SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3337-19

KHILIL BRYANT, a/k/a

KHILL BRYANT, and

DYMILL BRYANT,

Appellant,

v.

NEW JERSEY DEPARTMENT 

OF CORRECTIONS,

Respondent.

____________________________

Submitted January 5, 2022 – Decided March 17, 2022

Before Judges Whipple and Susswein.

On appeal from the New Jersey Department of 

Corrections.

Khilil Bryant, appellant pro se.

Andrew J. Bruck, Acting Attorney General, attorney for 

respondent (Donna Aarons, Assistant Attorney 

General, of counsel; Chanell Branch, 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NOT FOR PUBLICATION WITHOUT THE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.
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Petitioner Khilil Bryant appeals from a final agency decision by the 

Department of Corrections (DOC) affirming his administrative conviction for 

two counts of assaulting any person, N.J.A.C. 10A:4-4.1(a)(1)(ii) (*.002), and 

one count of conduct that disrupts or interferes with the orderly running of a 

correctional facility, N.J.A.C. 10A:4-4.1(a)(2)(xix) (*.306). Bryant argues that 

the DOC's decision was arbitrary and capricious for failing to consider his 

medical condition—diabetes—as it could have explained his uncharacteristic,

violent actions. After carefully reviewing the record, we remand for a new 

hearing at which the hearing officer shall make specific findings as to whether 

Bryant's assaultive conduct was a voluntary act considering his medical 

condition at the time of the incident. 

I.

We discern the following facts and procedural history from the record. 

On March 4, 2020, Bryant's cellmate, Scott Audrique, notified Corrections 

Officer Mears that Bryant was banging his head against the cell doors. Officer 

Mears went to the cell to evaluate the situation and witnessed Bryant 

demonstrating "extremely odd behavior." The record indicates that Officer 

Mears had prior knowledge that Bryant is a diabetic. Upon witnessing Bryant's 

behavior, Mears initiated a "Code 53"—a procedure used when a medical 
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emergency arises. Sergeant Brown and multiple staff members responded to the 

call. 

Officer Mears witnessed Bryant run out of his cell. When Sergeant Brown 

arrived at the scene, he witnessed Bryant "shouting obscenities." Brown ordered 

Bryant "to get down on the ground." Bryant refused and began running towards 

Officer Mears. Mears then "took [Bryant] to the ground." Bryant "became 

extremely combative" and placed his arms around Mears' head "in a head lock 

fashion." At this point, another officer on the scene, Officer Y. Brown,1initiated 

a Code 33—a procedure for when there is an emergency in the prison and an 

officer requires assistance. 

Sergeant Brown struck Bryant twice in the shoulders with a baton. In 

addition, while attempting to handcuff Bryant, two officers "delivered a burst of 

[oleoresin] OC Spray to [] Bryant." The officers handcuffed Bryant and carried 

him down the stairs. The record reflects that while Bryant was being carried, he 

"again became combative and delivered a front kick to the stomach" of one of 

the officers. That prompted officers to take Bryant "back down to the ground." 

1

 In the interest of clarity, the record shows that Officer Y. Brown and Sergeant 

Brown are two different people.
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Once on the ground, Bryant became compliant and medical staff placed him on 

a stretcher.

Bryant was charged with two counts of assaulting any person, *.002, and 

one count of conduct which disrupts or interferes with the orderly running of a

correctional facility, *.306. The hearing was initially scheduled for March 6, 

2020, but was postponed for medical reasons. The hearing was convened on 

March 13, 2020, at which Bryant pled not guilty. A memorandum was submitted 

into evidence from Jeffrey Pomerantz, DO,2the Site Medical Director, 

explaining that "it is possible for a . . . diabetic to have a sudden drop in blood 

sugar despite compliance with [a] medical regimen. The patient has not evinced 

noncompliance with [his] medical regimen . . . . [I]t is possible to have no 

warning symptoms of [hypoglycemia] with a brittle diabetic."

