                                NOT FOR PUBLICATION WITHOUT THE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-3915-18T3

MICHAEL WILLERSON,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Respondent.


                   Submitted May 27, 2020 – Decided June 9, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Michael Willerson, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Donna Sue Arons, Assistant Attorney
                   General, of counsel; Beonica McClanahan, Deputy
                   Attorney General, on the brief).

PER CURIAM
       Michael Willerson appeals a final decision of the Department of

Corrections, finding him guilty of prohibited act *.004, fighting with another

person, N.J.A.C. 10A:4-4.1(a)(2)(i), and imposing a 120-day administrative

segregation sanction, 60-day loss of commutation time, and 10-day loss of

recreational privileges. On appeal, Willerson argues the guilty finding was not

supported by substantial evidence and the sanctions imposed were excessive.

We disagree and affirm.

       Willerson is an inmate in the State's correctional system. Shortly after

7 a.m. on April 11, 2019, while incarcerated at Southwoods State Prison,

Willerson and another inmate engaged in a fistfight in the dayroom. No one

reported the fight to the authorities. Four days later, while reviewing the weekly

footage of the dayroom's video recording, Sergeant Jackson noticed the physical

altercation and identified the participants as Willerson and V.P.1 Both inmates

told Jackson "they were fighting to settle a dispute."       The following day,

Willerson was served with the charge. Willerson pled not guilty, his request for

counsel substitute was granted, and he was afforded a hearing.

       Counsel substitute viewed the video of the incident, but Willerson

declined the opportunity to do so. Willerson also declined the opportunity to


1
    We use initials in conformance with the Department's responding brief.
                                                                          A-3915-18T3
                                        2
cross-examine the Department's witnesses. Claiming V.P. attacked him and he

acted in self-defense, Willerson called two witnesses on his behalf, who

apparently were present in the dayroom at the time of the incident. But neither

witness corroborated his account. One witness said he "didn't see anything" and

the other stated he "was looking at T.V." at the time of the incident. Counsel

substitute requested leniency.

      Following her review of the evidence, including the video recording, the

hearing officer rejected Willerson's self-defense claim and found Willerson

guilty of fighting. In reaching her decision, the hearing officer noted Willerson

"may not have been the aggressor, but he threw the first punch. He never tried

to retreat or call for assistance." In assessing the sanction, the hearing officer

considered Willerson's absence of mental health problems and the need to take

seriously violent acts within the prison to "promote a safe and secure facility."

Thereafter, the assistant superintendent upheld the hearing officer's decision,

finding the Department "compli[ed] with procedural safeguards" and the

sanction appropriate. This appeal followed.

      On appeal, Willerson raises four points for our consideration:

                                    POINT I

            THE HEARING OFFICER ERRED IN FINDING
            [WILLERSON] GUILTY BECAUSE [WILLERSON]

                                                                          A-3915-18T3
                                        3
      USED ONLY FORCE NECESSARY TO THWART
      ATTACK.

                              POINT II

      THE COURTLINE HEARING OFFICER ERRED IN
      NOT APPLYING THE SELF-DEFENSE FACTORS
      AS NOTED IN DECAMP V. [N.J. DEP'T. OF CORR.,
      386 N.J. SUPER. 631 (2006)].
      (Not Raised Below)

                             POINT III

      THE HEARING OFFICER ERRED AND VIOLATED
      [WILLERSON']S RIGHT TO DUE PROCESS BY
      VIOLATING HIS RIGHT TO EQUAL PROTECTION
      BY SANCTIONING [WILLERSON] TO THE
      MAXIMUM AND GIVING [WILLERSON] THE
      SAME    ADMINISTRATIVE     SEGREGATION
      SENTENCE AS [V.P.,] WHO INITIATED THE
      ATTACK.

