Rigoberto Mejia v. New Jersey Department of Corrections

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0710-13T4

RIGOBERTO MEJIA,
APPROVED FOR PUBLICATION
Appellant,
August 11, 2016

v. APPELLATE DIVISION

NEW JERSEY DEPARTMENT OF
CORRECTIONS,

Respondent.
_________________________

Argued June 16, 2016 – Decided August 11, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from the New Jersey Department of
Corrections.

Alexander Shalom argued the cause for
appellant (American Civil Liberties Union of
New Jersey Foundation, attorneys; Mr.
Shalom, Edward Barocas, Jeanne LoCicero, and
Rebecca Livengood, on the brief; Rigoberto
Mejia, on the pro se brief).

Joseph Micheletti, Assistant Chief Deputy
Attorney General, argued the cause for
respondent (Robert Lougy, Acting Attorney
General, attorney; Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Dianne M. Moratti, Deputy Attorney General,
and Alex J. Zowin, Deputy Attorney General,
on the briefs).

The opinion of the court was delivered by

KOBLITZ, J.A.D.
 In this prison disciplinary appeal, Rigoberto Mejia argues

that the sanction of three and one-half years in administrative

segregation was improper. Mejia is a prisoner at New Jersey

State Prison currently serving a sentence with a mandatory

minimum of forty years imposed in 1995 for murder and associated

crimes. Mejia was originally sentenced to death for the

shooting of another undocumented worker over $750 in December

1991.1 Mejia, who is now fifty-seven years old and whose first

eligibility for parole is in 2031, appeals from an August 8,

2013 disciplinary action taken against him by the New Jersey

1
In State v. Mejia, 141 N.J. 475, 485-86 (1995), our Supreme
Court reversed Mejia's death penalty sentence, holding jury
instructions were required, in the guilt phase, on the ultimate
outcome of a conviction of murder with the intent to kill–
capital murder—versus murder with the intent to cause serious
bodily injury—which is not death-eligible. The Court held the
instruction should advise the jury that it could return a non-
unanimous guilty verdict as to the mental state of a defendant
who the jury unanimously found had committed a homicide. Id. at
486. If the jury was not unanimous as to the mens rea, the
defendant would then not be eligible for the death penalty.
Ibid. The holding in Mejia was no longer authoritative
following the 1992 New Jersey constitutional amendment. See
State v. Cooper, 151 N.J. 326, 376-77 (1997), cert. denied, 528
U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). The
Legislature later repealed the death penalty in 2007. See State
v. Troxell, 434 N.J. Super. 502, 510 (App. Div.) (explaining the
legislative action), certif. denied, 221 N.J. 285 (2014).

2 A-0710-13T4
Department of Corrections (DOC).2 We reverse the sanction

imposed because it was arbitrary and unreasonable.

On July 15, 2013, Mejia threw a bucket of hot water, urine

and feces on a corrections officer who was walking by his cell.

The substance also made contact with another corrections officer

who was below Mejia's cell. Mejia claimed he had done so

because he was fearful that the "officer wanted to jump him."

A five-man extraction team was called to remove Mejia from

his cell. Initially, officers were unable to enter the cell

because Mejia had tied a bedsheet to the door, which had to be

cut by the responding officers. Officers also utilized "OC

spray," a chemical agent, to subdue Mejia before finally

extracting him.

Mejia was charged with several asterisk offenses:3 1) two

counts of *.012, "throwing bodily fluid at any person or

otherwise purposely subjecting such person to contact with a

bodily fluid"; 2) *.154, "tampering with or blocking any locking

device"; and 3) *.306, "conduct which disrupts or interferes

with the security or orderly running of the correctional

2
We hereby grant the DOC's June 14, 2016 motion to supplement
the record with certifications and documents relating to Mejia's
mental health screening.
3
Asterisk offenses "are considered the most serious and result
in the most severe sanctions." N.J.A.C. 10A:4-4.1(a); see
N.J.A.C. 10A:4-5.1(a) (providing the schedule of sanctions for
asterisk offenses).

3 A-0710-13T4
facility." See N.J.A.C. 10A:4-4.1(a). At the administrative

hearing, Mejia pled guilty to one charge of throwing bodily

fluid on a person, and not guilty on the remaining charges.

