NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2713-22
ANDREW PENDER,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. ___________________________
Submitted May 15, 2025 – Decided June 2, 2025
Before Judges Mawla and Walcott-Henderson.
On appeal from the New Jersey Department of Corrections.
Andrew Pender, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Leo R. Boerstoel, Deputy Attorney General, on the brief).
PER CURIAM Andrew Pender, an inmate in New Jersey State Prison, appeals from a
March 27, 2023 final agency decision of the Department of Corrections (DOC)
upholding a finding of guilt as to various disciplinary charges incurred over a
two-month period, following a hearing. Pender challenges the sanctions
imposed, arguing they are excessive, arbitrary, and capricious, and a violation
of his due process rights under N.J.A.C. 10A:4-9.8(c). Perceiving no merit to
his arguments, we affirm.
On November 17, 2022, Pender was involved in a fight in the prison mess
hall. He was charged with violations under N.J.A.C. 10A:4-4.1(a) for prohibited
acts *.004 (fighting with another person) and *.306 (conduct that disrupts or
interferes with the security or orderly running of the facility). According to
Pender, "he admitted he was guilty of fighting and accepted responsibility for
his actions," with respect to this charge. Although initially charged on
November 17, 2022, Pender's disciplinary hearing did not commence until
February 2, 2023, seventy-seven days later.
Thereafter, Pender was involved in various other infractions resulting in
additional charges mostly related to his disruptive behaviors, which are set forth
in the following chart submitted by Pender with the State's consent.
A-2713-22 2 After the November 17, 2022 charge, Pender was placed on "constant
watch" for mental health monitoring but later cleared for the disciplinary hearing
process to commence on December 20, 2022. The disciplinary hearings
commenced on January 3, 2023, were adjourned until February 2, 2023, and
concluded on March 15, 2023.
At the January 3, 2023 hearing, the hearing officer initially considered the
following charges: *.253 (engaging in or encouraging a group demonstration or
A-2713-22 3 work stoppage), *.256 (refusing to obey an order of any staff member), and
*.306 (conduct that disrupts or interferes with the security or orderly running of
the correctional facility) for his refusal to exit a recreation module and for
encouraging other inmates to do the same. DOC did not pursue infractions *.253
and *.306. Due to delays in obtaining video evidence of the incident and to
allow for confrontation with the arresting officers, the hearing was delayed until
February 2, 2023. Pender was ultimately found guilty of violation *.256.
Prior to the start of the February hearing, on November 30, 2022, Pender
was charged with violation *.502 (interfering with the taking of count) for
locking his door with clothing and failing to respond to the routine inmate
attendance count. He was found guilty of violating *.502 on March 15, 2023.
On the same day, Pender was also charged with violation *.152
(destroying, altering, or damaging government property or the property of
another person), for destroying a unit phone in his cell. The first portion of the
hearing occurred on January 3, 2023, and the second portion occurred on March
15, 2023, to allow DOC time to procure the video footage and adverse witnesses.
Pender had initially requested a right to confront witnesses but later declined
that right on March 15, 2023. He was found guilty of violation *.152.
A-2713-22 4 On December 1, 2022, Pender refused to move to the rear of his housing
unit, refused to respond to the routine inmate "count" and was blocking the view
of his window. He was charged on that date with violation *.501 (failure to
stand count). Following the hearing, Pender was found guilty of this charge.
On December 2, 2022, while was being brought into an interview room,
Pender ran towards and attempted to attack mental-health doctors, resulting in a
charge of violation *.803/*.002 (attempting to commit an assault). His hearing
related to this charge was originally set for January 3, 2023, but was postponed
until February 2, 2023, to allow for time to collect video footage and to grant
his confrontation requests. He was ultimately found guilty of this prohibited act
on February 2, 2023.
On December 3, 2022, Pender was being escorted by an officer from the
nursing station when he struck the officer with his elbow and grabbed the
officer's leg. He was subsequently charged with prohibited act *.002 (assaulting
any person). The hearing on that charge also commenced on January 3, 2023,
and was completed on February 2, 2023, after a continuation to allow for the
collection and presentation of the video evidence and to consider Pender's
request to confront adverse witnesses. Because the video supported the charge,
A-2713-22 5 Pender's request for confrontation was denied. He was subsequently found
guilty of this charge.
