NOT FOR PUBLICATION WITHOUT THE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-5377-14T3
RAFIQ SALEEM,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted February 8, 2017 – Decided March 29, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the New Jersey Department of
Corrections.
Rafiq Saleem, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Alex
J. Zowin, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant Rafiq Saleem, a New Jersey State Prison (NJSP)
inmate,1 appeals from the April 17, 2015 final agency decision of
the Department of Corrections (DOC) finding him guilty and imposing
sanctions for committing prohibited act *.003, assaulting any
person with a weapon, in violation of N.J.A.C. 10A:4-4.1.2 Because
the finding of guilt was based on substantial credible evidence
in the record and the disciplinary hearing comported with all due
process requirements, we affirm.
I.
We discern the following facts and procedural history from
the record. On April 11, 2015, Senior Corrections Officer D.
Johnson observed appellant swinging an object at his cellmate,
Hassan Harris, and both inmates exchanging closed fist punches.
Several officers immediately responded to SCO Johnson's Code 33,
which is a signal alerting other officers that there is an
emergency requiring immediate assistance. When both inmates
ignored the officer's repeated orders to stop fighting, pepper
spray was deployed and mechanical restraints were applied. Inmate
Harris advised one of the responding officers that appellant had
1
Appellant is serving a life sentence for murder.
2
N.J.A.C. 10:4-4.1 identifies the prohibited acts by numerical
designation. Offenses with designations "preceded by an asterisk
(*) are considered the most serious and result in the most severe
sanctions . . . ." N.J.A.C. 10:4-4.1(a).
2 A-5377-14T3
swung a lock in a sock at him. A lock in a sock was, in fact,
recovered from the cell and photographed. In addition, a video
recording from a camera on the unit depicted appellant swinging
the sock at Harris. Both inmates were decontaminated and medically
cleared before being placed in prehearing detention. Harris had
a minor scrape on top of his left hand. Appellant had no injuries.
Appellant was served with the aforementioned disciplinary
charge on April 12, 2015. A disciplinary officer investigated the
incident, determined that the charge had merit, and referred the
matter for a hearing before a disciplinary hearing officer (DHO).
The hearing began on April 13 and concluded on April 15, 2015,
after the video recording of the incident was obtained. At the
hearing, appellant was provided counsel-substitute as requested
but declined to call any witnesses on his behalf or confront any
adverse witnesses. In addition, appellant declined to enter a
plea or make a statement. Appellant was given access to all the
reports as well as a photocopy of the sock and lock. The video
recording was not provided to appellant for security reasons
inasmuch as the camera location was unknown to the inmate.
However, the DHO summarized the content of the recording.
After reviewing the reports, including the photocopy of the
sock and lock found at the scene, as well as the video recording
showing appellant "swinging a sock at [inmate] Harris[,]" the DHO
3 A-5377-14T3
determined that appellant appeared "to be the aggressor" and found
him guilty. After considering the evidence, the DHO imposed the
following sanction: fifteen days of detention; 250 days of
administrative segregation; and the loss of 250 days of commutation
time.
Through his counsel-substitute, appellant filed an
administrative appeal seeking an amendment of the charge and
leniency through relief from the sanctions. In support, appellant
argued that "the appropriate charge should be [*.803/*.003,
attempted assault with a weapon] as the tape [and] officer accounts
state that [appellant] swung and missed, and there was no evidence
of injury when examined by [the] nurse." On April 17, 2015, the
assistant superintendent of the facility upheld the decision and
denied appellant's request for leniency. This appeal followed.
On appeal, appellant argues that:
THE HEARING OFFICER RELIED UPON UNSUBSTANTIAL
EVIDENCE TO SUPPORT HER FINDING APPELLANT
GUILTY OF 'ASSAULTING ANOTHER PERSON WITH A
WEAPON', AS DESCRIBED IN #19 SANCTION(S)
. . . INDICATING HER REASONS FOR IMPOSING SUCH
A STIFF SANCTION, THAT APPELLANT (WAS SWINGING
A SOCK). SANCTION DOES NOT FIT THE ALLEGED
INFRACTION AND LOSS OF COMMUTATION CREDITS
SHOULD BE RESTORED IN FULL AND/OR MODIFIED.
