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                           APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NOS. A-2912-15T4
                                                                 A-1126-16T1
                                                                 A-3618-16T3

MICHAEL STANTON,

       Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF
CORRECTIONS,

     Defendant-Respondent.
__________________________________

                Submitted September 13, 2018 – Decided September 21, 2018

                Before Judges Reisner and Mawla.

                On appeal from the New Jersey Department of
                Corrections.

                Michael Stanton, appellant pro se.

                Gurbir S. Grewal, Attorney General, attorney for
                respondent (Melissa Dutton Schaffer, Assistant
                Attorney General, of counsel; Suzanne Davies, Deputy
                Attorney General, on the brief in A-2912-15 and A-
                1126-16; Tasha Bradt, Deputy Attorney General, on the
                brief in A-3618-16).
PER CURIAM

      Michael Stanton is presently serving a thirty-five year sentence in New

Jersey State Prison for various offenses. In A-2912-15, Stanton appeals from a

February 5, 2016 adjudication by the New Jersey Department of Corrections

(DOC), finding him guilty of prohibited act *.004, fighting with another person.

See N.J.A.C. 10A:4-4.1. In A-1126-16, he challenges an October 4, 2016

adjudication finding him guilty of prohibited act .705, commencing or operating

a business or group for profit, or commencing or operating a non-profit

enterprise without approval of the prison administrator. In A-3618-16, Stanton

appeals from a December 8, 2016 decision adjudicating him guilty of prohibited

acts *.10/*.803, attempting to participate, or participating, in activities related

to a security threat group.     We have consolidated these three appeals for

purposes of this opinion. We affirm the adjudications in A-2912-15 and A-

1126-16, and reverse and remand A-3618-16 to the DOC for a re-hearing. The

relevant facts underlying each appeal are set forth below.

      A-2912-15

      On January 31, 2016, a senior correction officer observed Stanton fighting

with two other inmates. The officer's report stated he sounded an alert and used

pepper spray "in the direction of . . . Stanton" to break up the fight. When

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                                        2
Stanton was handcuffed he informed the officer the two other inmates had stolen

his television. Prison officials discovered Stanton's television in the o ther

inmates' cell. Stanton and the other inmates were charged with committing

prohibited act *.004, fighting with another person. The other inmates were also

charged with prohibited act .210 for the unauthorized possession of Stanton's

television.

      At the subsequent hearing, Stanton argued he was defending himself. The

hearing officer concluded no evidence of self-defense was provided, and instead

found "[a] Code 33 was called and [pepper] spray deployed." Stanton was found

guilty of the fighting charge, and sanctioned with loss of recreation privileges,

loss of commutation time, and administrative segregation.

      A-1126-16

      On August 6, 2016, the DOC recorded a telephone call between Stanton

and his girlfriend wherein he asked "whether she had received any emails or

phone calls" and "what mail she is getting ready." His girlfriend replied, "some

books." He also asked her if a "guy" had contacted her about the money for the

books and "if she included a self-addressed, stamped envelope" with the

correspondence. Stanton also stated "out of everyone writing, [he was] the only

one with books for sale." In response to his girlfriend stating she was "making


                                                                         A-2912-15T4
                                       3
sure all of the pages are there," Stanton said "they'll tell you that . . . whoever

get[s] it."

       On the same date, the DOC confiscated a large box addressed to Stanton,

which contained "magazines featuring women in scantily-clad clothing" and

invoices from a wholesale periodical distributor. Stanton's girlfriend had made

deposits totaling $750 into his prison account between June 21 and August 18,

2016. Invoices addressed to Stanton from the magazine distributor bearing

names such as: "Dime Piece"; "Body"; "Thick"; "XXL"; "IAdore"; "Spicy

Latinas"; "BlackMen"; "Seductive"; and "Shygirl" were dated July 29 and

August 19, 2016. The invoices were contemporaneous with the deposits to

Stanton's prison account.

       The DOC investigation also revealed Stanton had received "a large manila

envelope" containing letters from "inmates at other correctional facilities

throughout the country" asking him to accept their writing samples for

publication. One of the inmate letters referred to Stanton as "Author/CEO" of

"Starchild Enterprise." Stanton also received a letter from PRC Book Printing

addressed to "Starchild Publishing" in response to his request for a price quote.