On January 11, 2023, two separate officers witnessed Pender throw a
brown-and-yellow liquid onto an officer who was serving dinner and collecting
trash, some of which ended up in the officer's mouth. He was charged with
prohibited act *.012 (throwing bodily fluid at any person). Pender attended the
hearing for one of the charges but not the other. At the hearing he attended,
Pender requested video footage and confrontation. The hearing was delayed
from February 2, 2023 to March 22, 2023, to permit Pender access to the video
footage and witnesses. 1 DOC denied confrontation during the latter hearing, as
the video footage supported the charge. The charges were combined, and Pender
was found guilty.
On January 15, 2023, Pender grabbed a nurse's arm and attempted to pull
her through the window, as she was serving him medication. Pender stated to
the nurse "don't play me, b[****]" while laughing. He was charged with
violation *.002 (assaulting any person). He refused to attend this hearing and
was found guilty in absentia on February 2, 2023.
1 The record reflects a dispute as to the hearing date. DOC's record states March 22, 2023, while the final agency decision reflects a hearing date of March 15, 2023. A-2713-22 6 Finally, on January 19, 2023, Pender participated in a video-recorded
interview where he made explicit verbal threats towards staff, resulting in a new
charge for violating prohibited act *.005, threatening another with bodily harm.
Pender did not attend the hearing for this charge and was found guilty in absentia
On March 20, 2023, Pender, through substituted counsel, submitted an
administrative appeal, arguing: the delay in adjudicating the first charge
warranted dismissal; the aggregate sanctions imposed on all the charges violated
Free access — add to your briefcase to read the full text and ask questions with AI
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-2713-22
ANDREW PENDER,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. ___________________________
Submitted May 15, 2025 – Decided June 2, 2025
Before Judges Mawla and Walcott-Henderson.
On appeal from the New Jersey Department of Corrections.
Andrew Pender, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Leo R. Boerstoel, Deputy Attorney General, on the brief).
PER CURIAM Andrew Pender, an inmate in New Jersey State Prison, appeals from a
March 27, 2023 final agency decision of the Department of Corrections (DOC)
upholding a finding of guilt as to various disciplinary charges incurred over a
two-month period, following a hearing. Pender challenges the sanctions
imposed, arguing they are excessive, arbitrary, and capricious, and a violation
of his due process rights under N.J.A.C. 10A:4-9.8(c). Perceiving no merit to
his arguments, we affirm.
On November 17, 2022, Pender was involved in a fight in the prison mess
hall. He was charged with violations under N.J.A.C. 10A:4-4.1(a) for prohibited
acts *.004 (fighting with another person) and *.306 (conduct that disrupts or
interferes with the security or orderly running of the facility). According to
Pender, "he admitted he was guilty of fighting and accepted responsibility for
his actions," with respect to this charge. Although initially charged on
November 17, 2022, Pender's disciplinary hearing did not commence until
February 2, 2023, seventy-seven days later.
Thereafter, Pender was involved in various other infractions resulting in
additional charges mostly related to his disruptive behaviors, which are set forth
in the following chart submitted by Pender with the State's consent.
A-2713-22 2 After the November 17, 2022 charge, Pender was placed on "constant
watch" for mental health monitoring but later cleared for the disciplinary hearing
process to commence on December 20, 2022. The disciplinary hearings
commenced on January 3, 2023, were adjourned until February 2, 2023, and
concluded on March 15, 2023.
At the January 3, 2023 hearing, the hearing officer initially considered the
following charges: *.253 (engaging in or encouraging a group demonstration or
A-2713-22 3 work stoppage), *.256 (refusing to obey an order of any staff member), and
*.306 (conduct that disrupts or interferes with the security or orderly running of
the correctional facility) for his refusal to exit a recreation module and for
encouraging other inmates to do the same. DOC did not pursue infractions *.253
and *.306. Due to delays in obtaining video evidence of the incident and to
allow for confrontation with the arresting officers, the hearing was delayed until
February 2, 2023. Pender was ultimately found guilty of violation *.256.
