                                NOT FOR PUBLICATION WITHOUT THE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-2770-17T2


SUREN GARRISON,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
______________________________

                    Submitted December 20, 2018 – Decided March 18, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Suren Garrison, 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).

PER CURIAM
      Suren Garrison, an inmate currently housed at Northern State Prison,

appeals the Department of Corrections' (DOC) August 10, 2017 disposition

upholding a disciplinary determination that Garrison was guilty of committing

prohibited act *.004, fighting with another person, in violation N.J.A.C. 10A:4-

4.1(a)(2)(i). After reviewing the record, we conclude the DOC decision was not

arbitrary, capricious, or unreasonable, and we affirm.

      We discern the following facts from the record. On August 1, 2017, at

4:47 p.m., a senior corrections officer responded to yelling coming from

Garrison's cell and found him and his cellmate fighting with closed fists.

Garrison was taken to the hospital to be treated for head and facial trauma and

an ankle dislocation. On August 3, 2017, Garrison was notified he was charged

with committing prohibited act *.004, fighting with another person in violation

of N.J.A.C. 10A:4-4.1(a)(2)(i).

      Garrison pled not guilty and was assigned counsel substitute upon his

request. At the August 8, 2017 hearing, the senior corrections officer who broke

up the fight submitted a written statement. Garrison asserted he was not fighting

but was assaulted by his cellmate. His counsel substitute provided a statement,

but called no witnesses.     The hearing officer found "[a]ll evidence was

considered. The I/M [inmate] provided nothing to discredit the evidence or the


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                                       2
charge. The evidence supports the charge. Charge upheld." The hearing officer

found Garrison guilty and sentenced Garrison to 180 days administrative

segregation, ninety days loss of commutation time, and twenty days loss of

recreation privileges.   Garrison appealed and Assistant Superintendent M.

Ganesh upheld the decision after finding it supported by substantial evidence.

This appeal followed.

      Our role in reviewing a prison disciplinary decision is limited. Figueroa

v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). We will not

disturb an administrative agency determination unless it is arbitrary, capricious

or unreasonable. Ibid. N.J.A.C. 10A:4-9.15(a) requires that "a disciplinary

hearing officer's adjudication that an inmate committed a prohibited act . . . be

based on substantial evidence in the record." Id. at 191. "'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)).

      Garrison argues his case should have been given further review because

the senior corrections officer who witnessed the altercation ceased working at

Northern State Prison after his case was adjudicated. Additionally, for the first




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                                       3
time on appeal, Garrison argues his counsel substitute was ineffective for not

requesting a polygraph examination. We reject both arguments.

      The hearing officer based his decision on substantial evidence consisting

of a statement from the senior corrections officer who witnessed Garrison and

his cellmate fighting with closed fists. Garrison was given the opportunity to

present witnesses but declined to do so. This is significant because under

N.J.A.C. 10A:4-9.13(f), an "inmate claiming self-defense shall be responsible

for presenting supporting evidence" that the inmate: "was not the initial

aggressor[,]" "did not provoke the attacker[,]" and "had no reasonable

opportunity or alternative to avoid the use of force[.]" The inmate must also

prove: "[t]he use of force was not by mutual agreement[,]" "was used to defend

against personal harm[,]" and "was reasonably necessary for self-defense and

did not exceed the amount of force used against the inmate." Ibid.

      Garrison does not explain why the senior corrections officer who

witnessed Garrison's fight ceased working at Northern State Prison or what the

officer's leaving had to do with his disciplinary proceeding, if anything. We

decline to address the argument that Garrison's counsel substitute was

ineffective for not requesting a polygraph because it was not raised below,




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                                      4
despite an opportunity to do so. See Selective Ins. Co. of Am. v. Rothman, 208

N.J. 580, 586 (2012). 1

      We do not overlook the extent of injuries Garrison apparently suffered;

however, after a review of the record, we conclude Garrison received all of the

due process to which he was entitled to under the law.         See McDonald v.

Pinchak, 139 N.J. 188, 195 (1995); Avant v. Clifford, 67 N.J. 496, 523 (1975).

Garrison was given written notice of the charge at least twenty-four hours before

the hearing, he was provided with counsel substitute, he was offered an

opportunity to call and confront witnesses, and he received a written statement

of the evidence relied upon and the reasons for the discipline.

      Affirmed.



1
  "A polygraph examination may be requested by the Administrator or designee
. . . [w]hen there are issues of credibility regarding serious incidents or
allegations which may result in a disciplinary charge[.]" N.J.A.C. 10A:3-
7.1(a)(1). "The code regulation's principal impetus is as an investigative tool of
the administrator when serious disciplinary infractions are alleged against an
inmate as opposed to an affirmative right granted to the inmate himself."
Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). An
inmate does not have the right to a polygraph test. Johnson v. N.J. Dep't of
Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); see also N.J.A.C. 10A:3-7.1(c)
("An inmate's request for a polygraph examination shall not be sufficient cause
for granting the request."). Instead, N.J.A.C. 10A:3-7.1 "is designed to prevent
the routine administration of polygraphs, and a polygraph is clearly not required
on every occasion that an inmate denies a disciplinary charge against him."
Ramirez, 382 N.J. Super. at 23-24.
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