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 Attorney 

General, of counsel; Dorothy M. Rodriguez, Deputy 

Attorney 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NOT FOR PUBLICATION WITHOUT THE 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 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.
2 A-2741-21

Appellant Larry Fleming challenges an April 6, 2022 final agency 

decision of the New Jersey Department of Corrections (DOC) upholding a 

hearing officer's imposition of disciplinary sanctions for his violation of 

prohibited 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). After 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 administrative record. On 

January 14, 2022, Officer Devon Naul observed an inmate exit a janitor's closet 

with red eyes and complaining of blurred vision. Officer Naul sent the inmate 

to the clinic where he reported appellant sprayed him in the eyes with cleaning 

solution. 

Appellant claimed he sprayed the inmate in self-defense after he "pulled 

a weapon." Fleming's cell was later inspected, resulting in the confiscation of 

an empty spray bottle "that smelled like cleaning solution." The accusing 

inmate's cell was also searched but neither a weapon nor any other contraband 

was discovered. 
3 A-2741-21

On January 15, 2022, Fleming was charged with committing 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, appellant expounded on his 

statement to Officer Naul. He claims the complaining inmate entered his cell 

with a weapon believed to be a "shank" or "shiv" and he only used the spray 

bottle to "block" him. Appellant further contended the spray bottle's broken 

nozzle resulted in both inmates being sprayed with cleaning solution. 

Appellant's statement also identified the unit officer 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 appellant with a copy of the 

amended charge and an additional twenty-four hours to prepare a defense. That 

same day, however, Fleming requested video footage of the incident. DOC 

1

 The record reveals Fleming was also charged with prohibited act .210, 

"possession of anything not authorized for retention or receipt by an inmate or 

not issued to him or her through regular correctional 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 addressed this charge, and the DOC 

similarly does not discuss it in their submissions before us. We accordingly 

assume the charge was dismissed, and do not address it in our opinion. 
4 A-2741-21

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 alternate vantage point and 

requested a postponement of the hearing. The record also indicates appellant 

requested witness statements from two Senior Corrections Officers. On March 

4, 2022, the same day appellant requested the additional video footage, an 

investigator from the Special Investigations Division (SID) informed the DOC, 

the SID was unable to obtain video of the incident from any alternative angles. 

The next day, appellant wrote a letter to the DHO and specifically 

requested the "opportunity to call the accuser as a [fact] witness." Appellant 

explained his accuser's testimony was necessary, "in 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 inmate. 

In his letter, appellant confirmed the DHO denied his request at the March 

4 hearing. Appellant's counsel substitute submitted a certification in which he 

confirmed both he and appellant requested the accusing inmate be called as a 
5 A-2741-21

fact witness, but the DHO denied their requests stating, "you can't call the 

accuser as a witness." Appellant also requested in the event his request was 

denied, the DHO make a "record of the denial" as required by the Administrative 

Code. Finally, the record also contains a letter from 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 appellant 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 "accurately reflect[ed] what took 

place at the inmate disciplinary hearing," including appellant declining to call 

witnesses. 

The DHO ultimately found appellant guilty of the *.014 charge. In the 

Adjudication of Discipline Report, the DHO stated she considered: (1) the 

preliminary incident report; (2) Officer Naul's report detailing the incident; (3) 

the report regarding the seizure of the empty spray bottle found in appellant's 

cell; (4) the medical report of the victim; (5) the seizure of contraband report; 
6 A-2741-21

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 recreational privileges, 

100 days in restorative housing, and thirty-days loss of canteen privileges. In 

issuing the sanctions, the DHO explained, appellant "needs to follow rules for 

safety and security of others. [He] needs to refrain from accruing charges. [He] 

takes no resp[onsibility] for his actions, only providing excuses." 

Appellant challenged the DHO's decision claiming the DOC violated his 

due process rights as it failed to properly serve him with notice of the *.002 

offense within forty-eight hours; he was not provided with requested evidence 

in a timely manner; and he was denied the opportunity to cross-examine his 

accuser. On April 6, 2022, the Assistant Superintendent upheld the DHO's 

decision and specifically found, appellant "sprayed another inmate in the face 

with cleaning solution. There is no violation of the standards. The sanction 

provided was proportionate to the offense. No leniency will be afforded to you." 

This appeal followed. 

Before us, appellant reprises the contentions he raised before the DHO 

and Assistant Superintendent which, in essence, focus on the alleged deprivation 

of his procedural due process and equal protection rights. He first argues despite 
7 A-2741-21

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, 2022, eleven days after the 

incident without 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 prehearing detention, any 

decision by the DOC to postpone a hearing based on the need for a continued 

investigation must be reviewed within forty-eight hours. He further explains as 

there is no record indicating any such investigation was conducted after January 

25, the final agency decision should be reversed. Finally, 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 rejected his selfdefense claim, he was clearly entitled to call his accuser or engage in crossexamination. He further notes he submitted questions for the DHO or his

counsel substitute to ask his accuser, but the DHO denied his request at both his 

March 4, 2022, and March 9, 2022 hearings. 
8 A-2741-21

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 also notes after he determined 

the requested video footage did not support his claim, 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 the record does not support 

appellant's argument the DOC violated the due process rights afforded him under 

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 appellant's request to call or crossexamine his accuser and its decision to reject appellant'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 that decision "is arbitrary, 

capricious or unreasonable or it is not supported by substantial credible evidence 
9 A-2741-21

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 than 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. Super. 117, 123 (App. Div. 

