KEVIN JONES v. NEW JERSEY DEPARTMENT OF CORRECTIONS (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NOT FOR PUBLICATION WITHOUT THE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-1241-19

KEVIN JONES,

Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

Respondent.
___________________________

Submitted February 9, 2022 – Decided March 23, 2022

Before Judges Hoffman and Whipple.

On appeal from the New Jersey Department of
Corrections.

Kevin Jones, appellant pro se.

Andrew J. Bruck, Acting Attorney General, attorney
for respondent (Donna Arons, Assistant Attorney
General, of counsel; Tasha Marie Bradt, Deputy
Attorney General, on the brief).

PER CURIAM
 Petitioner, Kevin Jones, an inmate in New Jersey State Prison (NJSP)

appeals from the August 13, 2019 final state agency decision, which upheld

the hearing officer's finding that petitioner was guilty of committing prohibited

act *.256 – disobeying a direct order from a staff member. We affirm.

On July 18, 2019, during a scheduled interview with Assistant

Superintendent Emrich, petitioner became agitated and attempted to leave the

room. Lieutenant Sangale ordered him to remain seated during the interview,

but despite these repeated commands, petitioner left the room stating "fuck it,

you all can have this shit." Officer Legore attempted to call petitioner back as

he left the room, but he continued to walk away. Lieutenant Sangale reported

the incident to North Sergeant Watters. Department of Corrections

(Department) staff searched petitioner and placed him in handcuffs, and

medical staff cleared him for placement in pre-hearing detention. Department

staff issued petitioner a charge for *.256, refusing to obey the order of any

staff member. The following day, Department staff served the disciplinary

charge on petitioner, investigated, and referred the charge to a Disciplinary

Hearing Officer (DHO) for further action. The disciplinary hearing began on

July 22, 2019, but was postponed, pending a mental health evaluation.

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Petitioner pleaded not guilty to the charge against him, and requested the

assistance of counsel substitute, which was granted.

Petitioner and counsel substitute were granted the opportunity to make a

statement on his behalf. Petitioner maintained that he was never told to remain

seated. Petitioner was offered the opportunity to request witness statements

and to cross-examine adverse witnesses. After initially requesting a

confrontation, petitioner rescinded his request and declined the opportunity to

request witness statements. After considering all the testimony presented and

evidence proffered, the DHO found petitioner guilty of prohibited act *.256.

The DHO noted custody personnel reported that during a scheduled interview,

petitioner "became agitated [and] started to walk out of the room, despite

orders to sit back down." The DHO emphasized that while petitioner initially

made requests for additional information and confrontation, he rescinded his

requests several minutes later. The DHO ultimately concluded that petitioner

failed to provide any evidence to support his claims or discredit staff reports.

Petitioner was sanctioned with forty days' loss of commutation time;

thirty days' administrative segregation; sixty days' suspension; and twenty

days' loss of phone privileges. In imposing these sanctions, the DHO reasoned

petitioner "appeared to accept no responsibility for his actions." The DHO

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also emphasized that "the orders were reasonable," that petitioner should have

complied, and that he must be held responsible for his non-compliance.

Petitioner administratively appealed the decision of the DHO, arguing

that his due process rights were violated. On August 13, 2019, NJSP Assistant

Superintendent Emrich upheld the decision of the DHO, finding that the

hearing officer complied with the New Jersey Administrative Code and that

the preponderance of the evidence presented supported the guilty decision.

This appeal followed wherein petitioner raised the following arguments:

POINT I.
APPELLANT WAS DENIED CONFRONTATION
WITH HIS ACCUSER IN VIOLATION OF 10A:14-
9(a).

POINT II.
DHO T. CORTES TOOK ON ROLE OF
PROSECUTOR .

POINT III.
HEARING OFFICER'S DECISION WAS BOTH
ARBITRARY AND CAPRICIOUS AND THE
DECISION WAS NOT BASED ON SUBSTANTIAL
CREDIBLE EVIDENCE IN VIOLATION OF
CLEARLY ESTABLISHED LAW PURSUANT TO
WOLFF V. MCDONNELL AND AVANT V.
CLIFFORD.

POINT IV.
THE DISCIPLINARY REPORT BY SGT. WATTERS
SHOULD HAVE BEEN DISMISSED SINCE SGT.
WATTERS DID NOT WITNESS THE ALLEGED

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 INFRACTION AND SGT. WATTERS USED
HEARSAY INFORMATION AS THE BASIS FOR
PROBABLE CAUSE WHICH VIOLATED
APPELLANT[']S RIGHT TO BE TREATED FAIR
AND IMPARTIAL BY ALL DEPARTMENT OF
CORRECTIONS STAFF.

