                                NOT FOR PUBLICATION WITHOUT THE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-3264-18T2

MARION JACOBS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted March 30, 2020 – Decided April 22, 2020

                   Before Judges Ostrer and Vernoia.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Marion Jacobs, appellant pro se.

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

PER CURIAM
      Appellant Marion Jacobs is incarcerated in New Jersey State Prison, and

he appeals from a New Jersey Department of Corrections (DOC) final agency

decision finding he committed prohibited act *.002, assaulting another person,

N.J.A.C. 10A:4-4.1(a)(1)(ii); and imposing the following sanctions: 181 days

administrative segregation, 180 days loss of commutation time, and 30 days loss

of phone privileges. We affirm.

      On February 2, 2019, another inmate at the prison was assigned to clean

Jacobs's cell. Dissatisfied with the manner in which the inmate was cleaning his

cell, Jacobs punched and bit the inmate. A corrections officer inquired about

the blood he observed on the inmate's shirt, and the inmate reported Jacobs

assaulted him. The inmate had a cut above his left eye, a bite mark on his chest,

and scratches on his arms and back.

      Officers searched Jacobs's cell and spoke with Jacobs. They observed

blood on Jacobs's shirt, but he did not exhibit or complain of any injuries. Jacobs

did not report to the officers or medical staff that the inmate struck him.

      The same day, Jacobs was charged with prohibited act *.004, fighting with

another person, N.J.A.C. 10A:4-4.1(a)(2)(ii). Jacobs pleaded not guilty and was

assigned a counsel substitute. A corrections officer obtained a video recording




                                                                              A-3264-18T2
                                        2
of the area outside Jacobs's cell at the time of the incident, and Jacobs reviewed

the recording prior to his hearing on the charge.

      The hearing officer considered the video recording, Jacobs's testimony,

the inmate's written statement, and the officers' and medical staff's reports.

Jacobs testified he acted in self-defense. He claimed the inmate "popped [him]

in the face" and "put [him] in a bear hug," and, in response, he punched and bit

the inmate.

      The hearing officer found the inmate's version of the incident credible and

Jacobs's testimony inconsistent with the video recording and other evidence.

The hearing officer determined there was no credible evidence showing Jacobs

and the inmate fought and found Jacobs's guilty of an amended charge of

committing prohibited act *.002, assaulting another person. The hearing officer

recommended     sanctions   including    administrative    segregation,   loss    of

commutation time, and loss of phone privileges.           Jacobs administratively

appealed.

      A DOC Associate Administrator determined the hearing officer's findings

were "based on substantial evidence and the sanction was proportionate in view

of [Jacobs's] prior disciplinary history," and upheld the hearing officer's

decision. This appeal followed.


                                                                           A-3264-18T2
                                        3
Jacobs presents the following arguments 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 OFFICER FAILED TO CONDUCT
      THE DISCIPLINARY HEARING IN ACCORDANCE
      WITH TITLE 10A, AND THEREBY VIOLATED
      [APPELLANT'S] RIGHT TO DUE PROCESS.

      POINT III

      THE   APPELLANT   SUBMITS   THAT THE
      DISCIPLINARY HEARING OFFICER AND THE
      ADMINISTRATOR FAILED TO ADEQUATELY
      REVIEW OR CONSIDER THE RECORD IN
      DISMISSING   APPELLANT'S   PLEA  FOR
      LENIENCY.

      POINT IV

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




                                                                 A-3264-18T2
                                4
      Our review of agency determinations is limited. See In re Stallworth, 208

N.J. 182, 194 (2011); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997);

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

will not reverse an administrative agency's decision unless it is "arbitrary,

capricious, or unreasonable, or [] not supported by substantial credible evidence

in the record as a whole." Stallworth, 208 N.J. at 194 (citation omitted); accord

Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). In

determining whether an agency action is arbitrary, capricious, or unreasonable,

we consider: (1) whether the agency followed the law; (2) whether substantial

evidence supports the findings; and (3) whether the agency "clearly erred" in

applying the "legislative policies to the facts." In re Carter, 191 N.J. 474, 482-

83 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).

      Although    we    afford   deference   to   an   administrative    agency's

determination, our review is not perfunctory and "our function is not to merely

rubberstamp an agency's decision." Figueroa, 414 N.J. Super. at 191. We must

"engage in a 'careful and principled consideration of the agency record and

findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div.

2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).




                                                                          A-3264-18T2
                                        5
        We carefully reviewed the record and find Jacobs's arguments are without

sufficient merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(1)(D) and (E).       We note only there is substantial credible evidence

supporting the DOC's determination Jacobs assaulted the inmate and did not act

in self-defense. The hearing officer considered all the evidence presented and

determined the inmate's version of the events was credible and Jacobs's version

was not. We owe particular deference to the agency's credibility determinations,

where its hearing officer had the opportunity to observe the inmate's testimony.

See State v. Locurto, 157 N.J. 463, 470-74 (1999). We therefore find no basis

to reject the hearing officer's factual finding Jacobs assaulted the inmate.

        We also reject Jacobs's assertion the DOC did not consider the evidence

he claims established he acted in self-defense under N.J.A.C. 10A:4-9.13(f).

The regulation requires an inmate who "raise[s] self-defense to a prohibited act

involving the use of force among inmates" present evidence establishing six

specified conditions.1 Jacobs's argument fails because, as noted, the evidence


1
    In pertinent part, N.J.A.C. 10A:4-9.13(f) provides:

        [An] inmate claiming self-defense shall be responsible for
        presenting supporting evidence that shall include each of the
        following conditions:



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                                          6
and testimony he presented in support of his self-defense claim was deemed not

credible.

      Affirmed.




      1. The inmate was not the initial aggressor;

      2. The inmate did not provoke the attacker;

      3. The use of force was not by mutual agreement;

      4. The use of force was used to defend against personal harm, not
      to defend property or honor;

      5. The inmate had no reasonable opportunity or alternative to avoid
      the use of force, such as, by retreat or alerting correctional facility
      staff; and

      6. Whether the force used by the inmate to respond to the attacker
      was reasonably necessary for self-defense and did not exceed the
      amount of force used against the inmate.


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