SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3061-21 

ANTON RIGNEY, a/k/a 

NICKEL RIGNEY, 

 Appellant, 

v.

NEW JERSEY DEPARTMENT 

OF CORRECTIONS, 

 Respondent. 

 

Submitted October 24, 2023 – Decided November 9, 2023 

Before Judges Sumners and Rose. 

On appeal from the New Jersey Department of 

Corrections. 

Anton Rigney, appellant pro se. 

Matthew J. Platkin, Attorney General, attorney for 

respondent (Sookie Bae-Park, Assistant Attorney 

General, of counsel; Andrew C. Matlack, 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NOT FOR PUBLICATION WITHOUT THE 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-3061-21

While imprisoned at Mid-State Correctional Facility (MSCF), Anton 

Rigney was charged initially with committing two prohibited acts: *.256, 

"refusing to obey an order of any staff member," a Category B offense, N.J.A.C. 

10A:4-4.1(a)(2)(xvii); and *.304, "use of abusive or obscene language to a staff 

member," a Category E offense, N.J.A.C. 10A:4-4.1(a)(5)(ix). The genesis of 

the charges was Rigney's alleged refusal to finish his kitchen work assignment 

and use of profanity against the officers on duty. The Disciplinary Hearing 

Officer (DHO) found Rigney not guilty of committing the *.256 offense, 

modified the *.304 charge, and found Rigney guilty of committing prohibited 

act *.303, "failing to perform work as instructed by a staff member," a Category 

E offense, N.J.A.C. 10A:4-4.1(a)(5)(viii). The sanction imposed was referral 

for a job change. 

Rigney now appeals pro se from an April 20, 2022 final agency decision 

of the New Jersey Department of Corrections (DOC), upholding the DHO's 

adjudication and sanction. Rigney raises a single point for our consideration: 

THE FINAL DECISION OF THE [DOC] SHOULD BE 

VACATED BECAUSE [RIGNEY]'S DISCIPLINARY 

HEARING DID NOT CONFORM WITH 

PROCEDURAL DUE PROCESS REQUIREMENTS. 
3 A-3061-21

Having reviewed the record, we conclude Rigney did not receive proper 

notice of the modified charge and there was no basis for the modification. 

Accordingly, we reverse. 

I.

 All three charges stemmed from an incident that occurred in MSCF's 

kitchen on April 18, 2022, at 7:40 a.m. According to the incident report, Rigney 

approached Officer J. Hernandez1and "demand[ed] his ID . . . so that he could 

leave back to the unit." Hernandez elaborated: 

I ordered . . . Rigney to lower his voice and advised him 

to finish cleaning his work area. He started 

screaming[,] "Fuck you, [f]uck this, I don't need this 

job. I'm out, without my ID." As . . . Rigney walked 

away he approached [Institutional Training Instructor 

(ITI)] Lenard and continued to use profanity and yell. 

As a result of that verbal exchange, Rigney was charged only with prohibited 

acts *.256 and *.304. 

The disciplinary report for the *.256 charge was provided to Rigney on 

April 18, 2022, at 1:05 p.m.; the disciplinary report for the *.304 charge was 

provided on the same day at 1:15 p.m. Notably, however, on the institution's 

copy of the disciplinary report charging the *.304 abusive language prohibited 

1

 The full names of DOC staff officers are not disclosed in the record. 
4 A-3061-21

act, the charge and its description were crossed out and the *.303 prohibited act 

and its description were written in the space above.2 The inmate's copy of the 

disciplinary report for the *.304 charge does not reflect that modification. The 

"Hold-in From Detail Notice," (HFDN) dated April 18, 2022, at 7:40 a.m., 

includes only the *.304 and *.256 charges.3

Pursuant to N.J.A.C. 10A:4-9.2, Rigney was entitled to twenty-four hours 

to prepare his defense. Rigney requested and was afforded the assistance of a 

counsel substitute, see N.J.A.C. 10A:4-9.12, and pled not guilty. The hearing 

was conducted the following day at 8:30 a.m., around nineteen hours after 

Rigney received the *.256 and *.304 charges. According to the disciplinary 

reports for both charges, Rigney did not waive the twenty-four-hour-notice 

requirement under the N.J.A.C. 10A:4-9.2; see also Malacow v. N.J. Dep't of 

Corr., 457 N.J. Super. 87, 94 (App. Div. 2018). Nor is there any indication in 

the record that Rigney asserted the DOC violated its regulation. 