Although Mejia waived counsel substitute, according to the

hearing officer's adjudication Form 259-A, a counsel substitute

was present for "translation purposes." Following the hearing,

Mejia was adjudicated guilty on all four charges.

The hearing officer sanctioned Mejia to the maximum period

of administrative segregation4 on each charge, all consecutive to

each other. On the first bodily fluid charge, Mejia received

fifteen days of disciplinary detention, 365 days loss of

commutation time, 365 days of administrative segregation, and 90

days loss of television, phone and radio privileges. On the

4
The DOC argues "solitary confinement" does not exist in the New
Jersey state penal system and did not exist at the time Mejia
was sanctioned. "Administrative segregation" is defined as
"removal of an inmate from the general population of a
correctional facility to a close custody unit because of one or
more disciplinary infractions or other administrative
considerations." N.J.A.C. 10A:1-2.2. The DOC contends
administrative segregation is not solitary confinement because
inmates have access to several services, including "five hours
of recreation outside of [their] cell each week" and regular
reviews by the mental health staff through the locked cell door.
Mejia's mental health records reflect he attended one group
session for stress management while housed on administrative
segregation for more than two-and-one-half years. "Disciplinary
detention" is the "removal of an inmate from the general
population to a short-term close custody unit because of a
disciplinary infraction(s)." Ibid. We were informed at oral
argument that during disciplinary detention an inmate has no
access to group sessions, recreation or privileges.

4 A-0710-13T4
second bodily fluid charge, Mejia received fifteen days of

disciplinary detention, 365 days loss of commutation time, 365

days administrative segregation, and 30 days loss of recreation

privileges. On the tampering with a locking device charge,

Mejia received time served in disciplinary detention, 180 days

loss of commutation time, 180 days of administrative

segregation, and 30 days loss of recreation privileges.

Finally, for the conduct that disrupts charge Mejia received

time served in disciplinary detention and 365 days of

administrative segregation. The hearing officer ran all of the

sanctions consecutively, other than the disciplinary detention

sanctions. Mejia's sanctions totaled 30 days of disciplinary

detention; 910 days loss of commutation time; 90 days loss of

television, phone and radio privileges; 60 days loss of

recreation privileges; and 1275 days of administrative

segregation.

Under the "reasons for sanctions" portion of the

adjudication form, the hearing officer noted Mejia "must be held

responsible for his actions," the behavior was "disgusting," and

it had caused the corrections officers to seek medical

attention. Although the two officers were medically examined,

the record contains no evidence of any injuries to either of

them due to this incident.

5 A-0710-13T4
 On July 22, 2013, Mejia filed an administrative appeal of

the disciplinary decision written in Spanish. Within three

weeks, the Assistant Superintendent of New Jersey State Prison

upheld the decisions regarding both the adjudication and the

sanctions in general language without directly addressing any

issue raised. In the "explanation" portion of the form, the

Assistant Superintendent stated: "My review of this issue

reveals that there was compliance with the New Jersey

Administrative Code on inmate discipline, which prescribes

procedural safeguards, and the charge was adjudicated

accordingly. The preponderance of evidence presented supports

the decision of the Hearing Officer and the sanction rendered is

appropriate. There appears to be no violation of standards."

In October 2013, Mejia filed an appeal to this court. Six

months later, the DOC filed a successful motion for a remand to

reconsider Mejia's administrative appeal after its translation

into English. On June 6, 2014, after the appeal was translated,

the Office of the Administrator for New Jersey State Prison

again upheld the hearing officer's decision, this time rejecting

the specific arguments raised by Mejia almost a year earlier.5

5
Mejia argued that, contrary to the hearing officer's report, he
asked for a staff member legal representative at the hearing,
and told the hearing officer that he had only seven years of
schooling and did not understand English well. He stated the
(continued)

6 A-0710-13T4
 In his pro se appeal to this court Mejia argued he had

mental health needs and had not received the mental health

screening required by N.J.A.C. 10A:4-9.5(c)(2), which requires

that a list of inmates with a pending disciplinary infraction be

forwarded to the "Mental Health Unit for a determination as to

which inmates should be considered special needs inmates." The

DOC responded to this issue in its initial brief in one

paragraph, stating "there is no evidence of mental health issues

and Mejia is not a special needs inmate," citing to notations by

the hearing officer on DOC forms stating "no evid. of MH

[(mental health)]." We sua sponte ordered the American Civil

Liberties Union, with its consent, to represent Mejia on appeal

and file a supplemental brief on his behalf.

