                                NOT FOR PUBLICATION WITHOUT THE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-0464-18T1

TREVIN ALLEN,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted June 24, 2020 – Decided July 14, 2020

                   Before Judges Accurso and DeAlmeida.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Trevin Allen, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Christopher C. Josephson, Deputy
                   Attorney General, on the brief).
PER CURIAM

      Appellant Trevin Allen, an inmate in the custody of the Department of

Corrections (DOC), appeals from the agency's August 27, 2018 final

determination upholding a hearing officer's decision adjudicating him guilty of

two disciplinary infractions and imposing sanctions. We affirm.

                                       I.

      The following facts are derived from the record. On August 19, 2018,

prison staff suspected Allen was attempting to smuggle contraband into the

facility by having swallowed drugs obtained during a visit. Officers placed

Allen in a cell without an operating toilet with instructions that he notify an

officer when he needed to evacuate his bowels so his stool could be examined

for contraband.

      The following morning, a video camera recorded Allen hiding behind the

cell's toilet and defecating onto a tray from the cafeteria. Allen then picked

through his feces, removing objects that he placed in his mouth and swallowed.

Officers who reviewed the videotape removed Allen from the cell, placed him

in an adjoining cell, and instituted a search. They discovered multiple fragments

of balloons typically used to ingest drugs on the floor in the area of the toilet

and hidden in the mattress, with which Allen had tampered.


                                                                         A-0464-18T1
                                       2
      The next day, after being returned to his original cell, Allen defecated on

the floor and smeared his feces on the cell wall. Inmates assigned to sanitation

duty were later required to come into contact with Allen's feces when they

cleaned the cell.

      With respect to Allen's behavior on the first day, a corrections sergeant

completed a disciplinary report detailing the contents of the videotape and the

contraband discovered during the search. He recommended Allen be charged

with infraction *.306, conduct which disrupts or interferes with the security or

orderly running of the correctional facility, in violation of N.J.A.C. 10A:4-

4.1(a)(2)(xxix).1

      Another corrections sergeant conducted an investigation and, based on his

findings, approved the disciplinary charge and referred the matter for a hearing.

The sergeant delivered a copy of the charge to Allen, who pleaded guilty and

requested the assistance of counsel substitute.




1
   Allen was also charged with infraction .210, possession of anything not
authorized for retention or receipt by an inmate or not issued to him or her
through regular correctional facility channels, contrary to N.J.A.C. 10A:4 -
4.1(a)(4)(iii), and infraction .152, destroying, altering, or damaging government
property, or the property of another person. N.J.A.C. 10A:4-4.1(a)(4)(i). Those
charges are not before the court.
                                                                         A-0464-18T1
                                        3
      At the hearing, the hearing officer revised the charge to infraction *.708,

refusal to submit to a search, in violation of N.J.A.C. 10A:4-4.1(a)(2)(xxxv).

Allen, who was provided counsel substitute, maintained his guilty plea and

requested leniency. He declined an offer to call witnesses.

      The hearing officer reviewed the evidence, finding it sufficient to sustain

the charge, and sanctioned Allen to 180 days in administrative segregation, a

180-day loss of commutation credits, a fifteen-day loss of recreation privileges,

365 days of urine monitoring, and a permanent loss of contact visits. The

hearing officer determined the sanctions were appropriate to encourage

compliance with orders, to maintain the safe and secure operation of the facility,

and to hold Allen accountable for his actions.

      With respect to Allen's behavior on the second day, a senior corrections

officer completed a disciplinary report recommending Allen be charged with

infraction *.012, throwing bodily fluid at any person or otherwise purposefully

subjecting such person to contact with a bodily fluid, in violation of N.J.A.C.

10A:4-4.1(a)(1)(vi).

      A corrections sergeant conducted an investigation and, based on his

findings, approved the disciplinary charge and referred the matter for a hearing.




                                                                          A-0464-18T1
                                        4
The sergeant delivered a copy of the charge to Allen, who pleaded not guilty

and requested the assistance of counsel substitute.

      At the hearing, Allen, who was represented by counsel substitute, argued

he was not guilty of the infraction because he did not throw his feces, but

smeared it on a wall. 2 He declined an offer to call witnesses. Allen's counsel

substitute requested leniency.

      The hearing officer determined Allen's proffered defense was insufficient

because the regulation prohibits not only throwing bodily fluids, but purposely

subjecting others to come into contact with bodily fluids. The hearing officer

adopted the reasoning in the officer's disciplinary report that Allen's behavior

compelled the inmate sanitation crew to come into contact with his feces when

they cleaned the cell.

      Having adjudicated Allen guilty of the infraction, the hearing officer

sanctioned him to 365 days in administrative segregation, a 365-day loss of

commutation credits, and a ten-day loss of recreation privileges. The hearing

officer determined the sanctions were warranted to deter vulgar behavior, hold

Allen accountable for his actions, prevent the spread of diseases, and promote



2
  Allen does not dispute that feces is a bodily fluid for purposes of the inmate
disciplinary code. See N.J.A.C. 10A:4-1.3.
                                                                        A-0464-18T1
                                       5
the safe and orderly operation of the facility. The hearing officer did not specify

whether the sanctions for the two infractions were to run concurrently or

consecutively.

      Allen filed an administrative appeal of the adjudications. An Assistant

Superintendent upheld both adjudications and the sanctions imposed, noting

Allen's behavior on the first day was a clear attempt to avoid being caught with

contraband and that smearing feces on the wall on the second day created a

hazardous environment for the sanitation crew.