The hearing officer found Bryant guilty on all charges. The hearing 

officer determined that although Bryant had no prior history of institutional 

violence, on this occasion, he assaulted two officers. The hearing officer 

acknowledged that Bryant suffers from a medical condition—diabetes—but 

determined that Bryant "must be aware of his medical condition and the 

consequences" that may be associated with that condition. The hearing officer 

2

 "DO" refers to Doctor of Osteopathic Medicine. 
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thus rejected Bryant's contention that he had no recollection of the incident 

because of low blood sugar. 

Bryant was sanctioned to 365 days of administrative segregation, 120 

days' loss of commutation time, and 15 days' loss of recreation privileges. 

Bryant administratively appealed the decision. The DOC determined that 

Bryant's "behavior was disruptive in nature and will not be tolerated. The 

sanction imposed was proportionate to the offense. No leniency will be afforded 

to you."

This appeal followed. Bryant raises the following contentions for our 

consideration:

POINT I

GUILTY FINDING ARBITRARY AND 

CAPRICIOUS WHEREIN APPELLANT'S 

HYPOGLYCEMIA CLAIM WAS IGNORED. 

POINT II

HEARING OFFICER DECISION IN EXPLAINING 

HER FINDINGS DOES NOT SUFFICE FOR THE 

RECORD. 

II.

We begin our analysis by acknowledging the legal principles governing 

this appeal. Our Supreme Court has held that inmates are afforded due process 
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rights in disciplinary proceedings. Avant v. Clifford, 67 N.J. 496, 525–33 

(1975); see also McDonald v. Pinchak, 139 N.J. 188, 193–94 (1995); Jacobs v. 

Stephens, 139 N.J. 212, 215 (1995). In Malacow v. N.J. Dep't of Corr., we 

summarized an inmate's due process rights: 

[a]n inmate facing disciplinary action must be provided 

with the following limited protections: (1) written 

notice of the charges, provided at least twenty-four 

hours before the hearing, so the inmate can prepare a 

defense; (2) an impartial tribunal, consisting of either 

one [hearing officer] or a three-member adjustment 

committee; (3) the assistance of a counsel substitute if 

the inmate is illiterate or unable to collect or present 

evidence; (4) the right to call witnesses and present 

documentary evidence, provided it is not "unduly 

hazardous to institutional safety or correctional goals"; 

(5) the right to confront and cross-examine adverse 

witnesses; and (6), quoting the Standards on the Inmate 

Discipline Program section 254.283, "a written 

statement of the fact-findings is given to the inmate by 

the [hearing officer] or by the adjustment committee 

chairman as to the evidence relied upon, decision and 

the reason for the disciplinary action taken unless such 

disclosure would jeopardize institutional security."

[457 N.J. Super. 87, 93–94 (App. Div. 2018) (quoting 

Avant, 67 N.J. at 525–33).]

As the Supreme Court noted in McDonald, the regulatory framework for 

adjudicating charges "strike[s] the proper balance between the security concerns 

of the prison, the need for swift and fair discipline, and the due process rights of 

the inmates." 139 N.J. at 202. 
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The scope of our review is narrow. As a general matter, we will disturb 

an agency's adjudicatory decision only upon a finding that the decision is 

"arbitrary, capricious or unreasonable," or is unsupported "by substantial 

credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 

N.J. 571, 579–80 (1980) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 

562 (1963)). In determining whether an agency action is arbitrary, capricious, 

or unreasonable, a reviewing court must examine:

(1) whether the agency's action violates express or 

implied legislative policies, that is, did the agency 

follow the law; (2) whether the record contains 

substantial evidence to support the findings on which 

the agency based its action; and (3) whether in applying 

the legislative policies to the facts, the agency clearly 

erred in reaching a conclusion that could not reasonably 

have been made on a showing of the relevant factors.

[In re Carter, 191 N.J. 474, 482–83 (2007) (quoting 

Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Our deference to the adjudicatory decisions made by the DOC is 

especially appropriate in view of that agency's important mission to safeguard 

prison safety and security, which includes the protection of corrections officers. 

See Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 238–39 (App. Div. 

2019) (cautioning that a reviewing court should "not substitute its own judgment 

for the agency's . . . ."). In Blanchard, we emphasized that "prisons are 
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dangerous places, and the courts must afford appropriate deference and 

flexibility to administrators trying to manage this volatile environment." Id. at 

238 (quoting Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 

1999)). We accept that DOC must use all reasonable means to sanction and 

deter violence. 

Furthermore, we are deferential to an agency's expertise. See Murray v. 

State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001) 

(quotation marks omitted) (quoting In re Vineland Chem. Co., 243 N.J. Super. 

285, 307 (App. Div. 1990)) ("[W]here there is substantial evidence in the record 

to support more than one regulatory conclusion, it is the agency's choice which 

governs."). We add, however, that while the DOC has unquestioned expertise 

in maintaining security within an institution, it does not necessarily have 

comparable expertise with respect to medical issues, especially when, as in this 

case, the agency does not rely upon medical evidence in the form of an expert 

opinion. 

As a general matter, in an appeal from a final decision in a prisoner 

disciplinary matter, we consider whether there is substantial evidence in the 

record to support the Department's decision that the inmate committed the 

prohibited act. Blanchard, 461 N.J. Super. at 237–38 (citing Henry, 81 N.J. at 
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579–80 (1980)). "Substantial evidence has been defined alternately as 'such 

evidence as a reasonable mind might accept as adequate to support a conclusion,' 

and 'evidence furnishing a reasonable basis for the agency's action.'" Id. at 238 

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

2010)); see also N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary 

hearing shall be based upon substantial evidence that the inmate has committed 

a prohibited act."). We note, however, that "our review is not 'perfunctory,' nor 

is 'our function . . . merely to rubberstamp an agency's decision.'" Ibid. (quoting 

Figueroa, 414 N.J. Super. at 191). Rather, "[w]e are constrained to engage in a 

'careful and principled consideration of the agency record and findings.'" Ibid.

(quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).

In a criminal prosecution, the State bears the burden of proving the 

defendant committed a "voluntary" act. N.J.S.A. 2C:2-1(a) provides:

A person is not guilty of an offense unless his [or her] 

liability is based on conduct which includes a voluntary 

act or the omission to perform an act of which he [or 

she] is capable. A bodily movement that is not a 

product of the effort or determination of the actor, 

either conscious or habitual, is not a voluntary act 

within the meaning of this section. 

Proof of a voluntary act is one of the minimum conditions for imposing 

criminal liability. See State v. Penna, 178 N.J. 297, 304 (2004) (citing State v. 
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Sexton, 160 N.J. 93, 98 (1999); N.J.S.A. 2C:2-1, -2). The drafters of the New 

Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9 (penal code), 

recognized that the requirement of a voluntary act "is reflective of the fact that 

the law cannot hope to deter involuntary movement." N.J.S.A. 2C:2-1(a) cmt. 

1 (1971). The penal code commentators further explained that N.J.S.A. 2C:2-

1(a) "should be interpreted to exclude from the definition [of voluntary act]

reflex actions, convulsions . . . [and] states of physical activity where selfawareness is grossly impaired or even absent, such as epileptic fugues . . . ." 

N.J.S.A. 2C:2-1(a) cmt. 3 (1971). 

We believe the "bedrock" requirement to prove a voluntary act, see Penna, 

178 N.J. at 304, applies not only to criminal prosecutions but also to 

administrative prosecutions for inmate disciplinary infractions. The regulations 

governing the conduct of inmates cannot hope to deter or otherwise prevent 

involuntary movements resulting from a medical crisis when, as in this case, the 

inmate appears to be dutifully complying with his prescribed medical regimen. 

III.

We need spend little time addressing Bryant's argument that that the DOC 

failed to present substantial evidence of his assaultive conduct. See N.J.A.C. 

