               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION


                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1587-17T3

ANTHONY MALACOW,

     Appellant,                         APPROVED FOR PUBLICATION

v.                                               November 28, 2018

                                            APPELLATE DIVISION
NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.


           Argued October 24, 2018 — Decided November 28, 2018

           Before Judges Koblitz, Ostrer and Currier.

           On appeal from the New Jersey Department of
           Corrections.

           Anthony Malacow, appellant, argued the cause pro se.

           Tasha M. Bradt, Deputy Attorney General, argued the
           cause for respondent (Gurbir S. Grewal, Attorney
           General, attorney; Melissa Dutton Schaffer, Assistant
           Attorney General, of counsel; Tasha M. Bradt and
           Suzanne M. Davies, Deputy Attorney General, on the
           briefs).

     The opinion of the court was delivered by

KOBLITZ, P.J.A.D.
      We remand to the Department of Corrections (DOC) for reconsideration

and the articulation of appropriate reasons for the sanctions consistent with

N.J.A.C. 10A:4-9.17(a) and Mejia v. New Jersey Department of Corrections,

446 N.J. Super. 369, 378-79 (App. Div. 2016). Inmate Anthony Malacow

appeals from the DOC finding that he was guilty of prohibited act *.259, when

he failed to comply with an order to submit a thirty-milliliter urine sample within

two hours. Malacow argues that he provided a urine sample of the requisite

amount, his due process rights were violated before and during his hearing, the

hearing officer (HO) ignored potential video evidence, and his counsel substitute

was ineffective. Malacow's concerns with regard to a fair hearing and the

effectiveness of his counsel substitute are without sufficient merit to require

further discussion in a written opinion. R. 2:11-3(e)(1)(E). We reject these

meritless claims, but remand for reconsideration of sanctions, and suggest the

DOC amend its regulations so that particularized reasons for sanctions are

provided in future disciplinary matters.

      The HO found Malacow guilty and sanctioned him to fifteen days of loss

of recreational privileges, ninety-one days in administrative segregation, loss of

ninety days commutation time, 365 days of urine monitoring and permanent loss




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of contact visits. She also referred him for a mental health follow-up. The

findings and sanctions were reviewed and affirmed by the DOC.

      Malacow is serving a six-year sentence for burglary and resisting arrest.

On November 19, 2017, at 8:45 a.m., while incarcerated in the Southern State

Correctional Facility, Malacow was ordered to submit a urine sample after

officers discovered "a quart sandwich bag [one-fourth] full of suspected tobacco,

a brillo pad and brillo pad wires with burnt ends, and [three] batteries with the

wrapping peeled off" in his wall locker. At 10:45 a.m., he had failed to provide

a thirty-milliliter urine sample. Malacow was initially charged with: (1) *.201,

"[p]ossession or introduction of an explosive, incendiary device or

ammunition"; (2) .554, "[p]ossession of tobacco products or matches where

prohibited"; and (3) *.259, "failure to comply with an order to submit a specimen

for prohibited substance testing." N.J.A.C. 10A:3-5.11(f) and (i) require an

inmate to provide a thirty-milliliter urine sample within a two-hour period or

face a disciplinary charge.

      On November 22, 2017, a disciplinary hearing began, but was postponed

so Malacow could receive a psychological evaluation, as required by a federal

settlement in 1999. Mejia, 446 N.J. Super. at 374-75 (citing D.M. v. Terhune,

67 F. Supp. 2d 401, 403-05 (D.N.J. 1999)). The evaluation revealed that while


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Malacow was suffering from a mental illness, it did not "contribute to [his]

behavior manifesting itself in the alleged infraction"; and Malacow was

responsible for his actions. The evaluation also concluded that Malacow was

"mentally competent to defend [himself] and understand the [disciplinary]

proceeding," and placement in detention or administrative segregation would

not likely "lead to an exacerbation of mental health problems . . . ."

      Five days later, the disciplinary hearing resumed. Malacow was granted

a counsel substitute.    Although given the opportunity, he did not present

witnesses, nor cross-examine any adverse witnesses. The HO found Malacow

guilty of *.259, failure to submit to testing.

      The assistant superintendent provided the following explanation to

Malacow for affirming the HO's determination: "There was no misinterpretation

of the circumstances in your charge. Your charge and sanction are commiserate

[sic] with the [i]ncident and within the guidelines as described in [N.J.A.C.]

10A. Leniency was afforded with the combination of [b]oth charges. No

[m]odification."

      Our role in reviewing an administrative agency's decision is limited.

Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9

(2009). We "do[] not substitute [our] judgment of the facts for that of an


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                                         4
administrative agency." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587

(2001). Instead, we will "defer to matters that lie within the special competence

of an administrative tribunal." Balagun v. Dep't of Corr., 361 N.J. Super 199,

202 (2003). We will not, however, "perfunctorily review and rubber stamp the

agency's decision." Id. at 203. "Instead, we insist that the agency disclose its

reasons for any decision, even those based upon expertise, so that a proper ,

searching, and careful review by this court may be undertaken." Ibid.

      "Ordinarily, [we] will reverse the decision of [an] administrative agency

only if it is arbitrary, capricious or unreasonable or it is not supported by

substantial credible evidence in the record as a whole." Mejia, 446 N.J. Super.

at 376 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

      Our Supreme Court has held that inmates are afforded due process rights

in disciplinary proceedings. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975).

An inmate facing disciplinary action must be provided with the following

limited protections: (1) written notice of the charges, provided at least twenty-

four hours before the hearing, so the inmate can prepare a defense; (2) an

impartial tribunal, consisting of either one HO or a three-member adjustment

committee; (3) the assistance of a counsel substitute if the inmate is illiterate or

unable to collect or present evidence; (4) the right to call witnesses and present


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documentary evidence, provided it is not "unduly hazardous to institutional

safety or correctional goals"; (5) the right to confront and cross-examine adverse

witnesses; and (6), quoting the Standards on the Inmate Discipline Program

section 254.283, "a written statement of the fact-findings is given to the inmate

by the [HO] or by the adjustment committee chairman as to the evidence relied

upon, decision and the reason for the disciplinary action taken unless such

disclosure would jeopardize institutional security." Id. at 525-33.

      Reviewing the six Avant factors, other than the lack of a valid statement

of reasons for the sanctions, Malacow's due process rights were not violated.

First, he signed and dated the entry on the adjudication of disciplinary charge

form which stated that he waived the twenty-four hours' notice requirement.

Second, Malacow's case was heard before a HO. Third, Malacow requested and

was granted a counsel substitute. Fourth, Malacow was given the opportunity

to call witnesses. Fifth, he was given the opportunity to cross-examine any

adverse witnesses. Finally, Malacow was given a written statement of the

evidence the HO relied upon, and the HO's decision.

      The reasons for the sanctions imposed, however, were lacking. The HO

provided the following reason for imposing these sanctions: "[Inmate] was

ordered to void and was unable to provide a sample within the allotted time."


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Of course, an inmate will not be sanctioned unless he or she committed an

infraction. That does not explain why these particular sanctions were imposed

instead of different permissible sanctions.

      Although not initially raised by Malacow in his pro se appellate brief, we

asked for supplemental briefing on the lack of articulation of valid reasons for

the sanctions. The DOC argued that because the sanctions were relatively

lenient, no reasons were required. The DOC asked us to remand the matter if

we disagreed with that argument.

      Prohibited act *.259 is a Category B offense.           N.J.A.C. 10A:4-

4.1(a)(2)(xxvi). Conviction will:

            result in a sanction of no less than [ninety-one] days
            and no more than 180 days of administrative
            segregation per incident and one or more of the
            sanctions listed at N.J.A.C. 10A:4-5.1(g), unless a
            medical or mental health professional determines that
            the inmate is not appropriate for administrative
            segregation placement.

            [N.J.A.C. 10A:4-4.1(a)(2).]

      An inmate found guilty of a Category B offense, in addition to receiving

administrative segregation of ninety-one to 180 days, "shall receive one or more

of the following sanctions:"

            1. Loss of one or more correctional facility privileges
            up to 30 calendar days;

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            2. Loss of commutation time up to 365 calendar days,
            subject to confirmation by the Administrator;

            3. Loss of furlough privileges for up to two months;

            4. Up to two weeks confinement to room or housing
            area;

            5. Any sanction prescribed for On-The-Spot Correction
            (see N.J.A.C. 10A:4-7);

            6. Confiscation; and/or

            7. Up to 14 hours extra duty, to be performed within a
            maximum of two weeks.

            [N.J.A.C. 10A:4-5.1(g).]

If "a medical or mental health professional determines that [an] inmate is not

appropriate for administrative segregation placement," then that inmate will

receive one or more of the above seven sanctions without administrative

segregation. N.J.A.C. 10A:4-5.1(g).

      In addition, the State's prisons have a zero tolerance drug and alcohol

policy. N.J.A.C. 10A:1-2.2. Therefore, if found guilty of any drug or alcohol-

related prohibited act, an inmate "shall have their contact visit privileges

terminated while housed in New Jersey State prisons and correctional facilities

. . . ." Ibid. A *.259 prohibited act is one that calls for termination of contact

visit privileges. N.J.A.C. 10A:4-5.1(o)(6). Malacow was therefore subject to


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mandatory "permanent" loss of contact visits under the zero tolerance drug and

alcohol policy.   N.J.A.C. 10A:1-2.2.       The regulations, however, allow an

application for restoration of visits after one year. N.J.A.C. 10A:18-6.20.

