                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1658-18T1

MANUEL RODRIGUEZ,

         Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted November 7, 2019 - Decided December 5, 2019

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Manuel Rodriguez, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Nicholas A. Sullivan, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Manuel Rodriguez is confined to South Woods State Prison, serving a

lengthy prison term for attempted murder and other charges. He appeals from a

September 4, 2018 final decision of the New Jersey Department of Corrections

(DOC), finding him guilty of *.004, fighting with another person. N.J.A.C.

10A:4-4.1(a)(2)(i).1 As a result of the infraction, Green received 125 days of

administrative segregation, twenty days loss of telephone, and twenty days loss

of recreation privileges. We affirm the finding of the infraction, but vacate and

remand the sanction for the DOC to reconsider and supply reasons for the new

sanction imposed.

      On August 29, 2018, Rodriguez's cellmate was found with two "swollen

black eyes." Rodriguez was sent to the medical unit, where he was found to

have small lacerations on his arms, right shoulder, left side, left shin, and right

side of his back. At a hearing the following day, Rodriguez accepted the

assistance of a counsel substitute. Rodriguez claimed his wounds were old and

he did not know how his cellmate was injured. He rejected the opportunity to



1
  Rodriguez complains that his copy of the hearing officer's findings is illegible.
We were not able to read the copy sent to us by the DOC and requested a typed
version, that was ultimately provided. It goes without saying that we cannot
review a decision we cannot read. In the future we expect counsel for the DOC
to provide typed copies of these hand-written reports.


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                                        2
confront adverse witnesses or call his own witnesses. Counsel substitute denied

Rodriguez engaged in fighting while alternatively requesting an adjudication of

the lesser offense of .013.2

      Our role in reviewing a prison disciplinary decision is limited. Figueroa

v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). In general,

the decision must not be disturbed on appeal unless it was arbitrary, capricious,

or unreasonable, or lacked the support of "substantial credible evidence in the

record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579–80 (1980).

An adjudication of guilt of an infraction, however, must be supported by

"substantial evidence." N.J.A.C. 10A:4-9.15(a). "'Substantial evidence' means

'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)). "Where there is substantial evidence in

the record to support more than one regulatory conclusion, 'it is the agency's

choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307




2
   Prohibited act .013 is "unauthorized physical contact with any person, such
as, but not limited to, physical contact not initiated by a staff member, volunteer,
or visitor." N.J.A.C. 10A:4-4.1(a)(3)(ii).


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                                         3
(App. Div. 1990) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484,

491 (App. Div. 1985)).

      On appeal, Rodriguez argues the decision was contrary to the evidence.

He states for the first time on appeal that his cellmate was hit with a basketball.

Rodriguez reasserts that his own injuries were old. Rodriguez also claims that

his counsel substitute was ineffective by suggesting he may have committed a

lesser offense.

      The hearing officer (HO) found:

            Inmate stated he didn't know what happened [to] his
            cell mate . . . . [He] did not leave his cell for [two] days
            [and] when he was discovered, he had black eyes.
            Inmate Rodriguez had minor scrap[e]s [and] scratches
            to his body. Both inmates gave different accounts of
            the incident [and] both were found not credible. Based
            on medical reports [and] investigation[,] [c]harge is
            upheld.

      We reject Rodriguez's due process arguments. N.J.A.C. 10A:4-9.15(b)

states: "Evidence relied upon in making a determination shall be specified on

the Adjudication of Disciplinary Report form." Pursuant to Avant v. Clifford,

the DOC complied with its obligations.         Rodriguez received notice of the

charges, and was afforded assistance of a counsel substitute at the hearing. 67

N.J. 496, 523, 536 (1975). He was able to see the evidence the HO relied upon



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                                         4
and the report setting forth the statements and reports relied upon to adjudicate

the infraction.

      Rodriguez's argument that the decision was arbitrary, capricious, or

unreasonable is unsupported by the record. Two men shared a cell. They both

incurred injuries consistent with a fight and offered no credible contrary

explanation. Rodriguez's basketball injury explanation was not offered at the

hearing and therefore we do not consider it. Nieder v. Royal Indem. Ins. Co.,

62 N.J. 229, 234 (1973).

      The HO, however, did not provide an adequate explanation for the

sanctions imposed on Rodriguez. The HO stated: "Inmate needs to get back on

track. Inmate needs to find appropriate ways to dealing [sic] with issues. Inmate

warned about R/R.[3]"      Although Rodriguez does not explicitly raise the

adequacy of the reasons given for the sanction as a basis for reversal on appeal

before us, the DOC noted in its final determination that his "plea for leniency is

denied."

      The 125 days administrative segregation and other sanctions imposed

were not the minimum permitted for such an offense. N.J.A.C. 10A:4-5.1(g).


3
  We do not know the meaning of "R/R," but after inspecting the copy of the
hand-written original provided, we believe "R/B" was hand-written, meaning,
perhaps, "repeat behavior."
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                                        5
The DOC offered no explanation of how the sanctions were proportionate to the

offense and the offender. The DOC must provide an inmate with individualized

reasons for the specific sanctions imposed. Malacow v. N.J. Dep't of Corr., 457

N.J. Super. 87, 94–98 (App. Div. 2018); Mejia v. N.J. Dep't of Corr., 446 N.J.

Super. 369, 378–79 (App. Div. 2016). The DOC must articulate the factors

considered in the imposition of sanctions so that we may perform our review of

"whether a sanction is imposed for permissible reasons." Id. at 379; see also

N.J.A.C. 10A:4-9.17(a) (providing factors to relevant individualized sanctions).

For these reasons, we reverse the sanctions and remand for a re-imposition of

sanctions with valid inmate- and offense-specific reasons.

      Affirmed in part, vacated and remanded in part.        We do not retain

jurisdiction.




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