Prior to the start of the February hearing, on November 30, 2022, Pender
was charged with violation *.502 (interfering with the taking of count) for
locking his door with clothing and failing to respond to the routine inmate
attendance count. He was found guilty of violating *.502 on March 15, 2023.
On the same day, Pender was also charged with violation *.152
(destroying, altering, or damaging government property or the property of
another person), for destroying a unit phone in his cell. The first portion of the
hearing occurred on January 3, 2023, and the second portion occurred on March
15, 2023, to allow DOC time to procure the video footage and adverse witnesses.
Pender had initially requested a right to confront witnesses but later declined
that right on March 15, 2023. He was found guilty of violation *.152.
A-2713-22 4 On December 1, 2022, Pender refused to move to the rear of his housing
unit, refused to respond to the routine inmate "count" and was blocking the view
of his window. He was charged on that date with violation *.501 (failure to
stand count). Following the hearing, Pender was found guilty of this charge.
On December 2, 2022, while was being brought into an interview room,
Pender ran towards and attempted to attack mental-health doctors, resulting in a
charge of violation *.803/*.002 (attempting to commit an assault). His hearing
related to this charge was originally set for January 3, 2023, but was postponed
until February 2, 2023, to allow for time to collect video footage and to grant
his confrontation requests. He was ultimately found guilty of this prohibited act
on February 2, 2023.
On December 3, 2022, Pender was being escorted by an officer from the
nursing station when he struck the officer with his elbow and grabbed the
officer's leg. He was subsequently charged with prohibited act *.002 (assaulting
any person). The hearing on that charge also commenced on January 3, 2023,
and was completed on February 2, 2023, after a continuation to allow for the
collection and presentation of the video evidence and to consider Pender's
request to confront adverse witnesses. Because the video supported the charge,
A-2713-22 5 Pender's request for confrontation was denied. He was subsequently found
guilty of this charge.
On January 11, 2023, two separate officers witnessed Pender throw a
brown-and-yellow liquid onto an officer who was serving dinner and collecting
trash, some of which ended up in the officer's mouth. He was charged with
prohibited act *.012 (throwing bodily fluid at any person). Pender attended the
hearing for one of the charges but not the other. At the hearing he attended,
Pender requested video footage and confrontation. The hearing was delayed
from February 2, 2023 to March 22, 2023, to permit Pender access to the video
footage and witnesses. 1 DOC denied confrontation during the latter hearing, as
the video footage supported the charge. The charges were combined, and Pender
was found guilty.
On January 15, 2023, Pender grabbed a nurse's arm and attempted to pull
her through the window, as she was serving him medication. Pender stated to
the nurse "don't play me, b[****]" while laughing. He was charged with
violation *.002 (assaulting any person). He refused to attend this hearing and
was found guilty in absentia on February 2, 2023.
1 The record reflects a dispute as to the hearing date. DOC's record states March 22, 2023, while the final agency decision reflects a hearing date of March 15, 2023. A-2713-22 6 Finally, on January 19, 2023, Pender participated in a video-recorded
interview where he made explicit verbal threats towards staff, resulting in a new
charge for violating prohibited act *.005, threatening another with bodily harm.
Pender did not attend the hearing for this charge and was found guilty in absentia
On March 20, 2023, Pender, through substituted counsel, submitted an
administrative appeal, arguing: the delay in adjudicating the first charge
warranted dismissal; the aggregate sanctions imposed on all the charges violated
the Isolated Confinement Restriction Act (ICRA), N.J.S.A. 30:4-82.5 to 82.11;
and he should be extended leniency due to his mental health issues .
