SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1853-19

ROBERT BROWER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

Submitted September 20, 2021 – Decided September 23, 2021

Before Judges Fasciale and Firko.

On appeal from the New Jersey Department of 

Corrections.

Robert Brower, appellant pro se.

Andrew J. Bruck, Acting Attorney General, attorney for 

respondent (Jane C. Schuster, Assistant Attorney 

General, of counsel; Raajen V. Bhaskar, 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NOT FOR PUBLICATION WITHOUT THE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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Robert Brower, pro se, an inmate at Northern State Prison in Newark, 

appeals from a September 20, 2019 final decision of the New Jersey Department 

of Corrections (DOC). An Assistant Superintendent upheld a disciplinary 

officer's decision finding Brower guilty of prohibited act *.004, fighting with 

another person, N.J.A.C. 10A:4-4.1(a).1 For the reasons that follow, we affirm.

On September 17, 2019,

2

at approximately 1:46 p.m., Brower and inmate 

Charles Clark were observed on camera footage by corrections officers Robert 

Devol and John Rollar "actively fighting" and "exchang[ing] several punches 

before other inmates broke them up." Devol and Rollar heard a "commotion" 

before that while monitoring afternoon recreation. According to Brower, he was 

in the Bayside Trailer 2 West dayroom waiting to use the phone when Clark 

claimed he was next and pushed Brower away from the phone. After the two 

inmates were "identified, separated, and placed in handcuffs," Sergeant Anna 

Miglio arrived at the scene and questioned them. "[B]oth admitted that they 

were fighting over whose turn it was to use the phone."

1

 "An inmate who commits . . . [a] prohibited act[] shall be subject to 

disciplinary action . . . imposed by a hearing officer (DHO) . . . . Prohibited acts 

preceded by an asterisk (*) are considered the most serious . . . ."

2

 Brower incorrectly refers to the date of the incident as September 16, 2019.
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Following medical evaluations and clearance for prehearing disciplinary 

housing, Brower and Clark provided written statements regarding the incident

"alluding to a fight over the phones" and were charged with prohibited act *004. 

Clark stated, "it happen[ed] so fast [I] don't know who . . . hit who first." Brower 

reported that Clark "shoved [him] with both hands around [his] chest area ," and 

Brower responded by intentionally "air-[swinging]" at Clark. The disciplinary 

report charging Brower with *.004 was delivered to him the following day, 

September 18, 2019, by DOC staff. Brower was granted counsel substitute to 

prepare his defense.

On September 20, 2019, the hearing took place. Brower pled "not guilty" 

to the charge and presented his defense. He denied a fight occurred with Clark, 

but rather contended the two engaged in "tussling/horseplay . . . over the phone." 

Counsel substitute relied on Brower's statements. Brower was granted the 

opportunity to call Clark as a witness to testify on his behalf but declined the 

opportunity to do so or to confront and cross-examine adverse witnesses.

Brower was adjudicated guilty of the *.004 charge. He was sentenced to 

fifteen days' loss of recreational privileges, ninety-one days of administrative 

segregation, and sixty days' loss of commutation time. DHO C. Ralph, reviewed 
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Brower's statement for the record and noted the video was not requested by 

either inmate.

DHO Ralph found "[t]ussling means there was some physical contact," 

and "[s]anctions [are] to deter." On September 20, 2019, Brower

administratively appealed the DHO's decision and asserted he and Clark "got 

into an argument about the phone" but . . . "never exchanged any punches." 

Assistant Superintendent A. Lewis entered a disposition upholding the DHO's 

decision on September 24, 2019, explaining: "[y]ou were observed on camera 

engaged in a fight with another inmate. This behavior is disruptive and will not 

be tolerated. The sanction imposed was proportionate to the offense. No 

leniency will be afforded to you." This appeal followed.