       As a result, the DOC investigation found Stanton intended to distribute

the magazines to other inmates in exchange for "pecuniary benefit," and had


                                                                           A-2912-15T4
                                        4
discussed both the magazines and "the business" during the call with his

girlfriend.   The investigation also found the girlfriend's statement she was

"making sure all of the pages are there" concerned the magazines. As a result,

the investigation concluded Stanton participated in two business ventures f or

profit, namely, one involving the sale of adult magazines to inmates, and the

other involving the national solicitation of writing samples from inmates for

publication in Stanton's capacity as "CEO" of Starchild Publishing.

Accordingly, he was adjudicated guilty of operating a business.

      A-3618-16

      On January 25, 2015, a DOC investigator intercepted outgoing mail

authored by Stanton to his girlfriend. According to the investigator, the mail

was intercepted because it contained disapproved content. As a result, Stanton

was charged with *.803/*.010, attempting to participate, or participating, in

activities related to a security threat group.

      The hearing officer found the Special Investigations Division (SID)

received authorization to open the mail, as required by DOC regulations, but did

not explain why the authorization was given. Prior to this appeal, we granted

the Attorney General's motion to remand, for the DOC to explain the basis for




                                                                        A-2912-15T4
                                          5
the authorization to open Stanton's mail. On appeal, Stanton argues the DOC

refused to explain why SID believed the mail contained disapproved content.

                                       I.

      N.J.A.C. 10A:4-9.15(a) requires "a disciplinary hearing officer's

adjudication that an inmate committed a prohibited act . . . be based on

substantial evidence in the record." Figueroa v. Dep't of Corr., 414 N.J. Super.

186, 191 (App. Div. 2010). "'Substantial evidence' means 'such evidence as a

reasonable mind might accept as adequate to support a conclusion.'" Id. at 192

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

cannot base disciplinary determinations on "a subjective hunch, conjecture or

surmise of the factfinder." Id. at 191. Moreover, determinations cannot be based

upon "bare net opinion." Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-

04 (App. Div. 2000).

      "In light of the executive function of administrative agencies, judicial

capacity to review administrative actions is severely limited." George Harms

Constr. Co., Inc. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).         The "final

determination of an administrative agency . . . is entitled to substantial

deference." In re Eastwick Coll. LPN-RN Bridge Program, 225 N.J. 533, 541

(2016).


                                                                        A-2912-15T4
                                       6
            An appellate court will not reverse an agency's final
            decision unless the decision is "arbitrary, capricious, or
            unreasonable," the determination "violate[s] express or
            implied legislative policies," the agency's action
            offends the United States Constitution or the State
            Constitution, or "the findings on which [the decision]
            was based were not supported by substantial, credible
            evidence in the record."

            [Ibid. (quoting Univ. Cottage Club of Princeton N.J.
            Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48
            (2007)).]

However, we must complete "more than a perfunctory review" of agency

matters, and we will not "merely rubberstamp an agency's decision." Figueroa,

414 N.J. Super. at 191 (internal citations and quotations omitted).

                                       II.

      On appeal in A-2912-15, Stanton reiterates his claim of self-defense. In

A-1126-16, Stanton argues he wanted to see the document authorizing the DOC

to search his mail.   Stanton also argues the disciplinary decision was not

supported by substantial credible evidence. In A-3618-16, Stanton does not

challenge the DOC's determination that the contents of his letter contained

material related to a security threat group. Instead, he claims the DOC took too

long to provide discovery in connection with the remand hearing, and did not

establish the grounds to open his mail under N.J.A.C. 10A:18-2.7(d). We

address these arguments in turn.

                                                                         A-2912-15T4
                                        7
                                        A.

      As we noted, in A-2912-15, Stanton was sanctioned for committing

prohibited act *.044, fighting with another person. On appeal, he contends the

two other inmates attacked him and stole his television. Indeed, the televis ion

was found in their cell, and the DOC confirmed it belonged to Stanton. The

contemporaneous report of the incident states Stanton told officers the other

inmates stole his television and it "escalated" into a "physical altercation." At

the hearing, Stanton claimed he was defending himself. He did not call any

witnesses or ask to confront any witnesses to corroborate his claim of self -

defense.

