                                NOT FOR PUBLICATION WITHOUT THE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-4989-18T1

ALLEN JONES,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                   Submitted May 11, 2020 – Decided June 12, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Allen Jones, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Chanell Branch, Deputy Attorney General,
                   on the brief).

PER CURIAM
      Appellant Allen Jones, an inmate at Northern State Prison, appeals from

respondent the New Jersey Department of Corrections (DOC) final agency

decision finding he committed prohibited act *.004, fighting with another

person. See N.J.A.C. 10A:4-4.1(a)(2)(i). The DOC imposed sanctions of one

hundred days administrative segregation, one hundred days loss of commutation

time and one hundred days loss of recreation privileges. On appeal, Jones

contends that the DOC's decision was contrary to "the sufficient credible

evidence present in the record," and its factual conclusions were "so wide off

the mark as to be manifestly mistaken giving rise to a sense of wrongness, in

violation of due process, statute, and regulation." We affirm.

      The charge against Jones arose from an incident that occurred on May 13,

2019, when he and another inmate engaged in an argument. According to Jones,

the argument started when the other inmate accused Jones of "talking about

him." That other inmate was joined by another inmate who placed his hands-on

Jones, which led to Jones and the other inmate engaging in a spitting match. The

other inmate then initiated the first strike against Jones and a physical altercation

ensued. That led to other inmates getting involved and according to Jones he

was "forced to defend himself."




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      As the fight escalated, other prisoners tried to prevent the two from

fighting without success. Corrections officers on the scene ordered the inmates

to cease fighting and when they ignored those directions, a "Code 33" was

initiated that caused other officers to immediately appear at the scene and assist

in breaking up of the fight and restraining the participants.

      Based on these events, prison officials charged Jones and the other two

inmates with committing the prohibited act. After the charge was drawn against

Jones, he was served with it on the same day. After several postponements of

the scheduled hearing, the matter was finally heard on May 29, 2019, before an

institutional hearing officer.

      At the hearing, Jones was provided with the benefit of counsel substitute.

Jones pled not guilty to the charge and explained in his defense that he "was

playing chess, two guys came on me for no reason. I had no choice but to fight

back." In addition, counsel substitute argued that the other inmates came at

Jones and he had no choice but to react.

      Although offered the opportunity to call witnesses, Jones did not ask for

any to appear.     Significantly, at the hearing, Jones viewed with counsel

substitute and the hearing officer a video from the prison's surveillance cameras

that captured the entire incident.


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                                        3
      At the conclusion of the hearing, the hearing officer determined that Jones

was guilty of the charge. According to the hearing officer, Jones's assertion of

self-defense was belied by the video footage. The hearing officer thereafter

imposed sanctions.

      Jones sought an administrative appeal from the hearing officer's

determination. In his appeal, Jones asserted that the video footage depicted that

he was defending himself and he alleged that additional footage was withheld

that would have confirmed what happened. According to Jones, the hearing

officer knew that he was not the initial aggressor. On June 7, 2019, the DOC

upheld the hearing officer's findings and sanctions. This appeal followed.

      Our review of an agency's determinations is limited. See In re Stallworth,

208 N.J. 182, 194 (2011). We will not reverse an administrative agency 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 (alteration in original). When 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




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                                        4
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 decision." Figueroa v. N.J. Dep't of Corr., 414 N.J.

Super. 186, 191 (App. Div. 2010). 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)). However, in our consideration, where

video tape evidence is involved, we will defer to the agency's determination, as

the fact finder, and not substitute our judgment for the agency's, unless its

"factual findings are so clearly mistaken—so wide of the mark—that the

interests of justice demand intervention."   State v. S.S., 229 N.J. 360, 381

(2017); see also State v. McNeil-Thomas, 238 N.J. 256, 272 (2019).

      We carefully reviewed the record and conclude Jones's arguments are

without sufficient merit to warrant further discussion in a written opinion as

there is "substantial" credible evidence, N.J.A.C. 10A:4-9.15(a), supporting the

DOC's determination he committed the charged offense. R. 2:11-3(e)(1)(D).

We note only that the hearing officer considered all the evidence presented and


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                                       5
determined that Jones's version of the events was not credible. We therefore

find no basis to reject the DOC's acceptance of the hearing officer's factual

finding that Jones engaged in impermissible fighting.

      We reject Jones's contention that the DOC did not consider the evidence

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

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

use of force among inmates" to present evidence establishing six specific

conditions. The regulation provides, in part, the following:

            [An] 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.


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                                        6
              [N.J.A.C. 10A:4-9.13(f) (emphasis added).]

      Even when an inmate presents evidence of self-defense, his contention is

subject to further scrutiny. The hearing officer must then consider whether "any

other condition or evidence that would cause the force that was used by the

inmate to be deemed unreasonable, such as, but not limited to, any use of force

that would interfere with or otherwise undermine the safe, secure or orderly

operation of the correctional facility." N.J.A.C. 10A:4-9.13(g).

      Here, the evidence Jones presented in support of his self-defense claim

was deemed not credible, determined by the hearing officer to be belied by the

video footage, and was insufficient under the regulation.             Under the

circumstances here, where Jones only argued that the video showed he did not

initiate the fight, his contention alone does not satisfy his obligation under the

regulation.

      Affirmed.




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