10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing shall be based upon 
11 A-3337-19

substantial evidence that the inmate has committed a prohibited act."). That 

portion of Bryant's argument lacks sufficient merit to warrant extensive 

discussion. R. 2:11-3(e)(1)(D). The record shows that Bryant became 

"extremely combative" and placed Officer Mears in a headlock. Further, the 

record shows that while Bryant was being carried down the stairs, he "again 

became combative and delivered a front kick to the stomach" of an officer. 

Defendant's conduct, without question, constitutes an assault and disrupted or 

interfered with the security or orderly running of the correctional facility.

The critical fact-sensitive issue raised in this case, however, is not whether 

Bryant physically resisted and assaulted corrections officers, but rather whether 

his violent outburst was a volitional act. Bryant argues that the "[g]uilty finding 

[was] arbitrary and capricious wherein appellant's hypoglycemia claim was 

ignored." Although we do not agree that Bryant's hypoglycemia claim was 

"ignored," we do agree that the hearing officer paid insufficient attention to 

whether Bryant's uncharacteristic violent outburst was the result of an acute 

hypoglycemic event. The hearing officer's decision discounted the medical 

evidence, reasoning that Bryant should have been aware of his medical condition 

and the consequences that may be associated with that condition. 
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The hearing officer's finding that Bryant was aware of his diabetes misses 

the point. We are not dealing with a situation where, for example, a person with 

a potentially debilitating medical condition ignores medical advice and chooses 

to operate a vehicle or heavy machinery. In that example, the individual is 

disregarding the risk of a seizure or other crippling medical event. Conversely,

an inmate has no choice in deciding when to interact with corrections officers 

or other inmates. A diabetic inmate may be aware of the disease and yet be 

unable to prevent a hypoglycemic episode.

Nor does the record suggest that Bryant was noncompliant with his 

medical regimen to address his diabetes. On the contrary, the record shows 

sufficient evidence that he was complying with his prescribed medical regimen. 

The record also shows evidence that a sudden drop in blood sugar, 

hypoglycemia, might occur without warning. In these circumstances, we are not 

convinced the hearing officer made adequate findings to discount the possibility 

that defendant's aberrant behavior was the result of a medical emergency rather 

than a voluntary act amenable to deterrence by the threat of discipline. 

We recognize that Pomerantz's report did not expressly opine that Bryant 

experienced hypoglycemia at the time of the incident, much less that a sudden 

drop in blood sugar level caused Bryant's bizarre and ultimately combative 
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behavior. We nonetheless conclude that Pomerantz's report raised the issue 

whether Bryant's uncharacteristic behavior—which led to a code 53 medical 

emergency—and the ensuing violent, profanity-laced outburst was volitional. 

We note the medical evidence Bryant submitted at the hearing was not listed 

under the "Summary of evidence relied on to reach [a] decision." As we have 

noted, although we generally defer to the DOC in matters of prison safety and 

security, see Blanchard, 461 N.J. at 238–39, DOC bears responsibility to provide 

proper reasons for imposing sanctions, see Malacow, 457 N.J. Super. at 94 

(noting that even if an inmate's due process rights are not violated, remand may 

be warranted if the hearing officer fails to provide adequate reasons for 

sanctions). 

Because the hearing officer in this instance failed to provide a suitable 

explanation for why the medical evidence did not support Bryant's claim, we 

conclude the decision as it stands is arbitrary and capricious. We therefore 

remand the matter for a new hearing at which the hearing officer shall make 

findings concerning the medical evidence and whether defendant's assaultive 

conduct was a voluntary act or instead a result of an acute medical condition 

over which Bryant had no warning or control. If the DOC chooses to present 

additional medical evidence, it shall provide adequate notice to Bryant before 
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the re-hearing. We offer no opinion on whether Bryant committed a voluntary 

act when he resisted and assaulted the corrections officers.

Reversed and remanded for proceedings consistent with this opinion. We 

do not retain jurisdiction.