      Malacow's ninety-one days of administrative segregation was the

minimum amount of time required under N.J.A.C. 10A:4-4.1(a)(2). Before the

administrative segregation was imposed, a psychologist found after evaluation

that placement in detention or administrative segregation would not "likely lead

to an exacerbation of mental health problems within [twenty-one] days that will

significantly reduce [Malacow's] ability to adapt to that setting." Because he

was placed in administrative segregation, which is essentially solitary

confinement,1 for ninety-one days rather than twenty-one days, the evaluation

was arguably of limited utility. 2 As we stated in Mejia, a DOC August 14, 2015

"Request for Rule Exemption" pointed out the negative impact administrative



1
   In Mejia, the DOC argued that administrative segregation was not solitary
confinement simply because "inmates have access to several services, including
'five hours of recreation outside of [their] cell each week' and regular reviews
by the mental health staff through the locked cell door." Mejia, 446 N.J. Super.
at 372 n.4.
2
  The arbitrary nature of this evaluation concerning Malacow's ability to serve
twenty-one days in administrative segregation, when he is later given a longer
period of time, has not been raised or briefed. We therefore decline to address
the issue.
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segregation may have on the mentally ill. Mejia, 446 N.J. Super. at 375.

"Studies have shown that isolation, under certain circumstances, exacerbates

mental health deterioration." Ibid.

      The fifteen days' loss of recreational privileges was within the maximum

of thirty days' "[l]oss of one or more correctional facility privileges" under

N.J.A.C. 10A:4-5.1(g)(1), but it was not a mandated minimum sanction. The

loss of ninety days commutation time was also within the 365-day maximum

amount of time that could have been imposed. See N.J.A.C. 10A:4-5.1(g)(2).

Loss of ninety days of commutation time is a severe consequence because it

delays Malacow's parole eligibility by ninety days. See N.J.S.A. 30:4-123.51(a).

      N.J.A.C. 10A:3-5.10(b)(10) provides that an inmate shall be tested

"[w]hen a Disciplinary [HO]/Adjustment Committee orders testing as part of a

sanction for a prohibited substance related prohibited act." Imposing a sanction

of 365 days of urine monitoring upon Malacow was permissible.

      If the sanctions imposed were the minimum required, and the inmate had

no mental health issues that might negate one of the otherwise mandatory

penalties, we would agree that reasons for the sanctions were not necessary. In

all other situations, an inmate is entitled to individualized reasons for the




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specific sanctions imposed. See Mejia, 446 N.J. Super. at 378-79; Avant, 67

N.J. at 533.

      Under N.J.A.C. 10A:4-9.17(a)(1) to (5), a sanction

               may be individualized by considering such factors as
               the:

               1. Offender's past history of correctional facility
               adjustment;

               2.   Setting and circumstances of the prohibited
               behavior;

               3.   Involved inmate's account;

               4.   Correctional goals set for the inmate; and

               5.   The inmate's history of, or the presence of,
               mental illness.

Thus, under the regulations, the use of these or other sanctioning factors, is left

"entirely to the discretion of the [HO]." Mejia, 446 N.J. Super. at 378. Pursuant

to our 2016 decision in Mejia, however, the HO must do more than simply

impose a sanction "within the maximum limits set forth in the Administrative

Code." Id. at 379. Without an articulation of sanctioning factors, "we have no

way to review whether a sanction is imposed for permissible reasons and is

located at an appropriate point within the allowable range." Ibid. We urge the




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DOC to amend the regulations to require a HO to articulate individualized

sanctioning factors.

      An agency that performs a quasi-judicial function must engage in fact-

finding and "provide notice of those facts to all interested parties" to ensure that

the agency acted within the scope of its authority and facilitate appellate review.

In re Issuance of Permit by Dep't of Envtl. Prot., 120 N.J. 164, 172-73 (1990).

We will then defer to an agency's determination when we have "confidence that

there has been a careful consideration of the facts in issue and appropriate

findings addressing the critical issues in dispute." Bailey v. Bd. Review, 339

N.J. Super. 29, 33 (App. Div. 2001).

      Because the only expressed reason for the sanctions imposed was

Malacow's guilt of the violation, we have no way of determining whether the

HO considered the factors set forth in the administrative code, such as

Malacow's mental health issues, or any other factors.

      We therefore remand for reconsideration of the sanctions imposed. After

new sanctions are imposed, appropriate reasons must be articulated. We do not

retain jurisdiction.




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