WILLIAM MENTER 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NOT FOR PUBLICATION WITHOUT THE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-1249-20
WILLIAM MENTER,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted March 7, 2022 – Decided March 16, 2022

                   Before Judges Fasciale and Vernoia.

                   On appeal from the New Jersey Department of
                   Corrections.

                   William Menter, appellant pro se.

                   Matthew J. Platkin, Acting Attorney General, attorney
                   for respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Stephanie Trotter, Deputy
                   Attorney General, on the brief).

PER CURIAM
      William Menter appeals from a December 3, 2020 final agency decision

by the New Jersey Department of Corrections (DOC) finding Menter guilty of

committing prohibited act *.002 (assault of any person), N.J.A.C. 10A:4-

4.1(a)(1)(ii), and imposing sanctions. Menter is incarcerated at New Jersey

State Prison, serving a life sentence with a mandatory-minimum term of one

hundred years.

      The prohibited act pertains to an incident that required Correctional

Officer Mohammed to respond to a code 33 in Menter's cell unit.1 A correctional

officer called the code after Menter refused to "give up the phone" he was using.

Mohammed, who assisted Correctional Officer Walls, observed Menter standing

by his cell door with hands raised in "an aggressive manner." Menter refused to

comply with the officers' orders to get on the ground.

      Walls deployed chemical spray after Menter failed to comply. Menter

then struck them on their bodies. Sergeant Mihalik stated that when she and a

suited team of officers responded to the code 33, Menter was cuffed and secured

in a cell. A witnessing inmate stated that Menter was agitated by an earlier




 1 A code 33 alerts DOC staff of the existence of an emergency in the prison
facility requiring officer assistance.
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incident where his cell door was not opened for dinner at the same time as the

other inmates.

      Menter pled not guilty at the disciplinary hearing, as he claims that he

was, in fact, the victim of an assault by Walls, Mohammed, and other officers

gathered at his cell during the code 33. Menter requested a polygraph, witness

statements, confrontation of witnesses, and surveillance video footage. A prison

administrator denied his request for a polygraph.     Walls, Mohammed, and

Mihalik provided statements, to which Menter had the opportunity to confront

with questions. The hearing officer also denied Menter's request for video

footage because it was "irrelevant."

      After reviewing the evidence and witness statements, the hearing officer

found Menter guilty of assault under N.J.A.C. 10A:4-4.1(a)(1)(ii), imposed

sanctions of 30 days of loss of recreation privileges, 180 days of loss of

commutation time, and 200 days in the Restorative Housing Unit. Menter

administratively appealed. The DOC then rendered its decision upholding the

hearing officer's decision.

      On appeal, Menter argues:

            POINT I

            THE   DISCIPLINARY   HEARING   OFFICER
            VIOLATED [MENTER'S] DUE PROCESS RIGHTS,

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              AS SET FORTH IN AVANT V. CLIFFORD2, WHEN
              THE HEARING OFFICER MADE FINDINGS NOT
              BASED ON SUFFICIENT CREDIBLE EVIDENCE IN
              THE RECORD.

              POINT II

              [MENTER'S] PROCEDURAL DUE PROCESS
              RIGHTS WERE VIOLATED WHEN THE HEARING
              OFFICER DENIED HIM ACCESS TO THE AREA
              VIDEOTAPE THAT WOULD HAVE SHOWN HE
              WAS TELLING THE TRUTH ABOUT THE
              INCIDENT.

              POINT III

              [MENTER'S] PROCEDURAL DUE PROCESS
              RIGHTS WERE VIOLATED WHEN THE HEARING
              OFFICER DENIED HIM CREDIT FOR THE TIME
              HE HAD SPENT IN PRE-HEARING DETENTION
              HOUSING: CONTRARY TO [N.J.A.C.] 10A:4-
              10.1(f).3 (Not raised below).

        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



2
    Avant v. Clifford,  67 N.J. 496 (1975).
 3 N.J.A.C. 10A:4-10.1(f) was recodified to N.J.A.C. 10A:5-6.1(f).
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matters of prison policy, regulation[,] and administration." Ortiz v. N.J. Dep't

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

      Menter's contention that he was denied his due process right to present

documentary evidence is without merit. 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,  67 N.J. at 525-30, 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 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.

      Menter contends that security camera evidence from the South Compound

hallway and stairwell, from 6:00 p.m. to 7:15 p.m., would support his claim that

a group of officers attacked him without provocation. Menter argues the footage

would prove that Mihalik and the suited team were already in his unit prior to

any code being called and contradict the witnesses' accounts. We agree with the

hearing officer that any video of the hallway and stairwell is irrelevant to

Menter's claims. The incident occurred on the third floor at Menter's cell. There

is no video footage available for that area, and any video of the suited team using

the South Compound hallway and stairwell would not refute Mohammed and


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Walls' accounts that Menter assaulted them.       As such, the hearing officer

properly denied Menter's request for the surveillance video.

      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. Here, we are satisfied

that Menter was afforded all his due process rights. He was provided written

notice of the violation, given a written statement of reasoning, afforded counsel-

substitute, and had the opportunity to confront adverse witnesses, all before an

impartial hearing officer.

      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)).


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      We conclude that the hearing officer's finding of guilt was based on

substantial evidence in the record. The hearing officer listened to Menter's

phone call, the end of which started the altercation, and heard the officer asking

Menter for the phone. Walls, Mohammed, and Mihalik's statements were mostly

consistent with each other and contradicted Menter's claims that a group of

officers attacked him. Menter confronted the witnesses with questions, and the

hearing officer assessed their credibility. Therefore, we find no reason to disturb

the final agency decision upholding the hearing officer's finding.

      Menter also argues that he did not receive credit for time spent in Pre -

hearing Disciplinary Housing, but we will not consider this argument because

he failed to raise it on appeal to the DOC. See Nieder v. Royal Indem. Ins. Co.,

 62 N.J. 229, 234 (1973) (refusing to consider issues not properly presented to

the trial court unless they concern jurisdiction or "matters of great public

interest").

      Affirmed.




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