2

 From what we can discern, the original *.304 charge and description appear 

to be written in a darker print than the *.303 charge and description. 

3

 The HFDN informs inmates they will "be held in from detail until cleared by 

the [Institutional Classification Committee]." 
5 A-3061-21

The adjudication report for the *.256 prohibited act indicates the DHO 

entered her not guilty finding at 8:30 a.m. In support of her decision, the DHO 

concluded the *.256 charge was "[r]epetitive to [*.]304." 

At the hearing, the DOC submitted the HFDN, Hernandez's report, and 

MSCF's appointment roster. Rigney was given the opportunity to present 

witnesses on his behalf and confront adverse witnesses; he declined to do so. 

However, counsel substitute made a statement on Rigney's behalf, which is 

reflected in the DHO's handwritten adjudication decision. 

In her decision, the DHO summarized the "evidence relied on to reach 

[the] decision": "[Rigney] ple[d] not guilty. [Rigney] stated that he asked the 

ITI for his ID to go to group, [h]owever ITI was giving [him] a hard time. ITI 

wanted [Rigney] to finish washing the dishes before leaving work." The DHO 

explained her reason for imposing the job change sanction: "Evidence taken 

into evidence. Leniency granted last charge for 204 [sic]." 

The adjudication report for the modified *.303 charge reflects the DHO 

entered her guilty finding at 8:39 a.m. Under certain circumstances, a hearing 

officer has the authority to modify a charge: 

Whenever it becomes apparent at a disciplinary hearing 

that an incorrect prohibited act is cited in the 

disciplinary report but that the inmate may have 

committed another prohibited act, the Adjustment 
6 A-3061-21

Committee or [DHO] shall modify the charge. The 

inmate shall be given the option of a 24-hour 

postponement to prepare his or her defense against the 

new charge or have the new charge adjudicated at that 

time. 

[N.J.A.C. 10A:4-9.16(a) (emphasis added).] 

Modification of a charge thus triggers entitlement to notice and a hearing to 

address the newly charged infraction. There is no indication in the record the 

DHO afforded Rigney the option of postponing the hearing on the modified 

charge. 

In his April 19, 2023 disciplinary appeal, Rigney essentially challenged 

the unfairness underpinning the DHO's decision and sanction. Rigney asserted 

the DHO acknowledged he "was just trying to get [his] ID to go to group, so she 

said she was going to refer him to classification for job change." To do so 

however, the DHO said Rigney must "have a guilty charge, so she found [him] 

guilty of a minor infraction." Maintaining the facts did not support a guilty 

charge, Rigney sought reconsideration of the DHO's findings, explaining: "A 

guilty finding affect[ed his] classification score, [his] ability to order food 

package [sic], and [his] record in general." Rigney did not, however, contend 

that he was not afforded proper notice of the charges under N.J.A.C. 10A:4-9.2 

or N.J.A.C. 10A:4-9.16(a). 
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On April 20, 2022, the MSCF assistant superintendent upheld the DHO's 

decision. In the explanation portion of the disposition form, the assistant 

superintendent wrote: "Leniency already granted by DHO. Statement of the 

charge with facts of incident are found to have merit and support the charge as 

written. Appeal denied. Sanction upheld." This appeal followed. 

Other than asserting a general due process argument, and noting his 

hearing occurred the day after the incident, Rigney does not expressly challenge 

the notice requirements under the governing regulations. Instead, Rigney 

maintains the DHO found him guilty of the "less severe" *.303 charge "so he 

could be assigned to a new work detail" and not because he was guilty of "'failing 

to perform work as instructed by a staff member.'" N.J.A.C. 10A:4-

4.1(a)(5)(viii). Rigney urges us to reverse the DOC's decision, vacate the guilty 

finding, restore his good time credit, and terminate any remaining sanctions. 

In its responding brief, the DOC contends: "Rigney was charged with 

committing prohibited acts *.303, *.304, and *.256," and "[o]n April 18, 2022, 

a [c]orrections [s]ergeant served the charge on Rigney, . . . and referred the 

charge to a hearing office for further action." (Emphasis added). Noting the 

*.303 charge was the subject of the hearing, and the *.304 and *.256 charges 

"were dismissed," the DOC suggests the *.303 charge was delivered to Rigney 
8 A-3061-21

the day before the hearing. Asserting "Rigney received all the process he was 

due," the DOC neither addresses the notice requirement under N.J.A.C. 10A:4-

9.2 nor N.J.A.C. 10A:4-9.16(a). 

