                                NOT FOR PUBLICATION WITHOUT THE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-5284-17T4

JOHN ARIAS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Argued October 3, 2019 – Decided October 25, 2019

                    Before Judges Fisher, Gilson, and Rose.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Tess Meiling Borden argued the cause for appellant
                    (American Civil Liberties Union of New Jersey
                    Foundation, attorneys; Tess Meiling Borden, Jeanne M.
                    LoCicero, and Alexander R. Shalom, on the briefs).

                    Suzanne Marie Davies, Deputy Attorney General,
                    argued the cause for respondent (Gurbir S. Grewal,
                    Attorney General, attorney; Jane C. Schuster, Assistant
                    Attorney General, of counsel; Suzanne M. Davies, on
                    the brief).
PER CURIAM

      John Arias, 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 the prohibited act of "lying, providing

a false statement to a staff member," in violation of N.J.A.C. 10A:4-4.1(a)(4)(v).

Arias was found guilty of making false allegations in a grievance he filed. We

reverse because there was no substantial credible evidence in the record

identifying the specific lie or false statements made or supporting the conclusion

that the statements were false or lies. Instead, the record only shows that the

Department concluded that the allegations made by Arias were not substantiated.

                                        I.

      The discipline charges arose out of an inmate grievance. We take the facts

from the written record, noting that no witnesses testified at the disciplinary

hearing.

      On May 14, 2018, Arias submitted an inmate grievance that requested he

be reassigned to another housing unit based on alleged "threats, harassment,

verbal abuse, [and] illegal retaliation" by two corrections officers (the May 14

Grievance). The May 14 Grievance referenced an earlier grievance Arias had

filed, which also sought a housing unit reassignment. The May 14 Grievance


                                                                          A-5284-17T4
                                        2
also alleged that Arias had previously reported a safety concern based on

"racist[] comments" made by the two officers. In total, the May 14 Grievance

stated:

           I was told I will be moved to another Unit after I
           reported safety concerns in Unit 3DD. And as of this
           date I am still waiting to be moved.

           Please see my Inquiry #719915 in which I was given a
           response that I will be moved to another Unit, after I
           reported my safety issue in Unit 3DD including racist[]
           comments by [two] officers [].

           Today the problems have gotten worse and on a daily
           basis they include threats, harassment, verbal abuse,
           illegal retaliation, being denied law library and phone
           calls by these [two] officers.

           Please remove me from the custody of these officers by
           moving me to a different housing Unit and under the
           custody of different officers, where [the two officers]
           do not work and CANNOT carry out their threats. Most
           importantly, I request to be moved to a unit where my
           safety is not threatened by abusive officers.

           Thank you for your prompt solution and response.

      The May 14 Grievance was forwarded to the Special Investigations

Division (SID). Two SID officers then interviewed Arias and video recorded

that interview. SID also prepared a report concerning its investigation. SID

concluded that Arias could not identify any specific racist comments made by

the officers. SID also concluded that Arias had failed to provide any valid

                                                                     A-5284-17T4
                                     3
examples of misconduct or any allegations that could be investigated.

Accordingly, SID decided it did not need to interview the two officers or anyone

else.     Finally, SID decided to charge Arias with prohibited act *.704,

"perpetrating frauds, . . . [.]" N.J.A.C. 10A:4-4.1(a)(2)(xxxiv).

        On May 17, 2018, Arias was served with a disciplinary report charging

him with perpetrating a fraud.         The infraction was described as: "An

investigation determined that inmate Arias submitted numerous grievances

which contained false allegations in an attempt to manipulate his housing

assignment."

        On May 21, 2018, a hearing officer conducted a disciplinary hearing. No

witnesses testified at the hearing.      Instead, the hearing officer reviewed

documents and materials, which included the May 14 Grievance, the SID report,

and the video of the interview of Arias by the SID officers. The latter two pieces

of evidence were deemed confidential and they were not shown or provided to

Arias.1

        Arias appeared at the hearing with counsel substitute. The hearing officer

reported that the only statement made by Arias was: "I did not lie. I only wrote


1
  While this appeal was pending, counsel for Arias and the Department agreed
that the SID report and the video were not confidential and those materials have
been filed as part of the record in this matter.
                                                                          A-5284-17T4
                                         4
a grievance." Arias also requested that four inmates be called to testify as

witnesses, but all of those potential witnesses declined to give a statement or

testify.

