FRITS TISSERAND 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NOT FOR PUBLICATION WITHOUT THE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-3736-19

FRITS TISSERAND,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted November 10, 2021 – Decided February 9, 2022

                   Before Judges Fuentes and Gilson.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Frits Tisserand, appellant pro se.

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

PER CURIAM
      Frits Tisserand appeals from a final agency decision by the Department of

Corrections (Department), which imposed disciplinary sanctions on him while

he was serving a sentence in State prison for encouraging others to riot in

violation of prohibited act *.252, N.J.A.C. 10A:4-4.1(a). We reverse because

the finding of guilt was not supported by substantial credible evidence.

                                       I.

      The charge against Tisserand arose out of a disturbance that occurred at

Southern State Correctional Facility (Southern) in April 2020, during the

COVID-19 pandemic. At that time, Tisserand was an inmate at Southern and he

was housed in "Unit 2-Right" (Unit 2). That unit, which consisted of several

wings and a common day-space area (the common area), had been designated as

a "quarantine unit" for housing inmates who had been exposed to other inmates

or staff who had symptoms of COVID-19.

      By the morning of April 9, 2020, there were forty inmates housed in Unit

2. That day, Department staff began moving thirty-five additional inmates from

other housing units to Unit 2. After twenty-three of those new inmates had been

moved in, inmates already in Unit 2 began to demand that no additional inmates

should be brought to Unit 2. Sometime after 9 p.m., as the twelve remaining

new inmates were being processed into Unit 2, some inmates entered the Unit's


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common area and demanded that no additional inmates be moved into Unit 2.

The inmates were shouting and making threats both to staff and the twelve

inmates being moved in. Custody staff called a "lock-up" that required all

inmates to return to their bunks in the wings to be counted.

      Some inmates in Unit 2 ignored that direction and remained in the

common area. At approximately 9:40 p.m., several inmates pushed a table

against the gate leading to the Unit attempting to block anyone from entering

Unit 2. A Department officer repeatedly instructed all inmates in Unit 2 to return

to their bunks, but the inmates already in the common area remained there.

Corrections officers who were monitoring the Unit via surveillance cameras did

not observe any inmates leave the common area and return to their bunks.

      In response to this situation, the Department's Special Operations Group

and a K-9 dog unit were sent to Unit 2 to restore order. By the early morning

hours of April 10, 2020, all sixty-three inmates in Unit 2 had been secured,

identified, processed, and transferred to a quarantine unit at South Woods State

Prison. No staff or inmates were reported to be injured during the incident.




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      Tisserand was charged with committing prohibited act *.252, encouraging

others to riot. 1 The other sixty-two inmates were also charged with committing

prohibited act *.252 or other prohibited acts. Tisserand was served with the

charge on April 11, 2020. Thereafter, he was assigned counsel substitute and

pled not guilty.

      A hearing was conducted over several days between April 13, 2020, and

April 29, 2020. The evidence presented at the hearing included seven hours of

video footage from the incident at Unit 2 on April 9 and 10, 2020, witness

statements, and staff reports. The evidence was used against all sixty-three

inmates alleged to have participated in the disturbance.

      Due to the COVID-19 pandemic, live testimony was not presented;

instead, witnesses submitted written statements and Tisserand, and the other

inmates, had the right to submit written questions to those witnesses. Tisserand

also made a statement in which he claimed he was in the wing near his bunk

talking with other inmates and packing up his "stuff because [he] knew




 1 On January 15, 2021, the Department adopted amendments to Title 10A
Chapter 4 Inmate Discipline. One of the amendments consolidated prohibited
act *.252, encouraging others to riot, with *.251, rioting. As such, the current
administrative code reads "*.251 rioting or encouraging others to riot." See
N.J.A.C. 10A:4-4.1(a)(1) (2021);  53 N.J.R. 923(a) (May 17, 2021).
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something bad was happening." Statements from other inmates corroborating

Tisserand's account were also submitted.

      Based on the evidence, the hearing officer found that Tisserand was part

of a large group of inmates who acted in concert, the inmates were repeatedly

ordered to go to their wings for counting, Tisserand heard and ignored the

orders, and Tisserand was part of a group of inmates encouraging other inmates

to riot. In making those findings, the hearing officer did not credit the statements

from Tisserand or the other inmates who supported Tisserand's statement.

Instead, the hearing officer found that those statements were suspect because the

inmates were essentially supporting each other for their own self-interests.

      The hearing officer noted that the evidence did not identify the specific

role of each inmate, in part because the inmates were wearing COVID-19 masks

and gathered in large groups. Nevertheless, the hearing officer found that all

the inmates had been given specific orders to return to their bunks, they

disobeyed those orders, and that non-compliant behavior encouraged other

inmates not to comply.

      After he was found guilty of prohibited act *.252, Tisserand was

sanctioned to 210 days of administrative segregation, ninety days of lost

commutation time, and ten days of lost recreational privileges. In imposing


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those sanctions and rejecting Tisserand's arguments for leniency, the hearing

officer found that the behavior could have led to violence and needed to be

deterred. The hearing officer also noted that Tisserand did not have a prior

history of discipline and, therefore, the hearing officer did not impose the

maximum sanctions allowable.

         Tisserand administratively appealed.   On May 7, 2020, an Assistant

Superintendent, acting for the Department, issued a final agency decision

upholding the finding of guilt and the sanction imposed. Tisserand now appeals

to us.

                                        II.