Brower raises the following issues on appeal:

POINT ONE

THE STATE AGENCY'S ADMINISTRATIVE 

DECISION WAS ARBITRARY, CAPRICIOUS, AND 

UNREASONABLE IN LIGHT OF THE SUFFICIENT 

CREDIBLE EVIDENCE PRESENT IN THE 

RECORD, HAD IGNORED, AND UNDERVALUED 

SUBSTANTIAL EVIDENCE, ALL IN VIOLATION 

OF THE UNITED STATES AND NEW JERSEY 

CONSTITUTIONS, DUE PROCESS, STATUTE, 

AND REGULATION.

A. Introduction.
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B. Evidence Required.

C. Arbitrary, Capricious, And Unreasonable 

Decision Making.

POINT TWO

THE STATE AGENCY'S ADJUDICATION IS 

INCONSISTENT WITH LAW AND THE POLICIES 

BEHIND THE LEGISLATION, IN VIOLATION OF 

THE UNITED STATES AND NEW JERSEY 

CONSTITUTIONS, DUE PROCESS, STATUTE, 

AND REGULATION.

POINT THREE

[BROWER] WAS DENIED HIS FUNDAMENTAL 

DUE PROCESS RIGHT[S] IN VIOLATION OF THE 

UNITED STATES AND NEW JERSEY 

CONSTITUTIONS, DUE PROCESS, STATUTE, 

AND REGULATION.

A. [Brower] Was Denied His Right To Attend The 

Hearing And Offer Evidence.

B. [Brower] Was Denied The Opportunity To Call 

A Witness(es) And Present Documentary And 

Electronic Video Evidence. In Addition, [Brower] Was 

Denied The Opportunity To Raise A Self-Defense 

Claim To The Charges.

C. [Brower] Was Denied The Opportunity For 

Confrontation And Cross-Examination Of The 

[Accuser(s)] And/Or The State's Witness(es).

D. [Brower] Was Denied His Right To Have The 

Evidence Relied Upon In Making A Determination Of 
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Guilt Documented In The Adjudication Of Disciplinary 

Report [F]orm.

E. The Department's Practices Violate Due Process.

POINT FOUR

THE STATE AGENCY DENIED [BROWER] OF HIS 

RIGHT TO THE EFFECTIVE ASSISTANCE OF 

SUBSTITUTE COUNSEL, IN VIOLATION OF THE 

UNITED STATES AND NEW JERSEY 

CONSTITUTIONS, DUE PROCESS, STATUTE, 

AND REGULATION.

POINT FIVE

THE STATE AGENCY'S FACTUAL CONCLUSIONS 

ARE SO WIDE OFF THE MARK AS TO BE 

MANIFESTLY MISTAKEN GIVING RISE TO A 

SENSE OF WRONGNESS, IN VIOLATION OF THE 

UNITED STATES AND NEW JERSEY 

CONSTITUTIONS, DUE PROCESS, STATUTE, 

AND REGULATION.

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) (citing Circus 

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009)). 

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) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)). 
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"'Substantial evidence' means 'such evidence as a reasonable mind might accept 

as adequate to support a conclusion.'" Figueroa 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)). Nonetheless, we must "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)). 

Brower's own waiver of the opportunity to call witnesses does not 

implicate a due process concern. He had the opportunity to confront and crossexamine witnesses but declined to as evidenced by his counsel substitute's 

signature on the adjudication report. The DHO conducted the disciplinary

hearing in accordance with Title 10A.

Based on case law and our review of the record, the DOC's decision that 

Brower fought with Clark is supported by substantial, credible evidence. Henry, 

81 N.J. at 579-80; see also N.J.A.C. 10A:4-4.1(a). During the proceedings, 

Brower explained he engaged in nothing more than "tussling/horseplay" with 

Clark. The video contradicted Brower's report and hearing testimony. Further, 

our review of Brower's due process concerns shows he was afforded an adequate 

procedural opportunity to present his defense. Moreover, through his counsel 
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substitute, Brower acknowledged that the information in the DOC's hearing 

report accurately reflected what took place at the disciplinary hearing. Brower's 

remaining arguments are without sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(D).

Affirmed.