       The hearing officer amended the charges against Arias to be a violation of

prohibited act .305, lying, providing a false statement to staff. Thereafter, the

hearing officer found Arias guilty of that amended charge. In explaining that

finding, the hearing officer stated:

             Upon investigation by SID, it was determined [inmate]
             grievances . . . contained false allegations in an attempt
             to manipulate his housing. [U]pon review of all
             evidence provided, [hearing officer] believes
             [prohibited act] 305 is more appropriate [and] amended.
             [Inmate] plead no plea. The [witnesses] he requested
             did not assist him ([s]ee D1-D4). He did not wish to
             provide/request anything further to support his claim or
             discredit staff reports. All relied on to determine guilt.

       Arias was then sanctioned to forty days loss of commutation time, thirty

days administrative segregation (suspended for sixty days), thirty days

suspension of JPay (email only), and fifteen days loss of recreational privileges.

       Arias administratively appealed. On June 5, 2018, the Department, acting

through an assistant superintendent, upheld the disciplinary finding of guilt and

the sanctions imposed. In rendering the final agency decision, the Department

stated:


                                                                          A-5284-17T4
                                         5
             My review of this issue reveals that there was
             compliance with the New Jersey Administrative Code
             on inmate discipline which prescribes procedural
             safeguards. The charges were adjudicated according[]
             to the code. The preponderance of evidence presented
             supports the guilty decision of the hearing officer.

                                        II.

       On this appeal, Arias makes three arguments. First, he contends that there

was no substantial credible evidence that he lied or provided false statements.

Second, he argues that the disciplinary decision violates his constitutional right

to petition the government. Finally, he alleges that his constitutional due process

rights were violated because he was not given access to the confidential

evidence. We need only reach the first argument, because the record does not

contain substantial credible evidence that Arias lied or provided false statements

to staff.

       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 unreasonable or [] is not supported by

substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of

Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (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

                                                                           A-5284-17T4
                                        6
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) (second alteration in original) (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 Co., 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. 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 Arias

lied or provided a false statement to staff. Neither the Department nor the


                                                                           A-5284-17T4
                                        7
hearing officer identified the specific statement made by Arias that was deemed

to be a lie or false. More importantly, neither the Department nor the hearing

officer made an independent determination that Arias lied or provided a false

statement. Instead, a review of the record establishes that the Department relied

on the hearing officer and the hearing officer in turn relied on the conclusion by

SID. Significantly, the hearing officer did not hear testimony from anyone from

SID.    Instead, the hearing officer relied on the SID report and the video

interview.

       We fully appreciate the Department's concern regarding inmates who

make false allegations against staff. The procedures for imposing discipline,

however, are well established. 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. Super. at 188 (recognizing that the

Department bears the burden of persuasion to sustain a charge of prohibited

acts). The hearing officer and the Department never made a credibility finding

concerning any statement made by Arias. Instead, the hearing officer and the

Department improperly shifted the burden to Arias with the hearing officer

reasoning that Arias offered no evidence to contradict the "staff reports."

       Just as importantly, the SID report did not identify a specific statement


                                                                          A-5284-17T4
                                        8
made by Arias that was deemed to be a lie or false. Instead, it found that Arias

had not substantiated his allegations.     That Arias did not substantiate the

allegations in his grievance does not automatically lead to the conclusion that

he lied.   Lying or providing a false statement is an intentional act.      The

Department was required to show substantial credible evidence that there was

an intentional lie or false statement. Here, the Department failed to make that

showing. Accordingly, the finding of guilt of prohibited act .305 is vacated and

the loss of forty days commutation time is to be restored.

      Reversed and vacated. We do not retain jurisdiction.




                                                                        A-5284-17T4
                                       9