         On this appeal, Tisserand makes four arguments, contending (1) his due

process rights were violated; (2) the hearing officer ignored certain evidence;

(3) there was insufficient evidence establishing that he encouraged others to riot;

and (4) his counsel substitute was ineffective. Having reviewed the record, we

hold that there was insufficient evidence to establish that Tisserand encouraged

others to riot.

         Our review of an agency determination is limited. In re Stallworth,  208 N.J. 182, 194 (2011); Brady v. Bd. of Rev.,  152 N.J. 197, 210 (1997). We will

not reverse a decision of an administrative agency unless it is "arbitrary,


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capricious, or unreasonable, or . . . not supported by substantial credible

evidence in the record as a whole." Stallworth,  208 N.J. at 194 (quoting Henry

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

      The Department has broad discretion in matters regarding the

administration of a prison facility, including disciplinary infractions by

prisoners. Russo v. N.J. Dep't of Corr.,  324 N.J. Super. 576, 583 (App. Div.

1999). "Prisons are dangerous places, and the courts must afford appropriate

deference and flexibility to administrators trying to manage this volatile

environment." Id. at 584. "A reviewing court 'may not substitute its own

judgment for the agency's, even though the court might have reached a different

result.'" Stallworth,  208 N.J. at 194 (quoting In re Carter,  191 N.J. 474, 483

(2007)). Nevertheless, "our review is not 'perfunctory,' nor is 'our function . . .

merely [to] rubberstamp an agency's decision[.]'" Blanchard v. N.J. Dep't of

Corr.,  461 N.J. Super. 231, 239 (App. Div. 2019) (alterations in original)

(quoting Figueroa v. N.J. Dep't of Corr.,  414 N.J. Super. 186, 191 (App. Div.

2010)). Instead, "[w]e are constrained to engage in a 'careful and principled

consideration of the agency record and findings.'" Ibid. (quoting Williams v.

Dep't of Corr.,  330 N.J. Super. 197, 204 (App. Div. 2000)).




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      The DOC regulations provide that "[a] finding of guilt at a disciplinary

hearing shall be based upon substantial evidence that the inmate has committed

a prohibited act." N.J.A.C. 10A:4-9.15(a). Substantial evidence needed to

sustain guilt of an infraction is "such evidence [that] 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 addition,

the hearing officer must specify the evidence relied on in making a finding of

guilt. N.J.A.C. 10A:4-9.15(b).

      Prohibited act *.252 states that a prisoner is subject to major discipline for

"encouraging others to riot." N.J.A.C. 10A:4-4.1(a)(1)(xii). The regulations do

not define "encouraging" or "riot."      See N.J.A.C. 10A:4-1.3 (setting forth

definitions for inmate discipline, but that provision does not define

"encouraging" or "riot").

      Tisserand was not charged with participating in the riot. Accordingly, we

focus on whether there was evidence that Tisserand encouraged other prisoners

to riot. The ordinary dictionary meaning of "encourage" is to make someone

"more determined" or "more likely to do something," or to make something

"more appealing or more likely to happen." Encourage, Merriam-Webster,




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https://www.merriam-webster.com/dictionary/encourage (last visited Jan. 25,

2022).

      The hearing officer's and Department's decision focused and relied on the

surveillance video from Unit 2 and the written testimony of corrections officers.

The hearing officer found that the surveillance video showed "a majority" of the

inmates congregating in the common area. The hearing officer acknowledged

that the inmates could not be identified on the video because they were wearing

masks or facing away from the camera. Nonetheless, the hearing officer found

that the video shows inmates in the common area "did not disperse," because no

inmate, "after receiving warnings, complied with staff orders."

      Neither the hearing officer nor the Department made any explicit finding

concerning Tisserand. He was not identified in the video and no officer testified

that Tisserand was in the common area during the incident, that he encouraged

others to participate in the riot, or that he failed to return to his bunk. Instead,

the Department relies on a general finding that no inmate was seen leaving the

common area after being ordered to do so. That general finding does not furnish

a reasonable basis for concluding that Tisserand encouraged others to riot.

      Tisserand contended that he was not in the common area when the

disturbance took place; rather, he submitted a written statement that he was in


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his wing near his bunk bed. He supported that contention with two written

statements from other prisoners.      The hearing officer did not find those

statements credible, reasoning that the inmate-witnesses had the opportunity to

collaborate on their stories while quarantined together after the incident.

Although the hearing officer acted within her discretion in making that

determination, she identified no evidence to support a finding that Tisserand

encouraged others to riot.

      Instead, the hearing officer reasoned that "an [inmate's] specific role in

the disturbance is not relevant" because "[a]ny behavior that is not compliant

with staff orders can be viewed as encouraging non-compliant behaviors from

others." That reasoning does not establish substantial credible evidence that

Tisserand encouraged others to riot because there was no evidence that

Tisserand was even in the common area. Consequently, there was not even a

showing that Tisserand did not comply with the order to return to his bunk.

      We are mindful of the need for security and safety at prisons. We are also

aware that the Department has greater expertise than we do in assessing safety

and security at its facilities. Basic due process, however, requires that there be

some evidence that a particular prisoner encouraged a situation; a prisoner

cannot be found guilty simply because he or she was in the Unit where the


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situation occurred. "[D]isciplinary actions against inmates must be based on

more than a subjective hunch, conjecture[,] or surmise of the factfinder."

Figueroa,  414 N.J. Super. at 191.

      Having determined that there was insufficient evidence to support the

charge, we need not address Tisserand's other arguments. The finding of guilt

of prohibited act *.252 is reversed and the sanctions imposed are vacated.

      Reversed.




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