POINT V.
APPELLANT['S] FEDERAL AND STATE DUE
PROCESS RIGHTS WERE VIOLATED BECAUSE
THE DISCIPLINARY HEARING OFFICER DID
NOT COMPLY WITH THE PROCEDURAL
SAFEGUARDS THAT ENSURE THAT
APPELLANT RECEIVES A FAIR AND
IMPARTIAL HEARING AND THE FINDING OF
GUILT WAS NOT BASED ON SUBSTANTIAL
CREDIBLE EVIDENCE.

POINT VI.
THE CUMULATIVE EFFECT DENIED
APPELLANT HIS CONSTITUTIONAL RIGHTS TO
A FAIR HEARING, DUE PROCESS AND EQUAL
PROTECTION UNDER THE LAW.

Our review of final administrative agency decisions is limited. Malacow

v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). An

administrative agency's decision will not be reversed unless 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). "'Substantial evidence' means 'such evidence as a

reasonable mind might accept as adequate to support a conclusion.'" Figueroa

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v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In

re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). We have reviewed

the record and reject each of petitioner's arguments.

Petitioner argues that he was denied confrontation with his accuser in

violation of N.J.A.C. 10A:4-9.14(a). However, he rescinded his request for

confrontation by stating that he "d[id not] wan[t to] submit or request anything

further." Confrontation must only be provided upon request of the inmate "in

such instances . . . necessary for an adequate presentation of the evidence,

particularly where serious issues of credibility are involved." N.J.A.C. 10A:4 -

9.14(a). Petitioner initially requested such confrontation, but he rescinded this

request and therefore was not deprived of any right to confrontation.

Petitioner argues DHO Cortes took on the role of prosecutor in not

conducting an impartial investigation. The record demonstrates an

investigation was conducted within forty-eight hours of the disciplinary report

and DHO Cortes used her discretion under N.J.A.C. 10A:4-9.6 and determined

that further investigation was not necessary because the facts were sufficient to

set forth a basic understanding of the incident. We discern no impartiality.

Petitioner also argues that the DHO's decision violated the "arbitrary and

capricious" standard and that the DHO failed to explain why she found the

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officers' reports more credible, which violated his due process rights. Officers

Hunter and Legore witnessed the incident, and Officer Watters was

immediately called to the scene to escort petitioner out. Based on the

disciplinary reports signed by the officers, DHO Cortes had substantial

evidence from these three corroborative reports – as well as the findings from

Sgt. Bezek's investigative report – to support her finding.

Petitioner argues Officer Watters' reporting of the incident should be

dismissed since Watters did not personally witness the incident; however, the

Administrative Code provides that either "the DOC staff member . . . who

witnessed it or who has probable cause to believe that a prohibited act has

occurred shall prepare Form 259 . . . ." N.J.A.C. 10A:4-9.1(a). In Weston v.

State, 60 N.J. 36, 51 (1972), the Court ruled "that a fact finding or a legal

determination cannot be based upon hearsay alone." However, the Court in

Weston went on to say "[h]earsay may be employed to corroborate competent

proof . . . . But . . . there must be a residuum of legal and competent evidence

to support it." Ibid. Here, Watters had sufficient evidence to complete the

disciplinary report, as he was called to the scene to escort petitioner and had

reviewed the firsthand reports of the incident authored by witnesses Officers

Legore and Sangale.

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 Petitioner next argues he was denied due process. This argument fails

for the same reasons that his earlier argument for confrontation failed.

Although inmates are not entitled to the same due process protections as

criminal defendants, they are guaranteed certain limited protections. See

McDonald v. Pinchak, 139 N.J. 188, 194 (1995); Avant v. Clifford, 67 N.J.

496, 523 (1975). Here, petitioner was given written notice of the charge at

least twenty-four hours before the hearing, he was provided with counsel

substitute, and he was offered an opportunity to call and confront witnesses.

By his own account, petitioner was afforded every due process right available

to him through the Administrative Code. His hearing was postponed upon

request so that the hearing officer could review petitioner's mental health

disciplinary report. His sanctions were imposed after consideration of

N.J.A.C. 10A:4-9.17(a) and careful review of his history with mental illness.

Petitioner 's final argument that the cumulative error doctrine applies

must fail since he failed to show a single error with any of his other arguments.

Affirmed.

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