In response to Mejia's supplemental brief raising the

argument that he suffered from mental illness and was

particularly vulnerable to the negative effects of long-term

solitary confinement in administrative segregation, the DOC for

the first time revealed Mejia had been screened for mental

health issues and was routinely reviewed, albeit in a cursory

fashion, pursuant to the settlement of a federal case in 1999.

See D.M. v. Terhune, 67 F. Supp. 2d 401, 403-05 (D.N.J. 1999).

(continued)
inmate interpreter was only available at the end of the hearing,
and he was denied the material and time to prepare.

7 A-0710-13T4
The DOC further informed us at oral argument that, pursuant to

an August 14, 2015 "Request for Rule Exemption" 6 (Rule

Exemption), Mejia had been returned to the general population

housing at an unknown date prior to oral argument, but after

February 8, 2016, when the records reflect he remained in

administrative segregation. The Rule Exemption, submitted to us

after oral argument, eliminated disciplinary detention and

limited administrative segregation "for multiple offenses

imposed as a result of the same incident" to 365 days. The

Rule Exemption also states:

Studies have shown that isolation,
under certain circumstances, exacerbates
mental health deterioration. As such, the
elimination of [disciplinary] detention, and
the immediate transport of an inmate to a
less restrictive administrative segregation
unit upon adjudication, will have a positive
impact on the inmate population.

Similarly, maximizing inmate exposure
to no more than 365 days of administrative
segregation per incident, rather than per
infraction, will decrease the likelihood of
isolation.

6
N.J.A.C. 10A:1-2.4 authorizes the Commissioner to "relax and
exempt rules and regulations for the administration of
correctional facilities . . . within the Department of
Corrections" to avoid "undue hardship, unfairness or injustice."
Although the DOC provided a document titled "Request for Rule
Exemption," and counsel stated at oral argument that a Rule
Exemption had been applied to Mejia, we were not supplied with
any official document designated as an approval of this request.

8 A-0710-13T4
The Rule Exemption attachments include "a replacement list of

prohibited acts found in N.J.A.C. 10A:4-4.1(a)" separating "the

original list into the 5 new Categories from the Rule Exemption"

including "the applicable number of days of Administrative

Segregation per category." The sanction range for *.012,

"Throwing bodily fluid at any person," is 181 to 365 days. The

other two infractions for which Mejia was convicted carry a

sanction range of 91 to 180 days. Thus, the infraction of

*.306, "conduct which disrupts or interferes with the security

or orderly running of the correctional facility," has been

downgraded to an infraction carrying a possible sanction of no

more than 180 days in administrative segregation rather than the

365 days Mejia received.

The scope of our review of an agency decision is limited.

Capital Health Sys., Inc. v. N.J. Dep't of Banking & Ins., ___

N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 14).

"Ordinarily, an appellate court will reverse the decision of the

administrative agency only if it is arbitrary, capricious or

unreasonable or it is not supported by substantial credible

evidence in the record as a whole." Henry v. Rahway State

Prison, 81 N.J. 571, 579-80 (1980). "Normally, when reviewing

agency decisions, we defer to matters that lie within the

special competence of an administrative tribunal." Balagun v.

9 A-0710-13T4
N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003).

"[S]uch deference is appropriate because it recognizes that

'agencies have the specialized expertise necessary to enact

regulations dealing with technical matters and are "particularly

well equipped to read . . . and to evaluate the factual and

technical issues that . . . rulemaking would invite."'" N.J.

Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of

Agric., 196 N.J. 366, 385 (2008) (quoting In re Freshwater

Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)). "Our role

is to engage in a 'careful and principled consideration of the

agency record and findings.'" DeCamp v. N.J. Dep't of Corr.,

386 N.J. Super. 631, 636 (App. Div. 2006) (quoting Williams v.

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

"[A]lthough the scope of review of an agency's decision is

circumscribed, an appellate court's review of an agency decision

is 'not simply a pro forma exercise in which [the court] rubber

stamp[s] findings that are not reasonably supported by the

evidence.'" In re Taylor, 158 N.J. 644, 657 (1999) (second and

third alterations in original) (quoting Chou v. Rutgers, 283

N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J.

374 (1996)).

10 A-0710-13T4
 Mejia argues his appeal of administrative segregation is

not moot7 because, should he be convicted of any further

infraction, the severity of his prior sanction will be

considered when imposing punishment. This argument raises the

question of what criteria are used in imposing sanctions.

N.J.A.C. 10A:4-9.17, titled "Disciplinary sanctions," provides

in pertinent part:

(a) The disciplinary action may be
individualized by considering such factors
as the:

1. Offender's past history of
correctional facility adjustment;

2. Setting and circumstances of the
prohibited behavior;

3. Involved inmate's account;

4. Correctional goals set for the
inmate; and

5. The inmate's history of, or the
presence of, mental illness.

[(Emphasis added).]

The DOC also provided us with a copy of an "internal policy"

statement, ADM.008.000, titled "Inmate Disciplinary Hearing

Program: Mission, Goals and Objectives," revised on April 28,

7
The DOC has not raised the question of mootness. Even if the
issue were moot, we would address it because of its importance.
See Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176
N.J. 568, 583 (2003) (resolving a moot issue because of its
public significance and likelihood to reoccur).

11 A-0710-13T4
2011, and reviewed in September 2015, which states "[t]he

mission of the Inmate Disciplinary Hearing Program is to ensure

that . . . all inmate disciplinary hearings are conducted fairly

and impartially . . . ." One of the "Goals and Objectives" is

"[t]o ensure fair and equitable sanctioning of inmates . . . ."

To accomplish those ends, "monthly reports containing a

statistical breakdown of infractions, comments, and

recommendations are generated, analyzed, and distributed to

appropriate administrative staff." The DOC has provided no

information stating hearing officers are required to impose

sanctions based on the factors set forth in N.J.A.C. 10A:4-

9.17(a), or any other delineated factors.

Mejia was given the longest possible period of

administrative segregation available at the time based on the

articulated reasons that his behavior was "disgusting," he "must

be held responsible for his actions," and corrections officers

had been medically examined. Mejia was convicted of two counts

of throwing bodily fluids on another person, which is arguably

"disgusting" in any of its manifestations. See State v.

Fuentes, 217 N.J. 57, 74-75 (2014) (holding "a sentencing court

must scrupulously avoid 'double-counting' facts that establish

the elements of the relevant offense"). All inmates should be

held accountable for their actions, and the fact that the

12 A-0710-13T4
officers hit by Mejia's bodily fluids were examined medically

does not in itself reflect any injury to either of them. A

bedrock principle of fair punishment is that it be meted out the

same to individuals similarly situated. State v. Moran, 202

N.J. 311, 326 (2010) (stating our Supreme Court "often has taken

affirmative steps to ensure that sentencing and disposition

procedures, whether authorized by statute or court rule, will

not produce widely disparate results for similarly situated

defendants").

Our criminal statutes provide aggravating and mitigating

factors that must be considered and articulated on the record

prior to sentencing. N.J.S.A. 2C:44-1; see Fuentes, supra, 217

N.J. at 73; see also State v. Case, 220 N.J. 49, 54 (2014)

(stating that "[c]entral to the success of" the sentencing

"process is the requirement that the judge articulate the

reasons for imposing sentence"). The DOC regulations include

factors to be utilized in imposing sanctions, but unfortunately

leave the use of those or other "such factors" entirely to the

discretion of the hearing officer. See N.J.A.C. 10A:4-9.17(a).