      This appeal followed. After Allen filed his brief, we granted the DOC's

motion for a limited remand to permit the hearing officer to issue an

amplification further explaining the justification for the sanctions imposed. In

addition to reiterating the previously noted reasons for the sanctions, t he

amplification explained the sanctions for the two infractions were to run

consecutively because they arose from separate incidents that took place on

different dates.

      In his initial brief, Allen raised the following arguments:

             POINT I

             THE COURTLINE HEARING OFFICER ERRED IN
             THE FINDING OF GUILT AND DID NOT TAKE
             INTO   ACCOUNT    APPELLANT[']S CLEAN
             URINALYSIS AND CLEAN STOOL SAMPLES.

                                                                           A-0464-18T1
                                        6
             POINT II

             THE COURTLINE HEARING OFFICER VIOLATED
             APPELLANT[']S RIGHTS BY SENTENCING
             APPELLANT TO A[] SENTENCE THAT EXCEEDS
             THE LEGISLATURE[']S MANDATE OF 365 DAYS.

             POINT III

             THE COURTLINE HEARING OFFICER ERRED IN
             THE FINDING OF GUILT BECAUSE THE
             COURTLINE SERGEANT WAS THE OFFICER FOR
             COURTLINE RESULTING IN A LACK OF
             IMPARTIALITY AND A VIOLATION OF
             APPELLANT[']S RIGHT TO FAIRNESS.

     In a supplemental brief filed after the remand, Allen raised the following

arguments:

             POINT I

             THE DISCIPLINARY HEARING OFFICER'S
             DECISION VIOLATED DUE PROCESS.

             POINT II

             THE    OFFICER  TH[A]T   SAT   IN   THE
             DISCIPLINARY HEARING WAS THE SAME
             OFFICER THAT LOCKED THE APPEL[L]ANT UP.

                                     II.

     Our review of a final agency decision is limited. Reversal is appropriate

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


                                                                       A-0464-18T1
                                      7
unsupported by substantial credible evidence in the record as a whole. Henry v.

Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J.

644, 657 (1999) (holding that a court must uphold an agency's findings, even if

it would have reached a different result, so long as sufficient credible evidence

in the record exists to support the agency's conclusions). "[A]lthough the

determination of an administrative agency is entitled to deference, our appellate

obligation requires more than a perfunctory review." Figueroa v. N.J. Dep't of

Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of

Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)).

      "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 as a reasonable mind might

accept as adequate to support a conclusion." Figueroa, 414 N.J. Super. at 192

(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). In other

words, it is "evidence furnishing a reasonable basis for the agency's action."

Ibid. (quoting McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App.

Div. 2002)).

      In addition, an inmate is not accorded the full panoply of rights in a

disciplinary proceeding afforded a defendant in a criminal prosecution. Avant


                                                                           A-0464-18T1
                                        8
v. Clifford, 67 N.J. 496, 522 (1975). Instead, prisoners are entitled to: written

notice of the charges at least twenty-four hours prior to the hearing; 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 assistance of a counsel

substitute. Id. at 525-33; accord Jacobs v. Stephens, 139 N.J. 212 (1995);

McDonald v. Pinchak, 139 N.J. 188 (1995).

      Having reviewed the record in light of these precedents, we conclude there

is ample evidentiary support for the DOC's final decision. Allen admitted guilt

to the *.708 charge. He intentionally evacuated his bowels and manipulated his

feces in order to avoid a search for contraband. In addition, Allen admitted to

having smeared his feces on the wall of his cell the day after his first infraction.

It was reasonable for the Assistant Superintendent to affirm the hearing officer's

determination that by putting his feces on the wall of his cell, Allen intentionally

caused the sanitation crew to come into contact with his bodily fluid when they

cleaned the cell. Surely, Allen knew someone would be required to clean his

feces from the cell wall.




                                                                            A-0464-18T1
                                         9
      We also are satisfied Allen received all due process protections to which

he is entitled. Nothing in the record suggests that the hearing officer was

influenced by the corrections officers who charged Allen being present at the

hearing or that their presence was inappropriate. We note that the credibility of

the corrections officers was not called into question by Allen, who, in effect,

conceded the relevant facts. The hearing officer merely applied those facts to

the provisions of the disciplinary code to adjudicate Allen guilty of the two

infractions.

      Nor are we persuaded by Allen's argument that the sanctions he received

exceeded those authorized by DOC regulations. "The maximum administrative

segregation sanction for any prohibited act or acts resulting from a single

incident shall not exceed 365 days." N.J.A.C. 10A:4-5.1(a). Contrary to Allen's

arguments, the disciplinary infractions he committed arise not from a single

incident, but rather were distinct events on different days involving different

unauthorized behavior. We reach the same conclusion with respect to Allen's

argument the agency exceeded its authority by requiring the two sets of

sanctions be served consecutively.       According to N.J.S.A. 10A:4-5.1(c),

"[a]dministrative segregation sanctions for all charges received as the result of




                                                                         A-0464-18T1
                                      10
a single incident shall be served concurrently." Again, Allen's disciplinary

infractions did not arise from a single incident.

      We have reviewed Allen's remaining arguments and conclude they lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only our observation that the fact that Allen may have tested negative

for controlled dangerous substances around the time of the infractions is not

relevant. He was not adjudicated guilty of a charge of ingesting drugs.

      Affirmed.




                                                                          A-0464-18T1
                                       11
