NOT FOR PUBLICATION WITHOUT THE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-0716-15T4
CARLOS GUERRERO,
Appellant,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS,
Respondent.
__________________________________
Submitted July 25, 2017 – Decided August 8, 2017
Before Judges Ostrer and Leone.
On appeal from the New Jersey Department of
Corrections.
Carlos Guerrero, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Nicole
E. Adams, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant Carlos Guerrero, at relevant times an inmate at
Bayside State Prison, appeals from a Department of Corrections
(Department) disciplinary decision. A hearing officer found that
Guerrero committed prohibited act *.004, "fighting with another
person . . . ." N.J.A.C. 10A:4-4.1(a) (2015).1 The assistant
superintendent upheld the decision after an administrative appeal.
We affirm.
On August 18, 2015, a senior corrections officer observed an
inmate named Quintero punch Guerrero, knocking him down. Guerrero
then stood up and began to fight Quintero. The two tussled on the
floor, while officers repeatedly commanded them to stop fighting
and to separate. They eventually complied, and both suffered
minor injuries. The following day, Guerrero was served with
disciplinary charges, alleging he violated prohibited act *.004.2
Guerrero waived his right to twenty-four hours' notice and
the disciplinary hearing took place the same day. Assisted by a
counsel substitute, Guerrero stated he acted in self-defense,
although he acknowledged he pushed back against Quintero. Relying
on the senior corrections officer's report, the hearing officer
concluded: "Insufficient evidence to support that inmate used self
1
Under the regulation then in effect, the infraction was
punishable by up to a year of administrative segregation, as well
as the loss of up to 365 calendar days of commutation time.
N.J.A.C. 10A:4-5.1(a) (2015).
2
He was also charged with prohibited act *.306, "conduct which
disrupts or interferes with the security or orderly running of the
correction facility," N.J.A.C. 10A:4-4.1(a) (2015), but that
charge was dismissed.
2 A-0716-15T4
defense. Inmate did not attempt to retreat. Evidence supports
the charge." The hearing officer concluded that Guerrero should
be held accountable and that violence among inmates should be
deterred. Guerrero received 180 days of administrative
segregation and 180 days loss of commutation time.
In his administrative appeal, Guerrero conceded that the
"[e]vidence presented supports finding of guilty to *.004."
However, he sought reduced sanctions based on the circumstance of
the fight, claiming that he was attacked. The assistant
superintendent upheld the decision and stated, "No leniency will
be afforded to you. Uphold all sanctions."
Guerrero raises the following points for our consideration:
POINT I
THE DECISION OF THE PRISON ADMINISTRATOR WAS
NOT ADEQUATELY SUPPORTED BY SUBSTANTIAL
CREDIBLE EVIDENCE IN THE ADMINISTRATIVE
RECORD. THE DECISION WAS AT ODDS WITH THE
AUTHOR OF THE CHARGE AND THE APPELLANT'S SELF-
DEFENSE ARGUMENT IN VIOLATION OF THE
APPELLANT'S RIGHT TO DUE PROCESS.
POINT II
THE HEARING WAS HELD IN VIOLATION OF NUMEROUS
CODES OF TITLE 10A WHICH GOVERNS THE
DISCIPLINARY PROCESS.
POINT III
THE APPELLANT SUBMITS THAT THE DISCIPLINARY
HEARING OFFICER AND THE ADMINISTRATOR FAILED
3 A-0716-15T4
TO ADEQUATELY REVIEW OR CONSIDER THE RECORD
IN DISMISSING APPELLANT'S PLEA FOR LENIENCY.
Guerrero's appeal lacks merit. He raises arguments that he
did not raise below, or he expressly waived. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973). As for his weight-of-
the-evidence argument, he conceded on administrative appeal that
the evidence supported the charge. In any event, we discern
sufficient credible evidence in the record to support the finding
that Guerrero failed to retreat or to cease fighting when commanded
to do so; thus, self-defense was not available. See Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980) (stating that the
appellate court shall disturb an administrative decision "only if
it is arbitrary, capricious or unreasonable or it is not supported
by substantial evidence in the record as a whole"); see also
N.J.A.C. 10A:4-9.13(f) (setting forth six prerequisites to a self-
defense claim, including "[t]he inmate had no reasonable
opportunity or alternative to avoid the use of force, such as, by
retreat or alerting correctional facility staff").
Guerrero was also not denied his procedural rights regarding
notice, since he expressly waived them before the hearing. As for
the sanctions, Guerrero claimed below that he was entitled to
leniency because he was struck first. Now, he argues he is
entitled to leniency "in light of [his] institutional record."
4 A-0716-15T4
Aside from the fact that he did not raise that point before the
assistant superintendent, Guerrero's face sheet report and
progress notes disclose twelve prior findings of disciplinary
violations, including multiple findings of guilt for fighting,
assault, threatening conduct, and refusing to obey orders. We
recognize that neither the hearing officer nor the assistant
superintendent provided inmate-specific reasons for the selection
of the sanctions, which included the middle of the range for
administrative segregation and loss of commutation time. Cf.
Mejia v. N.J. Dep't of Corrs., 446 N.J. Super. 369, 378-79 (App.
Div. 2016) (stating that a hearing officer should articulate the
reasons for imposing a particular sanction). However, in view of
Guerrero's extensive disciplinary record, we conclude the sanction
was neither arbitrary, capricious, nor unreasonable. See Henry,
supra, 81 N.J. at 580.
Affirmed.
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