                             POINT IV

      THE HEARING OFFICER ERRED IN THE FINDING
      OF GUILTY BECAUSE [WILLERSON']S DU[E]
      PROCESS WAS VIOLATED WHEN [WILLERSON]
      WAS CHARGED (4) FOUR DAYS LATER AND
      ATTACKER ADMITTED HE INITIATED THE
      ALTERCATION AND ADMITTED GUILT.
      (Not Raised Below)


In his reply brief, Willerson raises three additional points:


                              POINT I


                                                                A-3915-18T3
                                  4
            [WILLERSON] DISPUTES [THE DEPARTMENT']S
            BALD ASSERTION THAT THE INCIDENT WAS
            DUE TO A DISPUTE.

                                    POINT II

            THE   [DEPARTMENT]'S    CONTRADICTORY
            ASSESSMENT OF THE FACTS SUPPORTING AND
            NON-SUPPORT OF SELF-DEFENSE [SIC] SHOULD
            WARRANT A REVERSAL OF [WILLERSON']S
            SANCTION.

                                   POINT III

            [THE DEPARTMENT']S CLAIMS [WILLERSON]
            COULD HAVE RETREATED VIOLATES THE
            STANDARD FOR SELF-DEFENSE.

      Our well-established scope of review of an agency decision is limited. In

re Stallworth, 208 N.J. 182, 194 (2011); see also Figueroa v. N.J. Dep't of Corr.,

414 N.J. Super. 186, 190 (App. Div. 2010). Reviewing courts presume the

validity of the "administrative agency's exercise of its statutorily delegated

responsibilities." Lavezzi v. State, 219 N.J. 163, 171 (2014). "We defer to an

agency decision and do not reverse unless it is arbitrary, capricious[,] or

unreasonable or not supported by substantial credible evidence in the record."

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

also Avant v. Clifford, 67 N.J. 496, 530 (1975).




                                                                          A-3915-18T3
                                        5
      When reviewing a final determination of the DOC in a prisoner

disciplinary matter, we consider whether there is substantial evidence the inmate

has committed the prohibited act and whether, in making its decision, the DOC

followed the regulations adopted to afford inmates procedural due process. See

McDonald v. Pinchak, 139 N.J. 188, 194-98 (1995). We "may not substitute

[our] own judgment for the agency's, even though [we] might have reached a

different result.'" In re Carter, 191 N.J. 474, 483 (2007) (internal quotation

marks omitted).    "This is particularly true when the issue under review is

directed to the agency's special 'expertise and superior knowledge of a particular

field.'" Stallworth, 208 N.J. at 195 (quoting In re Herrmann, 192 N.J. 19, 28

(2007)). But, an agency's "interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference."

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      Willerson argues he was defending himself against an unprovoked attack

from inmate V.P. He claims N.J.A.C. 10A:4-9.13(f) allows an inmate to raise

self-defense in circumstances such as here. N.J.A.C. 10A:4-9.13(f), which

superseded our decision in DeCamp v. New Jersey Department of Corrections,




                                                                          A-3915-18T3
                                        6
386 N.J. Super. 631 (App. Div. 2006),2 on which Willerson also relies, provides,

in relevant part:

             The Disciplinary Hearing Officer or Adjustment
             Committee will allow an inmate to raise self-defense to
             a prohibited act involving the use of force among
             inmates; however, the inmate claiming self-defense
             shall be responsible for presenting supporting evidence
             that shall include each of the following conditions:

             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.

      Contrary to Willerson's argument on appeal, the hearing officer applied

these factors. Although she acknowledged Willerson "may not have been the



2
   After we issued the DeCamp decision, the Department adopted N.J.A.C.
10A:4-9.13(f), providing a self-defense claim in a disciplinary proceeding and
placing the burden of proof on the inmate.
                                                                          A-3915-18T3
                                         7
[initial] aggressor" (factor one), the hearing officer found Willerson offered no

evidence that he could not "retreat or alert[] correctional facility staff" (factor

five), other than his bare assertion that he "was defending himself and was

attacked." Indeed, Willerson's witnesses denied they observed the fight let alone

that Willerson was unable to retreat or call for help.