The hearing officer adjudication form has a section for the

purpose of stating the reasons for the sanction. Prior to the

translation of Mejia's appeal, the DOC's generic affirmance

acknowledged the sanction imposed must be equitable, stating,

13 A-0710-13T4
"the sanction rendered is appropriate." For a sentence to be

"appropriate," it is not enough that the sentence be within the

maximum limits set forth in the Administrative Code. With such

totally discretionary sanctioning factors, a hearing officer is

not guided to distinguish among inmates convicted of the same

infraction, as evidenced by the articulated reasons for the

maximum period of isolation imposed on Mejia. Without any

regulation requiring the articulation of sanctioning factors, we

have no way to review whether a sanction is imposed for

permissible reasons and is located at an appropriate point

within the allowable range. See In re Issuance of Permit by

Dep't of Envtl. Prot., 120 N.J. 164, 172-73 (1990) (stating an

administrative agency that is performing a quasi-judicial

function is obligated to set forth basic findings of facts

supporting the ultimate conclusion so the reviewing tribunal may

sufficiently review whether the actions were arbitrary and

capricious, and whether they were within the agency's scope of

authority); see also Bailey v. Bd. of Review, 339 N.J. Super.

29, 33 (App. Div. 2001) (stating this court should not defer to

an administrative determination unless it has "confidence that

there has been a careful consideration of the facts in issue and

appropriate findings addressing the critical issues in

dispute").

14 A-0710-13T4
 We therefore reverse the sanctions imposed for Mejia's

commission of various infractions in a single incident. Under

current rules Mejia could not have been sanctioned to more than

a total of 365 days of administrative segregation. He could not

have received any time in disciplinary detention. He has thus

served more than the maximum sanction presently available. We

reverse the penalties imposed on Mejia, but affirm his guilt.

Mejia raises two other issues in his appeal: the quality of

the mental health screening and mental health services he has

been provided in prison, and the related issue of whether an

interpreter was provided to him to allow him to take advantage

of the mental health services otherwise available.8 The record

8
Following oral argument, the DOC provided us with a document
titled "Health Services Unit Internal Management Procedures"
specific to "Privacy of Care" that states: "For inmates with
special communication needs staff will obtain permission from
the inmate for use of an interpreter or telephonic translation
service and arrange for such services." Mejia's actual mental
health records reflect he was provided an interpreter for a
mental health check-up on May 6, 2016, but had not been provided
one for psychological check-ups previously. In April 2012 the
social worker recorded that Mejia's "[E]nglish is not so good
. . . It became clear that he had difficulty
understanding/communicating in [E]nglish. I was going to see
him with a translator later today, but in looking through the
EMR [(electronic medical records)] it became clear that he does
speak [E]nglish." In January 2013 the records reflect Mejia had
rejected the offer of an interpreter. See New Jersey
Administrative Office of Courts, Directive 3-04 (Mar. 22, 2004);
see also Daoud v. Mohammad, 402 N.J. Super. 57, 60 (App. Div.
2008) (holding a tenant was deprived of due process by the
court's failure to provide an interpreter); State v. Rodriguez,
(continued)

15 A-0710-13T4
provided to us does not allay our concerns with regard to these

issues. Mental health screening at times was performed through

a locked cell door in English, during which Mejia was

unresponsive to the questions asked by the mental health

professional. Based on this "data" Mejia was determined to be

oriented in all spheres and not delusional. We do not have a

sufficient record to review the mental health services provided

to Mejia against a legally required standard for prison inmates.

No hearing has been conducted; no experts have prepared reports

or testified.

Not denying his commission of at least one of the

infractions from the beginning of the appellate process, Mejia

sought relief from the penalty imposed. We have given Mejia the

relief he requested. As is true all too often, the time taken

in this appeal, including the time necessitated by the failure

of the DOC to translate Mejia's agency appeal initially, has

nullified any practical effect of this relief. Nonetheless, we

anticipate that the requirement for the consideration and

articulation of sanctioning factors by hearing officers this

opinion imposes will assure the sanctioning of state prisoners

becomes more "fair and equitable," a stated goal of the DOC.

(continued)
294 N.J. Super. 129, 145 (Law Div. 1996) (reversing two traffic
violations on the same grounds).

16 A-0710-13T4
 We affirm the findings of guilt and reverse and remand as

to the penalties imposed. We do not retain jurisdiction.

17 A-0710-13T4