II.
Our role in reviewing the decision of an administrative agency
is limited. Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186,
4 A-5377-14T3
190 (App. Div. 2010); In re Taylor, 158 N.J. 644, 656 (1999). We
will not upset the determination of an administrative agency absent
a showing that it was arbitrary, capricious, or unreasonable; that
it lacked fair support in the evidence; or that it violated
legislative policies. Henry v. Rahway State Prison, 81 N.J. 571,
579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J.
556, 562 (1963)).
We have also noted that the Legislature has provided the DOC
with broad discretion in all 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). Therefore, we may not vacate an agency's
determination because of doubts as to its wisdom or because the
record may support more than one result. De Vitis v. N.J. Racing
Comm'n, 202 N.J. Super. 484, 489-90 (App. Div. 1985), certif.
denied, 102 N.J. 337 (1985).
However, "'although the determination of an administrative
agency is entitled to deference, our appellate obligation requires
more than a perfunctory review.'" Figueroa, supra, 414 N.J. Super.
at 191 (quoting Blackwell v. Dep’t of Corr., 348 N.J. Super. 117,
123 (App. Div. 2002)). We are not "relegated to a mere rubber-
stamp of agency action," but rather we must "engage in careful and
principled consideration of the agency record and findings."
5 A-5377-14T3
Williams v. Dep’t of Corr., 330 N.J. Super. 197, 204 (App. Div.
2000) (citations omitted).
Appellant argues that the evidence does not support the
finding of guilt and the sanction is disproportionate to the
infraction. He argues further that since the video recording
depicting the incident was unavailable to him and his counsel-
substitute to review for "possible exculpatory evidence[,]" the
DHO should have downgraded the disciplinary charge in accordance
with N.J.A.C. 10A:4-9.16.3
A prison disciplinary proceeding "'is not part of a criminal
prosecution and thus the full panoply of rights due a defendant
in such a proceeding does not apply.'" Avant v. Clifford, 67 N.J.
496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480,
92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). In Avant,
our Supreme Court prescribed limited due process protections due
prisoners prior to their subjection to discipline. Id. at 519,
n.21. These protections include written notice of the charges and
3
N.J.A.C. 10A:4-9.16 authorizes the hearing officer to modify the
charge if "it becomes apparent at a disciplinary hearing that an
incorrect prohibited act is cited in the disciplinary report but
that the inmate may have committed another prohibited act[.]" Or,
the charge may be referred back to the appropriate custody staff
supervisor for handling "[i]f, after reviewing the charge, the
inmate's past disciplinary record and any special reports," the
hearing officer "concludes that the infraction is of a minor nature
that is suitable for handling as an on-the-spot correction[.]"
6 A-5377-14T3
timely adjudication; a hearing before an impartial tribunal;
representation, if requested, by counsel-substitute; a limited
ability to call witnesses and confront adverse witnesses; and a
limited ability to present documentary evidence. Id. at 525-30.
Post-hearing,
a written statement of the fact-findings is
given to the inmate by the hearing officer
. . . as to the evidence relied upon, decision
and the reason for the disciplinary action
taken unless doing so would jeopardize
institutional security. The written statement
also indicates the reason for refusing to call
a witness or to disclose items of evidence
whether it be for irrelevance, lack of
necessity or the hazards presented in
individual cases.
[Id. at 533 (citation omitted).]
These limited procedural rights, initially set forth in
Avant, are codified in a comprehensive set of DOC regulations,
N.J.A.C. 10A:4-9.1 to -9.28. DOC’s regulations also require any
"finding of guilt at a disciplinary hearing [] be based upon
substantial evidence that the inmate has committed a prohibited
act." N.J.A.C. 10A:4-9.15(a). "Substantial evidence means such
evidence as a reasonable mind might accept as adequate to support
a conclusion." Figueroa, supra, 414 N.J. Super. at 192 (citations
omitted).
