SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2741- 21 LARRY FLEMING, Plaintiff-Appellant,

v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Defendant-Respondent.

__________________________

Submitted January 9, 2024

– Decided January 23, 2024 Before Judges Natali and Puglisi. On appeal from the New Jersey Department of Corrections. Larry Fleming, appellant pro se. Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorn ey General, of counsel; Dorothy M. Rodriguez, Deputy A ttor ney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2741

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Appellant Larry Fleming challenges an April 6, 2022 final agency decision of the New Jersey Department of Corrections (DOC) upholdi ng a hearing officer' s imposition of disciplinary sanctions for his violat ion of
pr ohibited act *.014, "unauthorized physical contact with any person with an article, item, or material such as anything readily capable of inflicting bodily injury," contrary to N.J.A.C. 10A:4-4.1(a)(2)(iv). A fter considering the parties' arguments in light of the record on appeal and the applicable legal principles, we vacate the DOC's decision and remand for further proceedings.
I. We discern the following facts from the administrat ive record. On January 14, 2022, Officer Devon Naul observed an in mate exit a janitor's closet with red eyes and complaining of blurred vision. O fficer Naul sent the inmate to the clinic where he reported appellant sprayed h im in the eyes with cleaning solution. Appellant claimed he sprayed the inmate in self-def ense after he "pulled a weapon." Fleming's cell was later inspected, resulting in th e confiscation of an empty spray bottle "that smelled like cleaning s olution." The accusing inmate's cell was also searched but neither a we apon nor any other contraband was discovered.3 A- 2741

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On January 15, 2022, Fleming was charged with commi tting prohibited act *.002, assaulting any person, in violation of N .J.A.C. 10A:4-1.1(a)(1)(ii), and served with notice. 1 In his written statement, appella nt expounded on his statement to Officer Naul. He claims the complaini ng inmate entered hi s cell with a weapon believed to be a "shank" or " shiv " and he only use d the spray bottle to "block" him . Appellant further contended the spray bottle's b roken nozzle resulted in both inmates being sprayed with cleaning solution. Appellant's statement also identified the unit offi cer and/or reporting employee as witnesses, and stated he intended to rely on the spray bottle and video footage to support his self-defense claim. On January 25, 2022, a Disciplinary Hearing Officer (DHO ) modified the *.002 charge to the *.014 charge and provided appel lant with a copy of the amended charge and an additional twenty-four hours to pre pare a defense. That same day, however, Fleming requested video footage of the incident. DOC

1 The record reveals Fleming was also charged with pr ohibited act .210, "possession of anything not authorized for retentio n or receipt by an inmate or not issued to him or her through regular correction al facility channels," in violation of N.J.A.C. 10A:4 -4.1(a)(4)(iii). Neither the Adjudication of Discipline Report nor the final decision address ed this charge, and the DOC similarly does not discuss it in their submissions be fore us. W e accordingly assume the charge was dismissed, and do not address it in our opinion.4 A- 2741

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personnel sent emails requesting the video footage on January 25, 2022; February 10, 2022; February 22, 2022; and February 28, 2022. The requested footage was received on February 28, 2022, resulting in the hearing being rescheduled to March 4, 2022. After reviewing the requested footage at the March 4, 2022 hearing, appellant requested additional footage from an alte rnate vantage point and requested a postponement of the hearing. The recor d also indicates appellant requested witness statements from two Senior Correc tions Officers. On March 4, 2022, the same day appellant requested the addit ional video footage, an investigator from the Special Investigations Divisi on (SID) informed the DOC , the SID was unable to obtain video of the incident from any alternat ive angles. The next day, appellant wrote a letter to the DHO a nd specifically requested the "opportunity to call the accuser as a [fact] witness." Appellant explained his accuser's testimony was necessary, "i n the event the requested video footage is either unavailable or non-existen[ t] . . . ." He also included three questions for the DHO to ask the accusing inm ate. In his letter, appellant confirmed the DHO denied h is request at the March 4 hearing

. Appellant's counsel substitute submitted a certific ation in which he confirmed both he and appellant requested the accus ing inmate be called as a5 A- 2741

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fact witness, but the DHO denied the ir requests stating, "you can't call the accuser as a witness." Appellant also requested in the event his request w as denied, the DHO make a "record of the denial" as re quired by the Administrative Code. Finally, the record also contains a letter f rom appellant to his counsel substitute demanding his accuser be questioned because, among other reasons "credibility is a serious issue." The Adjudication of Discipline Report stated appell ant was "asked" if he wished to call witnesses and "declined." The form also indicates appellant was "asked" and "declined" to confront or cross-examine adverse witnesses. Appellant's counsel substitute signed line sixteen of the Adjudication of Discipline Report "acknowledging" the form "accurat ely reflect[ed] what took place at the inmate disciplinary hearing," includin g appellant declining to call witnesses. The DHO ultimately found appellant guilty of the *.014 charge. In the Adjudication of Discipline Report, the D HO stated she considered: (1) the preliminary incident report; (2) Officer Naul's rep ort detailing the incident; (3) the report regarding the seizure of the empty spray bottle found in appella nt' s cell; (4) the medical report of the victim; (5) the seizure of contraband report;6 A- 2741

