NOT FOR PUBLICATION WITHOUT THE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-1091-17T3
MICHAEL STANTON,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted June 5, 2019 – Decided July 8, 2019
Before Judges Nugent and Reisner.
On appeal from the New Jersey Department of
Corrections.
Michael Stanton, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Kevin J. Dronson,
Deputy Attorney General, on brief).
PER CURIAM
Michael Stanton, a prison inmate, appeals from a September 11, 2017 final
decision of the assistant prison superintendent, upholding the determination of
a hearing officer that Stanton committed prohibited act *.002, assaulting any
person. Despite our request, the Department of Corrections (DOC) failed to
provide this court with a critical portion of the record – a security video on which
the hearing officer relied in deciding the case. See R. 2:5-4(d). In a letter dated
June 25, 2019, the DOC's counsel advised that the agency "has been unable to
locate the subject video." Because the non-production of the evidence precludes
meaningful appellate review, we vacate the final decision and remand the case
to the DOC for a new hearing before a different hearing officer.
To put our decision in context, we briefly summarize the case. Another
inmate, who was charged with flooding his cell, claimed in defense that Stanton
threw human waste into the inmate's cell, leading the alleged victim to flood the
cell with water while trying to wash off the waste. Stanton, who was a "runner"
assigned to deliver food to other inmates in their administrative segregation
cells, responded that he did not throw anything at the alleged victim, but simply
handed him a cup of pudding and bread. The hearing officer viewed a security
video of the incident and concluded Stanton threw waste into the victim's cell.
A-1091-17T3
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On this appeal, Stanton first argues that it was a violation of due process
and agency rules, which he cites as N.J.A.C. 10A:9-5(b), for the same
corrections sergeant to investigate both the flooding charge against the alleged
victim and the *.002 charge against Stanton. We reject that argument. The
correct citation to the rule is N.J.A.C. 10A:4-9.5(b). A plain-language reading
of that regulation reveals that it does not apply here, because the investigating
sergeant was not "involved" in the flooding incident or the waste-throwing
incident.
Stanton also asserts that the evidence does not support the hearing officer's
factual findings. From her decision, it is clear that the hearing officer relied on
the video, which she viewed during the hearing in the presence of Stanton and
his inmate counsel substitute. However, despite the central importance of the
video, the DOC's statement of items comprising the record on appeal does not
specifically list the video and the appendices do not include it. See R. 2:5-4(b).
Further, this evidence is exclusively within the DOC's control and was not
produced, although requested, apparently because the agency lost or misplaced
it. See R. 2:5-4(d). Accordingly, we cannot engage in meaningful appellate
review of the DOC's decision.
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Under these circumstances, we find that fairness to both sides will be
served by vacating the agency's decision and remanding the case for a new
hearing before a different hearing officer. See In re Corbo, __ N.J. __, __ (2019)
(slip op. at 10-12) (holding that a remand, rather than a reversal, was the
appropriate remedy for procedural error, where the agency might be able to
prove its case on remand). To be clear, the new hearing officer may not consider
the previous decision and must render a decision based solely on the evidence
each side presents at the new hearing. If the DOC locates the video, it may use
it at the new hearing. If the DOC does not have the video, the agency may rely
on different evidence, such as testimony from the alleged victim, if he is willing
and available. However, the DOC may not rely on hearsay about the video if it
is not physically available for the new hearing officer to view. Proceedings on
remand shall be completed within sixty days of the date of this opinion.
Vacated and remanded. We do not retain jurisdiction.
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