Here, the record demonstrates that appellant was afforded all
due process protections. The DHO evaluated the evidence and
7 A-5377-14T3
explained her reasons for finding him guilty, a finding that was
amply supported by the evidence and forestalled the downgrading
of the charge. Upon his request, appellant was provided counsel-
substitute and afforded the opportunity to make a statement,
present witnesses, and confront adverse witnesses; all of which
he declined. Further, although the video recording was withheld
for security reasons, appellant's ability to defend himself was
not impaired by the withholding of confidential information
because the hearing officer summarized its content in her written
decision. Moreover, the sanction imposed is commensurate with the
severity of the infraction and authorized under N.J.A.C. 10A:4-
4.1(a) and N.J.A.C. 10A:4-5.1(e).
Additionally, appellant argues that he was not afforded an
impartial and fair hearing because, in finding him guilty, the
hearing officer relied on his silence contrary to N.J.A.C. 10A:4-
9.4(b), and the investigating officer failed to thoroughly
investigate the incident contrary to N.J.A.C. 10A:4-9.5(e). Under
N.J.A.C. 10A:4-9.5(a), after the disciplinary report is served
upon the inmate, an investigation of the infraction must be
conducted, which shall include:
[verifying] that the inmate has received the
written charge[,] . . . [reading] the charge
to the inmate, [informing] the inmate of the
inmate's use immunity rights, [taking] the
inmate's plea, [asking] if the inmate wishes
8 A-5377-14T3
to make a statement concerning the
[infraction] . . . [and taking] the inmate's
statement. . . .
[N.J.A.C. 10A:4-9.5(e).]
Contrary to appellant's assertion, a thorough investigation
was conducted during which the investigator verified that
appellant received the written charge and read appellant his use
immunity rights. In addition, the investigator recorded
appellant's not guilty plea and was advised by appellant that he
would make a statement at his hearing. Appellant also declined
to offer any supporting witnesses or confront any adverse
witnesses, thus obviating the need for further investigation.
Further, while N.J.A.C. 10A:4-9.4(a) permits a hearing
officer to consider "[a]n inmate's failure to invoke use immunity
and make a statement in his/her defense . . . together with the
other evidence[,]" N.J.A.C. 10A:4-9.4(b) prohibits "[a] finding
of guilt at a disciplinary hearing . . . predicated solely upon
an inmate's silence." Here, the record does not support
appellant's contention that the finding of guilt was predicated
solely upon his silence. On the contrary, there was overwhelming
evidence of appellant's guilt.
Finally, appellant essentially asserts that his counsel-
substitute was ineffective by advising him not to enter a plea or
make a statement, instead of asserting his valid self-defense
9 A-5377-14T3
claim. Although the assistance of counsel-substitute in prison
disciplinary hearings is not equivalent to the constitutional
right to counsel in non-institutional proceedings, an inmate who
receives assistance from a counsel-substitute who is not
"sufficiently competent" has been effectively denied the due
process protections established by the applicable regulation.
Avant, supra, 67 N.J. at 529.
Here, appellant never claimed ineffective assistance of
counsel-substitute nor asserted a self-defense claim in his
administrative appeal. Therefore, we need not consider either
claim on this appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973); see also Hill v. N.J. Dep't of Corr., 342 N.J.
Super. 273, 293 (App. Div. 2001), certif. denied, 171 N.J. 338
(2002) (applying Nieder to prison cases). However, even if we
were to consider them, there is no support for appellant's claim
that competent counsel-substitute would have altered the outcome
of the proceeding. After reviewing the video recording and the
officers' reports, the DHO specifically found that appellant was
the aggressor. That determination wholly undermines any
reasonable assertion that the elements of a self-defense claim
10 A-5377-14T3
required under N.J.A.C. 10A:4-9.13(f)4 could be established. We
therefore reject appellant's claim of ineffective assistance of
counsel-substitute and his claim of self-defense.
Affirmed.
4
In order to prove a claim of self-defense, an inmate must present
evidence establishing that he "was not the initial aggressor,"
"did not provoke the attacker," "had no reasonable opportunity or
alternative to avoid the use of force," and the use of force "was
not by mutual agreement," "was used to defend against personal
harm" and "was reasonably necessary for self-defense and did not
exceed the amount of force used against the inmate." N.J.A.C.
10A:4-9.13(f).
11 A-5377-14T3