II. 

We acknowledge the limited scope of our review. Malacow, 457 N.J. 

Super. at 93; see also In re Stallworth, 208 N.J. 182, 194 (2011). We have long 

recognized "[p]risons are dangerous places, and the courts must afford 

appropriate deference and flexibility to administrators trying to manage this 

volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 

(App. Div. 1999). A reviewing court "may not substitute its own judgment for 

the agency's, even though the court might have reached a different result." In re 

Stallworth, 208 N.J. at 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 

(2007)). "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.'" Blanchard v. N.J. Dep't. 

of Corr., 461 N.J. Super. 231, 237-38 (App. Div. 2019) (quoting Henry v. 

Rahway State Prison, 81 N.J. 571, 579-80 (1980)). 

Prison disciplinary hearings are "not part of a criminal prosecution and 

thus the full panoply of rights due a defendant in such a proceeding does not 
9 A-3061-21

apply." Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. 

Brewer, 408 U.S. 471, 480 (1972)). However, an inmate is entitled to: written 

notice of the charges "at least twenty-four hours prior to the hearing, so the 

inmate can prepare a defense"; 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 counsel substitute. Id. at 

523-30. 

When reviewing a determination of the DOC in a matter involving 

prisoner discipline, we consider not only whether there is substantial evidence 

that the inmate committed the prohibited act, but also whether, in making its 

decision, the DOC followed regulations adopted to afford inmates procedural 

due process. See McDonald v. Pinchak, 139 N.J. 188, 194-96 (1995). Thus, our 

review is not "perfunctory," nor is "our function . . . merely [to] rubberstamp an 

agency's decision." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191

(App. Div. 2010). Instead, we "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)). An agency's "interpretation of the 
10 A-3061-21

law and the legal consequences that flow from established facts are not entitled 

to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995). 

To perform our function, the agency must provide a reasonable record and 

statement of its findings. Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 63 

(App. Div. 1999). "No matter how great a deference we must accord the 

administrative determination, we have no capacity to review the issues at all 

'unless there is some kind of reasonable factual record developed by the 

administrative agency and the agency has stated its reasons' with particularity." 

Ibid. (quoting In re Issuance of a Permit, 120 N.J. 164, 173 (1990)). 

The circumstances surrounding the change in Rigney's charge from *.304 

to *.303 are unclear. Although both charges may have arisen out of the same 

incident, they are dissimilar Category E offenses. Thus, neither could be 

considered a lesser-included charge of the other. Conversely, the *.303 offense 

could be considered a lesser-include offense of the *.256 Category B offense 

because they share the same elements, i.e., failing to follow a staff member's 

orders. Crucially, however, the DHO found Rigney not guilty of the *.256 

charge, and the adjudication report for that offense does not reflect that the 

charge was amended to include the *.303 prohibited act. 
11 A-3061-21

We recognize the hearing officer's authority to modify the charge pursuant 

to N.J.A.C. 10A:4-9.16(a). She could do so, however, only if Rigney were given 

the option of twenty-four hours to prepare to defend the new charge or waived 

his right to that timeframe. See ibid.; see also Malacow, 457 N.J. Super at 94. 

Although counsel substitute can waive that notice period on behalf of an inmate, 

there is no indication in the record that was done here. 

Moreover, it is unclear from the record when the disposition form was 

revised to reflect the *.303 modified charge. We cannot discern whether the 

charge was modified before the hearing commenced or, as Rigney argues, when 

the DHO imposed the sanction to effectuate his job change. Ordinarily, we 

might reverse and remand for a new hearing to afford Rigney the opportunity to 

defend against the modified charge. However, we are hard pressed to understand 

how the DHO could have found Rigney not guilty of disobeying a staff member's 

order under *.256, yet guilty of "failing to perform work as instructed by a staff 

member" as modified from the *.304 charge, "use of abusive or obscene 

language to a staff member," another Category E offense, which does not share 

the same elements. On this record, it therefore appears the DHO's guilty finding 

was premised on the reason for the sanction imposed: to refer Rigney for a job 
12 A-3061-21

change. Although well-intentioned, the DHO's decision cannot stand in view of 

the procedural and substantive deficiencies. 

We therefore reverse the DOC's final decision and vacate the guilty 

finding on the *.303 charge and related sanction against Rigney.