                                NOT FOR PUBLICATION WITHOUT THE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-5593-17T4

MAURICE ANDERSON,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted May 6, 2020 – Decided May 20, 2020

                   Before Judges Fuentes and Mayer.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Maurice Anderson, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane Schuster, Assistant Attorney General,
                   of counsel; Tasha Marie Bradt, Deputy Attorney
                   General, on the brief).

PER CURIAM
      Appellant Maurice Anderson, currently an inmate at South Woods State

Prison, appeals from a New Jersey Department of Corrections (DOC) final

agency decision affirming a finding of guilty for the following prohibited acts:

*.002, assaulting any person; *.708, refusal to submit to a search; and *.306,

conduct which disrupts or interferes with the security or orderly running of the

correctional facility. He also appeals from the resulting sanctions imposed. We

affirm.

      The disciplinary charges against Anderson arose when an officer was

frisking inmates entering the prison's recreation yard.    The officer noticed

Anderson attempted to enter the yard without being searched. When the officer

asked Anderson to tuck in his shirt to be frisked, Anderson refused. Anderson

told the officer, "I don't tuck my shirt in for anyone" and stated "you're not

putting your hands on me playa." Anderson then spun around and struck the

officer in the face with a closed fist.

      Several officers attempted to subdue Anderson, which caused him to

resist. The officers used pepper spray, but Anderson continued to struggle. An

emergency response team within the correctional facility was called to take

control of the situation and restore order. Anderson continued to fight the

officers by kicking and pushing himself off the floor.      The response team


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eventually handcuffed Anderson and took him to the infirmary for a medical

evaluation.

      Anderson was issued disciplinary charges for prohibited acts *.002, *.708,

and *.306. After the charges were served, the DOC staff investigated and

referred the matter to a hearing officer.

      The disciplinary hearing was postponed several times to accommodate

Anderson's request to confront the officers involved in the incident and have

them submit to a polygraph. Anderson pleaded not guilty to all three charges

and received the assistance of counsel substitute prior to the hearing.

      At the hearing on May 14, 2018, Anderson and his counsel substitute were

afforded an opportunity to make a statement. Anderson's counsel claimed the

officer provoked Anderson by uttering a racial slur and therefore Anderson's

reaction was justified. Anderson provided a written summation to the hearing

officer in lieu of making a personal statement. In addition, Anderson was

permitted to offer witness statements on his behalf, but he declined to do so.

Anderson confronted and cross-examined adverse witnesses through written

questions provided to the hearing officer. Anderson's request for a polygraph

examination of the officers involved in the incident was denied by the hearing




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                                            3
officer as Anderson's "disciplinary report and supplemental evidence

support[ed] the charge."

      Based on the evidence, the hearing officer found Anderson guilty of

prohibited acts *.002, *.708, and *.306. In addition to the testimony of the

witnesses, the hearing officer reviewed the videotape of the recreation yard on

the date of the incident. The hearing officer explained the videotape showed

Anderson attempting to enter the recreation yard without being frisked. In

accordance with the correctional facility's procedure, the videotape depicted the

officer "call[ing] [Anderson] back to be frisked," and then Anderson "turn[ing]

and str[iking]" the officer in the face.

      The hearing officer imposed the maximum sanctions of 365 days

administrative segregation, 365 days loss of commutation time, and 180 days

loss of recreational privileges for the three charges combined. In support of the

sanctions, the hearing officer explained Anderson's behavior "resulted in a code

and [institution-wide] cancellations" of recreation movement.         He found

Anderson assaulted one officer and, by remaining combative, endangered other

officers who responded to the incident. In addition, the hearing officer stated

Anderson was non-compliant with well-known procedures within the

correctional facility.


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                                           4
      Anderson filed an administrative appeal from the hearing officer's

determination.    In upholding the hearing officer's decision, the Assistant

Superintendent found "[t]here was no misinterpretation of the facts" as "[v]ideo

of the incident clearly shows [Anderson] striking the officer in the face while he

was attempting to conduct a pat search."            The Assistant Superintendent

explained Anderson's "actions were impulsive and this type of behavior will not

be tolerated." This appeal followed.

      On appeal, Anderson argues his rights were violated, the guilty finding

was not supported by the evidence, and the sanctions imposed were excessive.

      Our review of an agency determination is limited. In re Stallworth, 208

N.J. 182, 194 (2011). 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." Ibid. (omission in

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

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

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

supports the findings; and (3) 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)). "'Substantial evidence' means 'such evidence


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                                          5
as a reasonable mind might accept as adequate to support a conclusion.'"

Figueroa v. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting

In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).

      Prison disciplinary hearings are not part of a criminal prosecution, and the

full spectrum of rights due to a criminal defendant does not apply. Avant v.

Clifford, 67 N.J. 496, 522 (1975).           However, when reviewing a DOC

determination in a matter involving prisoner discipline, we consider not only

whether there is substantial evidence that the inmate committed the prohibited

act, but also whether, in making its decision, the DOC followed regulations

adopted to afford inmates procedural due process. See McDonald v. Pinchak,

139 N.J. 188, 194-96 (1995).

      Having reviewed the record, we are satisfied there is sufficient credible

evidence in the record supporting the DOC's final decision. The videotape of

the incident shows Anderson refusing to be searched prior to entering the

recreation yard and then striking the officer in the face with a closed fist. In

responding to the incident, the orderly operation of the correction al facility was

disrupted until Anderson was subdued. Based on the videotape evidence and

testimony, there is a substantial basis in the record for the guilty finding against

Anderson for each of the prohibited acts.


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                                         6
      Anderson also contends he was not afforded all the process due to inmates.

We disagree. Anderson was not prohibited from calling witnesses or presenting

witness statements. Anderson had an opportunity to confront and cross-examine

adverse witnesses and did so. In addition, Anderson reviewed the adjudication

reports and all evidence presented to the hearing officer. The signature of

Anderson's counsel substitute on the adjudication reports indicated the

information contained in the reports accurately reflected the hearing proceeding.

Thus, we are satisfied Anderson received all the process an inmate is due.

      Anderson also argues the sanctions imposed were excessive and amounted

to cruel and unusual punishment in violation of his Eighth Amendment rights.

We disagree. The sanctions imposed for each of the prohibited acts on which

Anderson was found guilty fell within the range of potential disciplinary action

established under the New Jersey Administrative Code and therefore were

proper.

      Affirmed.




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