      Further, by finding Willerson "threw the first punch," the hearing officer

implicitly found Willerson failed to satisfy the sixth factor, having "exceed[ed]

the amount of force used against [him]." We note the record is also devoid of

any evidence that Willerson demonstrated the remaining factors. Accordingly,

the record does not support Willerson's claim of self-defense, which was

properly rejected by the hearing officer.

      Next, we find nothing either manifestly excessive or unduly punitive in

the sanctions imposed, which were authorized and warranted. See N.J.A.C.

10A:4-4.1 and N.J.A.C. 10A:4-5.1. Under those regulations, the Department

was permitted to seek: "no less than 91 days and no more than 180 days of

administrative segregation," N.J.A.C. 10A:4-5.1(g); up to 365 days of

commutation time, N.J.A.C. 10A:4-5.1(g)(2); and up to 30 days loss of




                                                                           A-3915-18T3
                                        8
privileges N.J.A.C. 10A:4-5.1(g)(1). The sanctions imposed here were well

within the prescribed ranges, and were the same as those imposed on V.P. 3

        Contrary to Willerson's argument, the sanctions also were imposed fairly

and in accordance with the principles mandated under N.J.A.C. 10A:31-16.14

and, as such, we find no merit in Willerson's argument that his sanctions should

have been less severe than those imposed on V.P, who initiated the "attack." As

stated, Willerson failed to prove he acted in self-defense or otherwise acted less

culpably than V.P. Recognizing "[p]rohibited acts preceded by an asterisk (*)

are considered the most serious and result in the most severe sanctions ,"


3
  V.P.'s adjudication is not contained in the record on appeal, but the parties do
not dispute that both inmates received the same sanctions.
4
    N.J.A.C. 10A:31-16.1 provides, in pertinent part:

              (a) Equitable and consistent inmate discipline shall be
              employed to ensure the maintenance of security and the
              orderly operation of all adult county correctional
              facilities.

              (b) Rules, upon which inmate discipline is based, must
              be reasonable and evenly applied, and the action taken
              to determine an alleged infraction must be based on
              findings of fact.

              (c) The sanction(s) for infractions shall not be imposed
              in any manner that violates the inmate's civil rights. The
              sanction(s) must be related to the infraction, and must
              be fairly applied to all inmates. . . .
                                                                           A-3915-18T3
                                          9
N.J.A.C. 10A:4-4.1(a), we discern no basis to intercede. See Blyther v. N.J.

Dep't of Corr., 322 N.J. Super. 56, 67 (App. Div. 1999) (suggesting courts

should not involve themselves in the day-to-day management of prisons).

         For the first time on appeal, Willerson claims his due process rights were

violated because he was served with the charges "ninety-six hours after the

incident and was adjudicated fifty . . . hours later." Because Willerson failed to

raise it before the hearing officer, we could decline to consider this issue.

"Generally, an appellate court will not consider issues, even constitutional ones,

which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).

Nonetheless, we have reviewed Willerson's arguments and conclude they lack

merit.

         Willerson seemingly argues the Department failed to serve the

disciplinary report on him within the forty-eight-hour period mandated under

N.J.A.C. 10A:4-9.2. But the fight remained undetected for four days until

Jackson viewed the video. Willerson was served the following day and afforded

a hearing within two days. Counsel substitute signed the hearing officer's

adjudication report, indicating it accurately reflected what occurred at the

hearing. Notably, the report cites no procedural deficiencies. Instead, Willerson

was afforded counsel substitute, and given the opportunity to provide a


                                                                           A-3915-18T3
                                         10
statement, call witnesses, cross-examine the Department's witnesses, and review

the video recording before an impartial tribunal. We perceive no constitutional

infringements in this procedure.

      We conclude there was substantial evidence in the record to support the

agency's decision based on the reports and evidence submitted at the hearing .

The Department's decision was not arbitrary, capricious or unreasonable.

      To the extent not specifically addressed, Willerson's remaining arguments

lack sufficient merit to warrant discussion in this written opinion. R. 2:11-

3(e)(1)(E).

      Affirmed.




                                                                       A-3915-18T3
                                     11
