                                NOT FOR PUBLICATION WITHOUT THE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-5587-16T1

CHARLES MERRITT,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
________________________________

                    Submitted November 28, 2018 – Decided March 8, 2019

                    Before Judges Fuentes and Vernoia.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Charles Merritt, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Suzanne M. Davies,
                    Deputy Attorney General, on the brief).

PER CURIAM
      Appellant Charles Merritt is an inmate serving a fifty-year sentence at

South Woods State Prison. He appeals from the final decision of the New Jersey

Department of Corrections (DOC) finding he committed disciplinary infraction

.254 under N.J.A.C. 10A:4-4.1, "refusing to work, or to accept a program or

housing unit assignment." After reviewing the record developed before the

DOC and mindful of our standard of review, we reverse and expunge this

disciplinary infraction from appellant's inmate comportment record.

      On June 14, 2017, appellant "became argumentative" when a Correction

Officer (C.O.) attempted to serve him an "on-the-spot" disciplinary charge.

Appellant refused to sign the charge and requested to see a Sergeant, who would

presumably have supervisory authority to interact in this situation. The C.O.

denied appellant's request and twice repeated his order for appellant "to return

to his cell and lock in." Appellant did not obey the C.O.'s commands. Against

these facts, the DOC charged appellant with committing disciplinary infraction

.254, "refusing to work, or to accept a program or housing unit assignment ."

Appellant refused to participate in the disciplinary hearing conducted by a

hearing officer. Based on the facts we have described, the hearing officer found

appellant guilty of disciplinary infraction .254 and imposed a sanction of ten

days loss of recreation privileges, sixty days loss of commutation time


                                                                        A-5587-16T1
                                       2
suspended for sixty days, and ninety days of administrative segregation (solitary

confinement) suspended for sixty days under N.J.A.C. 10A:4-9.18.

      Before this court, appellant argues the DOC did not meet its burden of

proof under N.J.A.C. 10A:4-9.15(a), which requires that "a finding of guilt at a

disciplinary hearing shall be based upon substantial evidence that the inmate has

committed a prohibited act." As an intermediate appellate court, we are bound

not to disturb an agency's ultimate determination unless the decision is

"arbitrary, capricious, or unreasonable, [] or not supported by substantial

credible evidence in the record as a whole." In re Stallworth, 208 N.J. 182, 194

(2011) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J.

571, 579-80 (1980)). Furthermore, "when reviewing agency decisions, we defer

to matters that lie within the special competence of an administrative tribunal."

Mejia v. N.J. Dep't of Corr., 446 N.J. Super. 369, 376 (App. Div. 2016) (quoting

Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003)).

      Here, the evidence presented to the hearing officer does not support that

appellant committed the disciplinary charge .254 "refusing to work, or to accept

a program or housing unit assignment." Accepting the veracity of the C.O.'s

account of events, appellant twice refused to obey an order "to return to his cell

and lock in." This was an act of defiance by appellant of this particular C.O.'s


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                                        3
order, not a refusal to accept a housing assignment. Stated differently, this was

a personal act of disobedience, not a systemic defiance. The DOC could have

charged appellant under N.J.A.C. 10A:4-4.1 with committing disciplinary

infraction .256 "refusing to obey an order of any staff member." However, for

reasons not disclosed in this record, the DOC decided to charge appellant with

committing disciplinary infraction .254. Based on the facts presented to the

hearing officer, the DOC did not meet its burden of proof to find appellant guilty

of committing disciplinary infraction .254 under N.J.A.C. 10A:4-9.15(a).

      Reversed.




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