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and (6) photos of the spray bottle confiscated from appellant's cell. The DHO also noted appellant was afforded all process due to him. Appellant was sanctioned to thirty-days loss of rec reational privileges, 100 days in restorative housing, and thirty-days loss of cante en privileges. In issuing the sanction s, the DHO explained , appellant "needs to follow rules for safety and security of others. [He] needs to refra in from accruing charges. [He] takes no resp[onsibility] for his actions, only pro viding excuses." Appellant challenged the DHO's decision claiming th e DOC violated his due process rights as it failed to properly serve h im with notice of the *.002 offense within forty-eight hours; he was not provid ed with requested evidence in a timely manner; and he was denied the opportuni ty to cross-examine his accuser. On April 6, 2022, the Assistant Superinte ndent upheld the DHO ' s decision and sp ecifically found , appellant "sprayed another inmate in the face with cleaning solution. There is no violation of t he standards. The sanction provided was proportionate to the offense. No leni ency will be afforded to you." This appeal followed. Before us, appellant reprises the contentions he ra ised before the DHO and Assistant Superintendent which, in essence, foc us on the alleged deprivation of his procedural due process and equal protection rights. He first argues despite7 A- 2741

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his placement in prehearing detention, he did not receive his first hearing within three calendar days, contrary to N.J.A.C. 10A:4-9.8 (c). Instead, he contends the
DOC belatedly held his first hearing on January 25, 20 22, eleven days after the incident with ou t providing a "reason, exceptional circumstance or explanation " to justify the delay. Appellant argues, in fact, the DOC caused the delay by failing to obtain the video footage he requested in a timely manner and, relying on N.J.A .C. 10A:4 -9.7(a)(1), maintains when an inmate is in preheari ng detention, a ny decision by the DOC to postpone a hearing based on the need for a continued investigation must be reviewed within forty-eight h ours. He further explains as there is no record indicating any such investigation was conducted after January 25 , the final agency decision should be reversed. Fi nally, appellant adds there was no justifiable reason for SID to take in excess of fifty days to produce the requested video footage. Appellant also contends because the DHO assumedly r ejected his selfdefense claim, he was clearly entitled to call his accuser or engage in crossexamination. He further notes he submitted questio ns for the DHO or his counsel substitute to ask his accuser, but the DHO denied hi s request at both his March 4, 2022, and March 9, 2022 hearings.8 A- 2741

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As such, appellant argues the DHO deprived him of : (1) a reasonable opportunity to defend the disciplinary charges, and (2) an adequate record supporting the presentation of all evidence. He al so notes after he determined the requested video footage did not support his cla im, he made four requests to call or question his accuser. Appellant thus asserts the Adjudication of Discipline Report incorrectly stated he declined to call witnesses and improperly failed to state any reason for the DHO's decision, contrary to N.J.AC. 10A:4- 9.13(e). We disagree with appellant's first two points as th e record does not support appellant's argument the DOC violated the due process rights afforded him u nder Avant v. Clifford, 67 N.J. 496 (1975). We reach a different result with respect to appellant's third point and conclude a remand is necessary for the DOC to provide further factual findings regarding appellan t's request to call or crossexamine his accuser and its decision to reject appe llant's self-defense claim.
II. Our review of a final agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). We reverse only when th at decision "is arbitrary, capricious or unreasonable or it is not supported b y substantial credible evidence9 A- 2741

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in the record as a whole." In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980))

. "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more t han a perfunctory review." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of Corr., 348 N.J. Supe r. 117, 123 (App. Div. 2002)). We engage in a "careful and principled con sideration of the agency record and findings" Williams v. Dep't of Corr., 33 0 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a crim inal prosecution. Avant, 67
N.J. at 522. An inmate is entitled to written notice of t he charges at least twentyfour hours prior to the hearing; an impartial tribu nal; a limited right to call witnesses and present documentary evidence; a limit ed right to confront and cross-examine adverse witnesses; a right to a writt en statement of the evidence relied upon and the reasons for the sanctions impos ed; and where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525- 33.10 A- 2741

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Further, an inmate has only a limited right to conf ront and cross-examine witnesses at a disciplinary hearing. Avant, 67 N.J . at 529

