                                NOT FOR PUBLICATION WITHOUT THE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-2644-18T3

YUSUF IBRAHIM,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted January 16, 2020 – Decided February 4, 2020

                   Before Judges Nugent and Suter.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Yusuf Ibrahim, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Christopher Josephson, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Appellant Yusuf Ibrahim is an inmate at the New Jersey State Prison. He

appeals a final administrative determination of the Department of Corrections

(DOC) filed on January 2, 2019 finding him guilty of prohibited act *.004,

fighting with another person, and *.306, conduct which disrupts or interferes

with the security or orderly running of the correctional facility. See N.J.A.C.

10A:4-4.1(a). We affirm.

      A fight broke out in the recreation deck of the prison involving appellant

and another inmate. Appellant claimed he acted in self-defense because the

other inmate "grabbed my jacket" and "punched me in the face repeatedly." He

then took off his jacket and "stepped up to [the other inmate] proactively

defending myself from the impending onslaught."

      The recreation area officer reported appellant walked up to the other

inmate "and began to physically assault [him] by striking him multiple times

with his forehead." Both inmates exchanged blows. A "code 33 (emergency)"

was called and all the inmates in the recreation area were ordered "to stand

against the walls . . . . [Appellant and the other inmate] ignored the command

and continued to physically assault each other." When the fight was stopped the

recreation area had to be searched for "signs of fire, contraband or escape[.]"

None was found. This took twenty-three minutes.


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      The next day appellant was charged with prohibited act *.004, fighting

with another person, and *.306, conduct which disrupts or interferes with the

security or orderly running of the correctional facility. He pleaded not guilty to

the charges and was granted the assistance of counsel substitute. At the hearing,

his position was "I had no choice. [The other inmate] started it." Appellant

alleged there was no disruption to the prison that warranted sanctions.

      A disciplinary hearing was conducted on December 18, 2018. His counsel

substitute viewed the videotape of the incident, but appellant "declined [the]

opportunity to view [it]." Appellant called no witnesses at the hearing and did

not request to cross-examine any adverse witness.

      The hearing officer found appellant guilty of both charges.           After

reviewing the videotape, the hearing officer summarized it. The inmates were

arguing and the other inmate, not appellant, "[threw] the first punch, initiating

the fight." Appellant took off his shirts, called back the other inmate and they

"square up" and started fighting again. The hearing officer described that they

"[took] several breaks in between" until officers arrived and "order[ed] them to

the ground." Appellant "complie[d]," but the other inmate "attempt[ed] to kick

him" and appellant "[got] up to avoid further confrontation."




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        In finding appellant guilty on prohibited act *.004, the hearing officer

found appellant "had several opportunities to retreat, but did not."           For

prohibited act *.306, the hearing officer found the "yard had to be cleared . . .

[and] searched for possible contraband.       This process took approximately

[twenty-three minutes.]" This "shortened the [inmates'] recreation time [and]

thereby disrupted the orderly/normal running of the institution . . . ." Appellant

was sanctioned to a combined 120 days of administrative segregation, 120 days

loss of commutation time and 120 days of loss of recreation privileges.

        Appellant filed an administrative appeal. Substitute counsel's written

argument in support of the appeal continued to claim self-defense to the *.004

finding. He also disputed the *.306 finding because this was a "simple fist

fight," no weapons were involved, the delay was slight, the regulation did not

clearly specify what conduct was prohibited and that it was applied in an

arbitrary and capricious fashion. 1

        On January 2, 2019, the Associate Administrator upheld the decision of

the hearing officer on both charges because it was "based on substantial

evidence and the sanction was proportionate in view of [his] prior disciplinary

history."


1
    On appeal, appellant relies on these arguments.
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                                        4
      On appeal, appellant raises two points:

            POINT I

            ALL THE ELEMENTS NECESSARY FOR A CLAIM
            OF SELF-DEFENSE ARE PRESENT.

            POINT II

            DUE PROCESS WAS VIOLATED WHEN I WAS
            DENIED THE OPPORTUNITY TO REVIEW THE
            CAMERA FOOTAGE WHICH WAS CENTRAL TO
            MY CONSTRUCTION OF A DEFENSE TO THE
            CHARGES.

      In this appeal from agency action, our review is limited. Figueroa v. N.J.

Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). We ordinarily decline

to reverse the decision of an administrative agency unless it is "arbitrary,

capricious or unreasonable or it is not supported by substantial credible evidence

in the record as a whole." In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry

v. Rahway State Prison, 81 N.J. 571, 581 (1980)). A finding that an inmate

committed a disciplinary offense only has to be "supported by substantial

evidence," Avant v. Clifford, 67 N.J. 496, 530 (1975), which means, "such

evidence as a reasonable mind might accept as adequate to support a

conclusion." Figueroa, 414 N.J. Super. at 192 (quoting In re Pub. Serv. Elec. &

Gas Co., 35 N.J. 358, 376 (1961)); see also N.J.A.C. 10A:4-9.15(a). When such

evidence exists, a court may not substitute its own judgment for the agency's

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                                        5
even though the court may have reached a different result. See Figueroa, 414

N.J. Super. at 191 (citing Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1,

10 (2009)). 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 reject appellant's contention that the decision by the hearing officer

violated his due process rights under Avant, 67 N.J. at 525-33. Appellant was

given notice of the charges and a hearing before an impartial tribunal, where he

declined the opportunity to call or cross-examine witnesses.          The report

indicates that the counsel substitute reviewed the videotape, but that appellant

declined to do so.

      For the first time, appellant argues he was not given the opportunity to

review the videotape. 2 Even if that were so, there was no prejudice to appellant.

Appellant was present at the fight. He had the ability to describe his version of



2
   We could decline to consider this question because of this procedural
deficiency. "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).
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                                        6
the events. He does not dispute that his counsel substitute and the hearing officer

reviewed the videotape. The hearing officer found appellant had the ability to

retreat and did not. Appellant says as much in his brief when he described that

once the other inmate "released his grip," appellant "stepped up to him

proactively defending myself from the impending onslaught." This is consistent

with the hearing officer's finding appellant had the ability to stop fighting , but

did not. Appellant describes his actions as self-defense. His counsel substitute

made this argument to the hearing officer, but it was rejected. There was no

violation of due process under Avant on these facts.

      There was substantial evidence in the record to support the agency's

decision based on the reports and evidence submitted at the hearing; the agency

decision was not arbitrary, capricious or unreasonable. All of this supported the

hearing officer's finding that appellant had opportunities to retreat but did not.

The fight caused code 33 to be called and the procedures to be followed

disrupted the normal function of the prison.

      We conclude that appellant's further arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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