attention in a written

decision. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-0067-20
                                      5