      An inmate charged with fighting may assert self-defense, "and if

established, [self-defense will] exonerate the individual charged with the

infraction." DeCamp v. N.J. Dep't of Corr., 386 N.J. Super. 631, 640 (App. Div.

2006). N.J.A.C. 10A:4-9.13(f) states:

            [T]he 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;


                                                                         A-2912-15T4
                                        8
             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.

      Here, Stanton offered no evidence to corroborate his claim of self-defense

beyond merely asserting it. To sustain a claim of self-defense, Stanton had to

present evidence addressing the factors of N.J.A.C. 10A:4-9.13(f), in order to

rebut the officer's observations. In the absence of such evidence, the DOC's

determination Stanton was fighting because the other inmates had taken his

television and that he was pepper sprayed in order to stop the altercation, which

demonstrated he was the aggressor, was supported by sufficient credible

evidence. Stanton's claim he was attacked and acting in self-defense was not

supported by credible evidence. Accordingly, we affirm the DOC's decision in

A-2912-15.




                                                                          A-2912-15T4
                                         9
                                           B.

      In A-1126-16, Stanton argues the DOC's determination he was guilty of

.705, commencing or operating a business or group for profit, should be reversed

for lack of substantial credible evidence. We disagree.

      Stanton pled not guilty and denied he owned or operated a business. He

claimed he advised unpublished authors how to properly submit their

manuscripts for publication. However, he denied publishing any manuscripts.

He explained he was a published author and writer for Starchild Publishing, and

owned the copyright to his own book. He claimed that during the phone call

with his girlfriend, he spoke with her "about books and emails" because she was

his publicist.

      The DOC found Stanton guilty and imposed sanctions.            The DOC

concluded Stanton intended to sell the magazines because of the large shipment

he received, and found he was the CEO of Starchild Publishing based upon the

letters he received from other inmates and the printing company. The DOC

further concluded the telephone call supported the charge.

      We are satisfied the evidence relied upon by the DOC was substantial and

credible enough to support a finding of guilt, and was not based upon a "hunch,

conjecture, [and] surmise." Figueroa, 414 N.J. Super. at 191. Indeed, Stanton


                                                                        A-2912-15T4
                                      10
received a box of adult magazines, whose quantity was inconsistent with

personal use, which supports the finding he was either commencing or operating

a business for profit. Stanton's telephone calls referenced compensation for h is

efforts, and sought assurances third-parties had received complete copies of

shipments. The telephone conversations, coupled with a large deposit into

Stanton's JPay account, supported the finding he was in the magazine-selling

business. Stanton's letter inquiry seeking a price quote from a publisher, and

inmate letters asking him to publish their writing, supports the conclusion

Stanton was operating a publishing business. 1

      For these reasons, we conclude the DOC's determination was based upon

substantial, credible evidence in the record. We affirm the adjudication of guilt

under the .705 charge.

                                         C.

      Finally, in A-3618-16, Stanton argues the DOC determination he was

guilty of *.803/*.010 for attempting to participate, or participating, in activitie s

related to a security threat group should be reversed because the DOC violated



1
 Stanton's claim he was denied due process because the investigator failed to
produce written verification he was authorized to read Stanton's mail lacks
merit. No regulation requires the DOC to furnish a copy of the confidential
authorization list in a disciplinary hearing.
                                                                             A-2912-15T4
                                        11
due process by delaying his hearing, and did not give a reason why his mail was

suspected to contain disapproved content. We agree the latter argument is cause

to reverse the DOC's determination and remand for rehearing.

      Before addressing our reasons for reversal, we address Stanton's due

process claim. As we noted, this matter was remanded pursuant to a motion by

the Attorney General for the DOC to make findings regarding the reasons for

opening Stanton's mail. N.J.A.C. 10A:4-9.7 states:

            (a) Hearings that have been postponed for further
            investigation shall be reviewed by the Disciplinary
            Hearing Officer or Adjustment Committee to determine
            if an additional postponement is warranted:

                  1.   Within 48 hours of the postponement, if the
                  inmate is in Prehearing Disciplinary Housing; or

                  2.     Within seven calendar days of the
                  postponement if the inmate is in any other unit.
                  Should the seventh day fall on a Saturday,
                  Sunday or holiday, the last day for the hearing
                  shall be the business day immediately following
                  the weekend or holiday.