– 30; see also McDonald v. Pinchak, 139 N.J. 188, 194 (finding inmate's due process right to call witnesses and present evidence may be "abridge d to the extent necessary to accommodate the institutional needs and objectives of prisons"); Johnson v. N.J. Dept. of Correcti ons , 298 N.J. Super. 79, 83 (1997) (explaining that an inmate is entitled to call witnesses at a disciplinary hea ring "unless the [DOC] specifies some justifiable reason for refusing to permit the testimony" ). On this point , a DHO "has the discretion to keep the disciplinary heari ng within reasonable limits," N.J.A.C. 10A:4

– 9.13, and may refuse confrontation and crossexamination under various circumstances, N.J.A.C. 1 0A:4

– 9.14(b). However, where an inmate's disciplinary "matter tur ns on the credibility of the officer[s] or the inmate, the inmate, upon r equest, is entitled to confrontation and cross-examination of the officer, at least, in the absence of any reasons that justify an exception . . . ." Dec ker v. N.J. Dep't of Corr., 331 N.J. Super. 353, 359 (App. Div. 2000). That princi ple is codified in N.J.A.C.
10A:4 -9.14(a) which states an "opportunity for confronta tion and crossexamination of the accuser(s) [or] . . . witnesses, if requested shall be provided to the inmate or counsel substitute in such instanc es where the . . . [h]earing11 A- 2741

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[o]fficer . . . deems it necessary . . ., particula rly when serious issues of credibility are involved." S ee also Avant, 67 N.J. at 529-30. If a DHO denies an inmate 's or counsel substitute's request to call or crossexamine a witness, "the reasons for the denial shal l be specifically set forth" on a designated disciplinary report form. N.J.A.C. 10 A:4

– 9.14(f). Th ose memorialized reasons are critically important for a ppellate review as th at record provides "prima facie evidence which will enable re viewing authorities . . . and if, necessary, the courts, to determine whether or not there has been a proper exercise of discretion. " Avant, 67 N.J. at 532. After considering appellant's arguments in the cont ext of the aforementioned legal principles, we disagree with a ppellant's contention the
DOC 's failure to provide his first hearing date until eleven days after the incident, as opposed to the three days mandated by N.J.A.C. 10A:4-9.8(c), warrants reversal of the final agency decision. As appellant correctly notes, N.J.A.C. 10A:4-9.8(c) requires the DOC to provide i nmates confined in Prehearing Disciplinary H ousing with a hearing within three calendar days of their placement "including weekends and holidays, u nless there are exceptional circumstances, unavoidable delays, or reasonable po stponements."12 A- 2741

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The three-day requirement is not immutable, however

. Indeed, N.J.A.C.
10A:4 -9.8(c) expressly acknowledges there may be "exceptio nal circumstances, unavoidable delays, or reasonable postponements" pr eventing an inmate confined in Prehearing Disciplinary Housing from re ceiving a hearing within three calendar days. Further, as N.J.A.C. 10 A:4 -9.9 instructs, "[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." Instead, a DHO has the discretion to dismiss a disciplinary charge due to a violation of time limits upon consideration of th e "length of the delay," "reason for the delay," "[p] rejudices to the inmate in preparing his/her defense," and "[t]he seriousne ss of the alleged infraction." N.J.A.C. 10A:4-9.9. Here, it is not disputed appellant was placed in prehearing detention on January 14, 2022 and did not have his initial disci plinary hearing until January 25, 2022. We are satisfied that delay does not war rant dismissal of the *. 0 14 charge, considering the delay was brief, the offense was serious in nature, and appellant fail ed to identify any prejudice. We also note the delay resulted in an amendment of the initial charge, and appellant was provided the required additional notice.13 A- 2741

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We similarly reject appellant's argument reversal i s warranted unde r N.J.A.C. 10A:4-9.7(a)(1) because the DOC failed to justify the delay. The record indicates appellant's January 25, 2022 heari ng was postponed due to the modification of the charges and appellant's request to obtain video footage of the January 14, 2022 incident. The record also includes DO C emails requesting the video footage on four occasions between January 25, 2022, and February 28, 2022. After viewing the footage on March 4, 2022, how ever, appellant chose to again postpone his hearing and request additional f ootage from an alternate vantage point or camera. It is clear the postponem ents of both appellant's January 25, 2022 and March 4, 2022 hearings were du e to appellant's request for potentially exculpatory evidence

. We also find appellant's reliance on N.J.A.C. 10A:4-9.7 misplaced as that provision requires the DHO to review a postponement of a hearing within fortyeight hours if the postponement is required for fur ther investigation. Here, the hearing was postponed from January 25, 2022 to March 4, 202 2, not because an additional investigation was necessary, but because the DOC had not yet received the additional video footage appellant req uested, despite its repeated requests to the SID. In any event, even if N.J.A.C. 10A:4 -9.7 applied, as noted,14 A- 2741

