WALEED SALEH 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NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0681-20

WALEED SALEH,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted December 8, 2021 – Decided January 5, 2022

                   Before Judges Gilson and Gooden Brown.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Waleed Saleh, appellant pro se.

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

PER CURIAM
      Waleed Saleh, an inmate at Bayside State Prison, appeals from the

September 28, 2020 final agency decision of the New Jersey Department of

Corrections (DOC) following a disciplinary hearing. The DOC upheld a hearing

officer's finding of guilt and imposition of sanctions for Saleh's commission of

prohibited act *.009, "misuse, possession, distribution, sale, or intent to

distribute or sell, an electronic communication device, equipment, or peripheral

that is capable of transmitting, receiving, or storing data and/or electronically

transmitting a message, image, or data that is not authorized for use or

retention," in violation of N.J.A.C. 10A:4-4.1(a)(1).1 Saleh was also found

guilty of prohibited act .754, giving or accepting money from a member of

another inmate's family or another inmate's friend with an intent to circumvent

any correctional facility or Departmental rule or with an intent to further an

illegal or improper purpose, but does not contest his adjudication on that charge.

We affirm.

      We glean these facts from the record. An ongoing investigation conducted

by Investigator Kerr-Duane Merrington, Special Investigations Division (SID),



 1 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.
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revealed that Saleh had possessed and used a cellular telephone while housed at

East Jersey State Prison (EJSP) contrary to prison regulations. In a September

17, 2020 report, Merrington detailed the investigation during which Merrington

obtained and reviewed transcripts of institutional telephone calls and JPay2

messages belonging to Saleh, discussing dates and times of cell phone calls and

videos not made on the institutional phone system but rather through video call

apps Google Duo (Duo), WhatsApp, and FaceTime.

      The transcripts also revealed "detailed financial transactions completed

through mobile payment services Venmo and Cash App." Additionally, the

investigation disclosed that Saleh had on several occasions instructed family

members to send money to inmate Michael Fields's girlfriend and inmate

Dammen McDuffie's daughter. Based on the information gleaned during the

investigation, a targeted search was conducted on August 5, 2020, which

uncovered a cellular telephone and USB charger in McDuffie's possession.

McDuffie had previously shared a bunk with Saleh during the times when the




2
  JPay is a prison service provider that offers inmates, among other things, video
visitation, "a kind of Skype for the incarcerated." David Horton, Clause
Construction: A Glimpse into Judicial and Arbitral Decision-Making, 
68 Duke
L.J. 1323, 1324 (2019).


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cell phone usage and financial transactions occurred. No cell phone was found

in Saleh's possession.

      On September 18, 2020, a DOC officer served Saleh with the *.009 charge

and, after an investigation, referred the charge to a hearing officer for further

action.    Saleh was offered but refused counsel substitute.     After multiple

postponements to gather additional evidence, the hearing began on September

25, 2020. Saleh pled not guilty to the charge and made a statement explaining

that the transcript references to Duo by his seven-year-old son were

misconstrued.    According to Saleh, his son refers to JPay and JPay video

messaging as Duo in the transcripts "because he thinks [Saleh is] at work" and

"does [not] know [he is] in jail." In support, Saleh submitted witness statements

from four inmates, Joseph Demauex, Vincenzo Viola, Ernest James, and Donte

Hatcher.

      Demauex and Viola both stated Saleh's son refers to "Jpay videos" as

"Duo." Hatcher stated Saleh sends videos to his son "multiple times a day."

James, Saleh's bunkmate, stated he had never "seen Saleh . . . using a cellphone

in or outside the area."    Saleh requested confrontation of Merrington and

inquired whether any "forensic analysis" of the seized phone revealed any

connections to Saleh's contacts or relatives. Merrington replied "phone not back


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yet." In a closing statement, Saleh admitted he was "guilty of sending money to

other inmate[s' family members]" but denied possession or use of a cell phone.

      In finding Saleh guilty of the *.009 charge, the hearing officer determined

"[Saleh] offer[ed] no statement," and "no evidence to discredit . . . staff reports"

and concluded Saleh "used a cellular telephone while housed at EJSP." Further,

according to the hearing officer, "[c]onfrontation found no evidence to discredit

. . . [s]taff [r]eports" and witness statements "provided no information to

exonerate." Saleh was sanctioned to 120 days in the Restrictive Housing Unit,

120 days loss of commutation time, and permanent loss of contact visits.

      Saleh filed an administrative appeal, asserting "[he] never possessed . . .

or used [a] cellphone," "forensic evidence [has not] been reviewed," and he

"[n]ever had a charge during [his] entire [eight] year[s of] incarceration." On

September 28, 2020, Assistant Superintendent James Russo upheld the guilty

finding and sanctions. Russo determined the hearing officer's decision "was

based on substantial evidence," and "[t]here was compliance with . . . procedural

due process safeguard[s]."      In rejecting Saleh's plea for leniency, Russo

concluded "[t]he sanctions imposed . . . [were] appropriate for the infraction."

This appeal followed.




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      On appeal, Saleh argues "the record evidence . . . is woefully incomplete,

and does not satisfy the substantial evidence standard for assessing an inmate's

guilt." Saleh also requests a remand for DOC "to conduct a forensic examination

of the confiscated cellular phone." Following his administrative appeal, Saleh

moved before this court for a limited remand to conduct a forensic examination

of the phone. We denied that motion. Thus, on this appeal, we only consider

Saleh's challenge to the sufficiency of the evidence.

      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

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


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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)). Nonetheless, we "may not

substitute [our] own judgment for the agency's, even though [we] might have

reached a different result." In re Stallworth,  208 N.J. 182, 194 (2011) (quoting

In re Carter,  191 N.J. 474, 483 (2007)).

      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)).

      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. See N.J.A.C. 10A:4-9.1 to -9.28. Those rights include


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

witnesses, N.J.A.C. 10A:4-9.14, the opportunity to present witnesses, N.J.A.C.

10A:4-9.13, 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. Saleh contends, "besides

his seven-year[-]old son's innocent, harmless, innocuous statement concerning

his request for his father to send him a 'DUO,'" there was "no credible and

objective evidence connecting [him] to the electronic device." However, the

transcripts of Saleh's institutional phone calls revealed several unexplained

references to "dates and times of telephone calls that were not made on the

institutional phone system." Saleh's contention is also belied by his mention of

Duo to individuals other than his son.

      Lastly, the proceedings were conducted in accordance with all applicable

due process requirements, and the sanctions imposed were commensurate with




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the severity of the infraction and authorized under N.J.A.C. 10A:4-5.1 for

asterisk offenses.

      Affirmed.




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