2002)). We engage in a "careful and principled consideration of the agency 

record and findings" Williams v. Dep't of Corr., 330 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 criminal prosecution. Avant, 67 

N.J. at 522. An inmate is entitled to written notice of the charges at least twentyfour hours prior to the hearing; an impartial tribunal; a limited right to call 

witnesses and present documentary evidence; a limited right to confront and 

cross-examine adverse witnesses; a right to a written statement of the evidence 

relied upon and the reasons for the sanctions imposed; and where the charges 

are complex, the inmate is permitted the assistance of a counsel substitute. Id. 

at 525-33. 
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Further, an inmate has only a limited right to confront 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 "abridged to the extent necessary to 

accommodate the institutional needs and objectives of prisons"); Johnson v. N.J. 

Dept. of Corrections, 298 N.J. Super. 79, 83 (1997) (explaining that an inmate 

is entitled to call witnesses at a disciplinary hearing "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 hearing within reasonable 

limits," N.J.A.C. 10A:4–9.13, and may refuse confrontation and crossexamination under various circumstances, N.J.A.C. 10A:4–9.14(b). 

However, where an inmate's disciplinary "matter turns on the credibility 

of the officer[s] or the inmate, the inmate, upon request, is entitled to 

confrontation and cross-examination of the officer, at least, in the absence of 

any reasons that justify an exception . . . ." Decker v. N.J. Dep't of Corr., 331 

N.J. Super. 353, 359 (App. Div. 2000). That principle is codified in N.J.A.C. 

10A:4-9.14(a) which states an "opportunity for confrontation and crossexamination of the accuser(s) [or] . . . witnesses, if requested shall be provided 

to the inmate or counsel substitute in such instances where the . . . [h]earing 
11 A-2741-21

[o]fficer . . . deems it necessary . . ., particularly when serious issues of 

credibility are involved." See 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 shall be specifically set forth" on 

a designated disciplinary report form. N.J.A.C. 10A:4–9.14(f). Those 

memorialized reasons are critically important for appellate review as that record 

provides "prima facie evidence which will enable reviewing 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 context of the 

aforementioned legal principles, we disagree with appellant'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 inmates confined in 

Prehearing Disciplinary Housing with a hearing within three calendar days of 

their placement "including weekends and holidays, unless there are exceptional 

circumstances, unavoidable delays, or reasonable postponements." 
12 A-2741-21

The three-day requirement is not immutable, however. Indeed, N.J.A.C. 

10A:4-9.8(c) expressly acknowledges there may be "exceptional circumstances, 

unavoidable delays, or reasonable postponements" preventing an inmate 

confined in Prehearing Disciplinary Housing from receiving a hearing within 

three calendar days. Further, as N.J.A.C. 10A: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 the "length of the delay," "reason for the delay," "[p]rejudices to the inmate 

in preparing his/her defense," and "[t]he seriousness 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 disciplinary hearing until January 

25, 2022. We are satisfied that delay does not warrant dismissal of the *.014 

charge, considering the delay was brief, the offense was serious in nature, and 

appellant failed 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-2741-21

We similarly reject appellant's argument reversal is warranted under 

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 hearing 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 DOC emails requesting 

the video footage on four occasions between January 25, 2022, and February 28, 

2022. After viewing the footage on March 4, 2022, however, appellant chose to 

again postpone his hearing and request additional footage from an alternate 

vantage point or camera. It is clear the postponements of both appellant's 

January 25, 2022 and March 4, 2022 hearings were due 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 further investigation. Here, the 

hearing was postponed from January 25, 2022 to March 4, 2022, not because an 

additional investigation was necessary, but because the DOC had not yet 

received the additional video footage appellant requested, 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-2741-21

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 argument. 

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 witness(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 adequate presentation of the 

evidence, particularly when serious issues of credibility are involved." N.J.A.C. 

10A:4-9.14(a). Further, as noted, if the DHO denies a request to call or crossexamine a witness, "the reasons for the denial shall be specifically set forth" on 

a designated disciplinary report form and consistent with 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 particularly critical when an 

inmate claims self-defense to a prohibited act involving the use of force, as the 

inmate "shall be responsible for presenting supporting evidence." N.J.A.C. 

10A:4-9.13(f). Such evidence "shall include each" of the 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-defense 

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 17, 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, appellant then sought to question 

his accuser to establish the elements of his self-defense 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 counsel substitute signed this form 

acknowledging its accuracy. That Adjudication of Discipline Report, however, 
16 A-2741-21

appears to have been used for all three of appellant's hearings on January 25, 

2022; March 4, 2022; and March 9, 2022, and we cannot discern on which date 

appellant was "asked" about presenting witnesses and "declined." 

Based on appellant's March 5, 2022 letter, it appears appellant declined to 

present witnesses prior to viewing the video footage on March 4, 2022. Once 

he learned the video footage did not detail the incident, 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 confrontation and crossexamination." Once the DHO received appellant's letter, the DHO was required 

to either allow appellant to call the witness or state on the Adjudication of 

Discipline Report the reason for denying the witness request. See N.J.A.C. 

10A:4-9.14(a) & (f). Here, the Adjudication of Discipline Report does not state 

the DHO's reason for denying the request nor does it even reference appellant's 

request. 
17 A-2741-21

We reject the DOC's request that we disregard appellant's March 5, 2022 

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 issue in his administrative 

appeal and Assistant Superintendent Lewis failed to address substantively his 

argument. 

We accordingly vacate the April 6, 2022 final agency decision and remand 

for the DHO to address explicitly appellant's request 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 accordance with N.J.A.C. 10A:4-

9.14(a) & (f). Should the DHO determine such examination is appropriate, it 

shall be conducted in accordance with the procedures detailed in N.J.A.C. 

10A:4-9.14(c)-(e). The DHO shall also provide additional factual findings 

specifically addressing appellant's self-defense claim that are discernible to any 

reviewing tribunal or court. 

Vacated and remanded. We do not retain jurisdiction.