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N.J.A.C. 10A:4-9.9 does not mandate dismissal of a charge under the circumstances presented. We reach a different conclusion regarding appellant 's third argumen t. N.J.A.C. 10A:4-9.14(a) is clear: an "opportunity for confrontation and crossexamination of the accuser(s) and/or the State's wi tness(es), if requested, shall be provided to the inmate or counsel substitute" in situations "where the [DHO] or Adjustment Committee deems it necessary for an a dequate presentation of the evidence, particularly when serious issues of credi bility are involved." N.J.A.C.
10A:4 -9.14(a). Further, as noted, if the DHO denies a r equest to call or crossexamine a witness, "the reasons for the denial shal l be specifically set forth" on a designated disciplinary report form and consistent wit h the reasons detailed in N.J.A.C. 10A:4-9.14(b)

. See N.J.A.C. 10A:4-9.14(f). Explicit reasons for a DHO's denial are particularl y critical when an inmate claims self-defense to a prohibited act invo lving the use of force, as the inmate "shall be responsible for presenting support ing evidence." N.J.A.C.
10A:4 -9.13(f). Such evidence "shall include each" of th e following:

1. The inmate was not the initial aggressor; 2. The inmate did not provoke the attacker; 3. The use of force was not by mutual agreement;15 A- 2741

- 21 4. The use of force was used to defend against personal harm, not to defend property or honor; 5. The inmate had no reasonable opportunity or alternative to avoid the use of force, such as, by retreat or alerting correctional facility staff; and 6. Whether the force used by the inmate to respond to the attacker was reasonably necessary for self-defe nse and did not exceed the amount of force used against the inmate. [N.J.A.C. 10A:4-9.13(f).] Here, appellant clearly raised a self-defense claim , as evidenced by the Adjudication of Discipline Report and his January 1 7, 2022 written statement. As such, it remained his burden to present evidence supporting that defense

. Based on his multiple requests for video footage it is clear appellant initially intended to rely on that footage to support his argument he sprayed the victim with cleaning fluid to stop an attack with a deadly weapon. Apparently unsatisfied with the vantage point of the video, ap pellant then sough t to question his accuser to establish the elements of his self-d efense claim, as evidenced by his March 5, 2022 letter. We fully acknowledge the Adjudication of Discipline Report indicates appellant declined to call any witness and his coun sel substitute signed this form acknowledging its accuracy. That Adjudication of D iscipline Report, however,16 A- 2741

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appears to have been used for all three of appellan t's hearings on January 25,
2022 ; March 4, 2022; and March 9, 2022, and we cannot d iscern on which date appellant was "asked" about presenting witnesses an d "declined." Based on appellant's March 5, 2022 letter, it appear s appellant declined to present witnesses prior to viewing the video footag e on March 4, 2022. Once he learned the video footage did not detail the inc ident, he clearly invoked his confrontation rights as did his advocate, who also requested the accusing inmate be questioned, and provided three questions for the DHO to present. At a minimum, we are satisfied appellant's March 5, 2022 letter served as sufficient notice to the DHO of appellant's request to call his accuser as a witness. Indeed, he stated, "I herein request the opportunity to call the accuser as a [fact] witness . . . and the opportunity for c onfrontation and crossexamination." Once the DHO received appellant's lett er, the DHO was required to either allow appellant to call the witness or st ate on the Adjudication of Discipline Report the reason for denying the witnes s request. See N.J.A.C.
10A:4 -9.14(a) & (f). Here, the Adjudication of Discipline Repo rt does not state the DHO's reason for denying the request nor does i t even reference appellant's request.17 A- 2741

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We reject the DOC 's request that we disregard appellant's March 5, 2 022 letter because it was not "part of the record." First, the letter is part of our appellate record and the DOC did not file a motion to strike it from appellant' s appendix. That is likely so because the DOC does not argue the DHO did not receive the letter, nor does it challenge its authenticity or accuracy. In any event, appellant properly raised the cross-examination iss ue in his administrative appeal and Assistant Superintendent Lewis failed to address substantively his argument. We accordingly vacate the April 6, 2022 final agenc y decision and remand for the DHO to address explicitly appellant's reque st to cross-examine or call his accuser. In the event appellant's request is denied, the DHO should state the reasons for denying appellant's request in accordan ce with N.J.A.C. 10A:4- 9.14(a) & (f). Should the DHO determine such exami nation is appropriate, it shall be conducted in accordance with the procedure s detailed in N.J.A.C.
10A:4 -9.14(c)-(e). The DHO shall also provide additional factual findi ngs specifically addressing appellant's self-defense cl aim that are dis cernible to any review ing tribunal or court. Vacated and remanded. We do not retain jurisdictio n.