            (b) Additional postponements shall be granted only
            in exceptional circumstances.

N.J.A.C. 10A:4-9.8(b) provides:

            The inmate shall be entitled to a hearing within seven
            calendar days of the alleged violation, including
            weekends and holidays, unless such hearing is
            prevented by exceptional circumstances, unavoidable

                                                                       A-2912-15T4
                                     12
            delays or reasonable postponements. Should the
            seventh day fall on a Saturday, Sunday or holiday, the
            last day for the hearing shall be the business day
            immediately following the weekend or holiday.

      We reject Stanton's argument that the delay of his hearing was tantamount

to a due process violation. N.J.A.C. 10A:4-9.9(a) states:

            The failure to adhere to any of the time limits
            prescribed by this subchapter shall not mandate the
            dismissal of a disciplinary charge. However, the
            Disciplinary Hearing Officer or Adjustment Committee
            may, in its discretion, dismiss a disciplinary charge
            because of a violation of time limits. Such discretion
            shall be guided by the following factors:

                   1.     The length of the delay;

                   2.     The reason for the delay;

                   3.    Prejudices to the inmate in preparing
                   his/her defense; and

                   4.     The seriousness of the alleged infraction.

      The postponement here was for purposes of obtaining information for

Stanton to use in the hearing to confront the DOC's witness. Stanton failed to

show how he was prejudiced by a postponement whose purpose was to aid him

in asserting a defense.

      N.J.A.C. 10A:18-2.7(d) states outgoing correspondence "shall not be

opened, read or censored unless there is reason to believe" (emphasis added) it


                                                                       A-2912-15T4
                                       13
contains disapproved content, and the prison administrator gives advance

approval. Unlike the charge in A-1126-16, where the basis to open Stanton's

mail was justified by his telephone conversations with his girlfriend and large

deposits to his prison account, here the record contains no basis for the DOC's

actions. We are constrained to reverse and remand the adjudication of guilt

because the DOC failed to make findings regarding its grounds for opening

Stanton's mail.

      We note there is no dispute the SID unit received authorization to open

the mail, as required by the DOC regulations. According to the record, SID

sought authorization based on a belief that the mail was gang related

correspondence. However, even after we granted the Attorney General's motion

for a remand to enable the DOC to set forth why it believed Stanton's mail

contained disapproved content, the record still lacks an explanation. Indeed, the

initial DOC adjudication stated: "See exhibit D4 for questions [and] responses

. . . relied upon to determine guilt[.] . . . [T]he reason . . . [Stanton's] mail was

opened is given in exhibits A8 [and] D4." However, exhibit A8 is redacted and

offers no meaningful information, and D4 is missing from the record. The DOC

disciplinary appeal disposition sheds no further light on the subject, and only

states: "SID Investigators are trained in recognizing STG material and their


                                                                             A-2912-15T4
                                        14
reports have to [be] relied upon as factual. SID stated they had reason to believe

that the correspondence contained disapproved content and they received

authorization to search correspondence as per policy."

      We acknowledge that the DOC may be reluctant to provide an explanation

for the decision to open an inmate's mail as it may compromise prison security

or reveal the identity of a confidential informant. However, as we noted, our

review is neither perfunctory nor a rubber stamp. In order for us to engage in a

meaningful review, an explanation must be provided, by confidential appendix

if necessary. For these reasons, we reverse and remand the guilty adjudication

under .705 for a second hearing, which must include an explanation of the DOC's

reason to believe Stanton's mail contained disapproved content.

      The adjudications in A-2912-15 and A-1126-16 are affirmed. A-3618-16

is reversed and remanded for re-hearing and further findings in accordance with

this opinion. We do not retain jurisdiction.




                                                                          A-2912-15T4
                                       15
