                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0348-16T2

LUIS MANSO,

        Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

              Submitted August 21, 2018 – Decided September 4, 2018

              Before Judges Sumners and Gilson.

              On appeal from the New Jersey Department of
              Corrections.

              Luis Manso, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Melissa Dutton Schaffer,
              Assistant Attorney General, of counsel; Kevin
              J. Dronson, Deputy Attorney General, on the
              brief).

PER CURIAM

        Luis Manso, an inmate in State prison, appeals from a final

determination        of   the   New    Jersey    Department     of   Corrections

(Department), which upheld a finding of guilt and sanctions imposed
for committing prohibited act .709, failure to comply with a

written   rule   or   regulation   of       the   correctional   facility,    in

violation of N.J.A.C. 10A:4-4.1(a)(4)(ix).               Specifically, Manso

was found to have sent a letter to a teacher at the prison asking

her for a date.        We reverse because there was no substantial

credible evidence in the record that Manso actually wrote or sent

the letter.

                                    I.

     On September 2, 2016, V.G., a teacher in the education

department at the State Prison, received a letter.               V.G. had been

out on leave, returned on September 2, 2016, and was reviewing her

mail. The typewritten letter was dated "7/7/16" and was not signed

by hand. The letter began: "My name is Luis Manso, I am a paralegal

here in the library here at Northern and I have been wanting to

talk to you."    The letter went on to state, in part: "I find you

very attractive . . . . I wondering if you be interested in going

on a date with me when I get home?"                It ended:     "xoxoxoxoxoxo

Manso."

     The letter arrived in an envelope that had the return address:

"L. Manso 762786B[,] N.S.P.[,] P.O. Box 2300[,] Newark, N.J.

07114."   The envelope also had a postmark indicating that it had

been mailed from Northern State Prison.



                                        2                              A-0348-16T2
       Upon receipt of the letter, V.G. turned it over to Sergeant

J.D.    Sergeant J.D., in turn, gave the letter to Sergeant E.J.,

who    charged   Manso   with    prohibited     acts     .052    (making    sexual

proposals or threats to another) and .709 (failure to comply with

a written rule or regulation).

       The   following   day,    on   September     3,   2016,    Sergeant     S.K.

determined that the disciplinary charges had merit and the charges

were served on Manso.      Manso denied sending the letter, requested

a copy of the letter and any video surveillance, and also requested

that the letter be analyzed for fingerprints.

       A supervising lieutenant also forwarded the letter to a

Special Investigations Division (SID) investigator.                 The record,

however, does not contain any report or summary of an investigation

by SID.      In that regard, the report of the disciplinary hearing

officer does not list any report from SID as a report submitted

or considered.

       The disciplinary hearing began on September 7, 2016, and

concluded on September 8, 2016.             In support of the charges, the

Department     presented   the    letter,     the   postmarked      envelope,      a

statement by V.G., a statement by Sergeant J.D., a statement by

Sergeant E.J., and the disciplinary report.               The hearing officer

also   received    a   report    authorizing      the    disciplinary      housing

placement (DHP) of Manso, a report concerning Manso's medical

                                        3                                  A-0348-16T2
condition when he was placed in DHP, a report on the seizure of

the letter, a use of force report, and an excerpt from the inmate

handbook containing certain facility rules.

     At the hearing, Manso pled not guilty, stating that he had

"no knowledge" of the letter, and that he had been "set up."        Manso

also pointed out that in his eighteen years in prison, he had not

previously been charged with any disciplinary violations.              His

counsel substitute contended that the information in the letter

was "not true[,]" and requested leniency because Manso had not

made any threats.

     The hearing officer found Manso guilty of prohibited act

.709.   In explaining that finding, the hearing officer stated:

          Pleads not guilty, offers no evidence to
          contradict Part A staff report; letter
          admitted into evidence.    [Inmate] statement
          and [counsel substitute] statement noted,
          provides no evidence to mitigate or exonerate.
          Charge has merit. All relied on.

     Manso   was   sanctioned   to   thirty   days   of   administrative

segregation, sixty days loss of commutation time, and fifteen days

loss of recreation privileges.

     The hearing officer did not address the charge of prohibited

act .052, and it appears that charge was dropped.         In that regard,

the record contains no finding of guilt on prohibited act .052

and, thus, we deem that charge to have been dismissed.


                                     4                            A-0348-16T2
     Manso administratively appealed.   On September 9, 2016, the

Department, acting through the Assistant Superintendent, upheld

the disciplinary finding of guilt of prohibited act .709 and the

sanctions imposed.   In rendering the final agency decision, the

Department stated:

          The decision of the hearing officer is upheld.
          Consideration has been taken to all relevant
          factors regarding your imposed disciplinary
          sanctions and appeal.     As a result, your
          appeal is denied: it has been determined that
          the sanction is appropriate and within
          acceptable NJDOC limits. No further actions
          are required.

