                        NOT FOR PUBLICATION WITHOUT THE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-0716-15T4

CARLOS GUERRERO,

        Appellant,

v.

NEW JERSEY DEPARTMENT OF
CORRECTIONS,

     Respondent.
__________________________________

              Submitted July 25, 2017 – Decided August 8, 2017

              Before Judges Ostrer and Leone.

              On appeal from the New Jersey Department of
              Corrections.

              Carlos Guerrero, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Lisa A. Puglisi,
              Assistant Attorney General, of counsel; Nicole
              E. Adams, Deputy Attorney General, on the
              brief).

PER CURIAM

        Appellant Carlos Guerrero, at relevant times an inmate at

Bayside State Prison, appeals from a Department of Corrections

(Department) disciplinary decision.             A hearing officer found that
Guerrero committed prohibited act *.004, "fighting with another

person . . . ."    N.J.A.C. 10A:4-4.1(a) (2015).1    The assistant

superintendent upheld the decision after an administrative appeal.

We affirm.

     On August 18, 2015, a senior corrections officer observed an

inmate named Quintero punch Guerrero, knocking him down.    Guerrero

then stood up and began to fight Quintero.   The two tussled on the

floor, while officers repeatedly commanded them to stop fighting

and to separate.    They eventually complied, and both suffered

minor injuries.    The following day, Guerrero was served with

disciplinary charges, alleging he violated prohibited act *.004.2

     Guerrero waived his right to twenty-four hours' notice and

the disciplinary hearing took place the same day.    Assisted by a

counsel substitute, Guerrero stated he acted in self-defense,

although he acknowledged he pushed back against Quintero.    Relying

on the senior corrections officer's report, the hearing officer

concluded: "Insufficient evidence to support that inmate used self



1
  Under the regulation then in effect, the infraction was
punishable by up to a year of administrative segregation, as well
as the loss of up to 365 calendar days of commutation time.
N.J.A.C. 10A:4-5.1(a) (2015).
2
  He was also charged with prohibited act *.306, "conduct which
disrupts or interferes with the security or orderly running of the
correction facility," N.J.A.C. 10A:4-4.1(a) (2015), but that
charge was dismissed.

                                2                            A-0716-15T4
defense.    Inmate did not attempt to retreat.                Evidence supports

the charge."    The hearing officer concluded that Guerrero should

be held accountable and that violence among inmates should be

deterred.      Guerrero      received       180     days   of    administrative

segregation and 180 days loss of commutation time.

      In his administrative appeal, Guerrero conceded that the

"[e]vidence    presented    supports       finding    of   guilty      to   *.004."

However, he sought reduced sanctions based on the circumstance of

the   fight,   claiming    that   he    was       attacked.      The    assistant

superintendent upheld the decision and stated, "No leniency will

be afforded to you.       Uphold all sanctions."

      Guerrero raises the following points for our consideration:

            POINT I

            THE DECISION OF THE PRISON ADMINISTRATOR WAS
            NOT ADEQUATELY SUPPORTED BY SUBSTANTIAL
            CREDIBLE EVIDENCE IN THE ADMINISTRATIVE
            RECORD.   THE DECISION WAS AT ODDS WITH THE
            AUTHOR OF THE CHARGE AND THE APPELLANT'S SELF-
            DEFENSE   ARGUMENT   IN   VIOLATION   OF   THE
            APPELLANT'S RIGHT TO DUE PROCESS.

            POINT II

            THE HEARING WAS HELD IN VIOLATION OF NUMEROUS
            CODES OF TITLE 10A WHICH GOVERNS THE
            DISCIPLINARY PROCESS.

            POINT III

            THE APPELLANT SUBMITS THAT THE DISCIPLINARY
            HEARING OFFICER AND THE ADMINISTRATOR FAILED


                                       3                                    A-0716-15T4
          TO ADEQUATELY REVIEW OR CONSIDER THE RECORD
          IN DISMISSING APPELLANT'S PLEA FOR LENIENCY.

     Guerrero's appeal lacks merit.     He raises arguments that he

did not raise below, or he expressly waived.       See Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973).        As for his weight-of-

the-evidence argument, he conceded on administrative appeal that

the evidence supported the charge.       In any event, we discern

sufficient credible evidence in the record to support the finding

that Guerrero failed to retreat or to cease fighting when commanded

to do so; thus, self-defense was not available.          See Henry v.

Rahway State Prison, 81 N.J. 571, 579-80 (1980) (stating that the

appellate court shall disturb an administrative decision "only if

it is arbitrary, capricious or unreasonable or it is not supported

by substantial evidence in the record as a whole"); see also

N.J.A.C. 10A:4-9.13(f) (setting forth six prerequisites to a self-

defense   claim,   including   "[t]he   inmate    had   no   reasonable

opportunity or alternative to avoid the use of force, such as, by

retreat or alerting correctional facility staff").

     Guerrero was also not denied his procedural rights regarding

notice, since he expressly waived them before the hearing.       As for

the sanctions, Guerrero claimed below that he was entitled to

leniency because he was struck first.        Now, he argues he is

entitled to leniency "in light of [his] institutional record."


                                  4                             A-0716-15T4
Aside from the fact that he did not raise that point before the

assistant   superintendent,   Guerrero's   face   sheet   report   and

progress notes disclose twelve prior findings of disciplinary

violations, including multiple findings of guilt for fighting,

assault, threatening conduct, and refusing to obey orders.           We

recognize that neither the hearing officer nor the assistant

superintendent provided inmate-specific reasons for the selection

of the sanctions, which included the middle of the range for

administrative segregation and loss of commutation time.           Cf.

Mejia v. N.J. Dep't of Corrs., 446 N.J. Super. 369, 378-79 (App.

Div. 2016) (stating that a hearing officer should articulate the

reasons for imposing a particular sanction).      However, in view of

Guerrero's extensive disciplinary record, we conclude the sanction

was neither arbitrary, capricious, nor unreasonable.       See Henry,

supra, 81 N.J. at 580.

     Affirmed.




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