                                II.

     On this appeal, Manso makes three arguments.          First, he

contends that there was no substantial credible evidence that he

wrote or sent the letter.   Second, he argues that his due process

rights were violated when he was denied the right to obtain a

witness statement. Finally, he alleges that his due process rights

were violated when his request to have the letter analyzed for

fingerprints was denied.    We need only reach the first argument,

because the record does not contain substantial credible evidence

that Manso wrote or sent the letter.

     Our review of agency action is limited.   "An appellate court

ordinarily will reverse the decision of an administrative agency

only when the agency's decision is 'arbitrary, capricious or


                                 5                           A-0348-16T2
unreasonable   or   []   is   not   supported   by   substantial   credible

evidence in the record as a whole.'"            Ramirez v. N.J. Dep't of

Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v.

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

"[i]t is settled that '[a]n administrative agency's interpretation

of statutes and regulations within its implementing and enforcing

responsibility is ordinarily entitled to our deference.'"             Wnuck

v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div.

2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.

Super. 93, 102 (App. Div. 1997)).         The Department is given broad

discretion in matters regarding the administration of a prison

facility, including disciplinary infractions by prisoners.            Russo

v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).

     The regulations governing inmate disciplinary proceedings

state:   "[a] finding of guilt at a disciplinary hearing shall be

based upon substantial evidence that the inmate has committed a

prohibited act."     N.J.A.C. 10A:4-9.15(a).         Substantial evidence

is "such evidence [that] a reasonable mind might accept as adequate

to support a conclusion."       In re Pub. Serv. Elec. & Gas, 35 N.J.

358, 376 (1961) (citations omitted).             In other words, it is

"evidence furnishing a reasonable basis for the agency's action."

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



                                      6                             A-0348-16T2
Div. 2010) (quoting McGowan v. N.J. State Parole Bd., 347 N.J.

Super. 544, 562 (App. Div. 2002)).

       Here, there was no substantial credible evidence in the record

that   Manso   wrote   or       sent   the       letter.      The   hearing   officer

identified the evidence she considered.                    That evidence included

the letter, the postmarked envelope, statements by V.G., Sergeant

J.D., and Sergeant E.J., and the disciplinary report.

       The letter and envelope do not establish that they were

written by or came from Manso.               The letter was typed and was not

signed.    While the letter states that it is from Manso, there was

no evidence that he actually wrote or sent the letter.                        Indeed,

Manso denied knowing anything about the letter.                      His substitute

counsel also contended that much of the information in the letter

was inaccurate.    The initial burden is on the Department to show

substantial credible evidence that a prohibited act has taken

place.    See N.J.A.C. 10A:4-9.15(a); see also Figueroa, 414 N.J.

at 188 (recognizing that the Department bears the burden of

persuasion to sustain a charge of prohibited acts).                     The hearing

officer   never   made      a    credibility        finding    concerning     Manso's

denial.    Instead, she improperly shifted the burden to Manso and

reasoned that he offered no evidence to contradict the staff

report.



                                             7                                A-0348-16T2
      The statement by V.G. merely states that she received the

letter and provides no other basis to link the letter to Manso.

In that regard, V.G. does not state whether she already knew Manso

or whether she had any prior interaction with him.

      Similarly, the statements by Sergeant J.D. and Sergeant E.J.

merely state that they received the letter and the statements do

not   indicate    that   either    sergeant    conducted     any   independent

investigation.      The disciplinary report also does not contain any

substantial credible evidence that Manso wrote or sent the letter.

The report states that Sergeant S.K. reviewed the "reports" from

V.G., Sergeant J.D., and Sergeant E.J., but it discloses no other

investigation.      The report then concludes:          "Charge has merit[.]"

Critically, however, there is no evidence concerning the factual

basis for that conclusion.

      As a consequence, when the hearing officer made her finding

of guilt, she was relying on the existence of the letter and the

envelope that it came in.         No witness for the Department appeared

at the hearing.       Thus, the hearing officer made no credibility

findings.        Instead,   the   hearing     officer    relied    on   written

statements and documents.         None of those statements or documents

provide any direct evidence that Manso wrote or sent the letter.

      We note that Manso requested a fingerprint analysis, but no

analysis was conducted.      We do not suggest that the Department was

                                       8                                A-0348-16T2
required to conduct a fingerprint analysis, but without that

analysis, the Department has no evidence that Manso actually

touched or handled the letter or envelope.   We also note that the

letter was sent to SID for investigation, but the record contains

no results of that investigation.   In short, the Department failed

to show that there was substantial credible evidence supporting

the finding of guilt of prohibited act .709.      Accordingly, the

finding of guilt of prohibited act .709 is vacated and the loss

of sixty days commutation time is to be restored.

     Reversed and vacated.   We do not retain jurisdiction.




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