On March 27, 2023, DOC issued its final agency decision upholding all
findings and sanctions. In its written decision, DOC explained "[t]here was
compliance with [N.J.A.C.] 10A provisions on inmate discipline[,] which
prescribe procedural due process safeguards." The sanctions were appropriate
given Pender's significant disciplinary history; delays were significantly
impacted by Pender's "repeated violent and inappropriate actions around the
times of his hearings"; "[f]acts were not misinterpreted in this case and
substantial evidence was relied upon by the [h]earing [o]fficer." The DOC also
concluded, "[t]here is no violation of [ICRA] as you are able to write family
A-2713-22 7 [and] friends; stamps can be purchased even with [the] loss of luxury item[s
from the] canteen, and you are still able to utilize the phone . . . [to contact the
special investigation division] and your attorney." The written order further
notes that Pender's mental health history was reviewed and considered. This
appeal followed.
On November 14, 2024, we granted DOC's motion seeking a remand to
correct procedural issues in the hearings previously conducted and to complete
re-hearings. Upon remand, DOC allowed Pender "the opportunity to cross-
examine the witnesses, or provide a more thorough reasoning in each specific
instance for why confrontation is not possible"; new hearings for each charge
during which they would endeavor to ensure valid confrontation requested are
granted; reconsider all sanctions; and ensure the sanctions and any delays are
properly explained in the record.
On rehearing, Pender pleaded guilty to charges of prohibited acts *.004
and *.012 (fighting with another person and throwing bodily fluid at another
person, respectively). However, he entered no plea on the charge for prohibited
act *.803/*.002 (attempting to commit an assault), declined to view the video
documenting the incident, did not make any statement, and declined any
A-2713-22 8 confrontation. On these charges, the hearing officer found Pender guilty, but
reduced his loss of phone, TV and radio privileges from 300 to 150 days.
Pender also did not enter a plea on the charge of prohibited act *.002
(assaulting any person) and again declined to review the video or to confront
witnesses. As to this charge, the hearing officer reduced his loss of phone, TV
and radio privileges from 300 to 210 days.
DOC dismissed the remaining three charges for prohibited acts *.502,
*.256, and *.005. Thus, on rehearing, Pender was found guilty of five charges
and his release date from the restorative housing unit was reduced from March
16, 2026 to July 1, 2024.
I.
"The scope of our review of an agency decision is limited." Mejia v. N.J.
Dep't of Corr., 446 N.J. Super. 369, 376 (App. Div. 2016). In reviewing an
agency decision, we determine "(1) whether [it] conforms with relevant law; (2)
whether [it] is supported by substantial credible evidence in the record; and (3)
whether, in applying the law to the facts, the administrative agency clearly erred
in reaching its conclusion." Conley v. N.J. Dep't of Corr., 452 N.J. Super. 605,
613 (App. Div. 2018) (citing In re Stallworth, 208 N.J. 182, 194 (2011)). "We
will disturb an agency's adjudicatory decision only upon a finding that the
A-2713-22 9 decision is 'arbitrary, capricious[,] or unreasonable,' or is unsupported 'by
substantial credible evidence in the record as a whole.'" Blanchard v. N.J. Dep't
of Corr., 461 N.J. Super. 231, 237-38 (App. Div. 2019) (quoting Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The challenger of the agency
decision bears the burden of proving the decision was "arbitrary, unreasonable[,]
or capricious." In re M.M., 463 N.J. Super. 128, 136 (App. Div. 2020) (quoting
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)).
We are not bound by an agency's statutory interpretation or other legal
determinations and review those de novo. Conley, 452 N.J. Super. at 613.
In an appeal from a final DOC decision in a prisoner disciplinary matter,
we consider whether the record contains substantial evidence to support the
decision the inmate committed the prohibited act. Blanchard, 461 N.J. Super. at
237-38; see also N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary
hearing shall be based upon substantial evidence."). "Substantial evidence has
been defined alternatively as 'such evidence as a reasonable mind might accept
as adequate to support a conclusion,' and 'evidence furnishing a reasonable basis
for the agency's action.'" Blanchard, 461 N.J. Super. at 238 (quoting Figueroa
v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010)).
A-2713-22 10 When reviewing a prison disciplinary matter, we also consider whether
DOC followed the regulations adopted to afford inmates procedural due process.
See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139
N.J. 212, 220-22 (1995). "Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due [to] a defendant in such
proceedings does not apply." Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987).
An inmate's more limited procedural rights, initially set forth in Avant v.
Clifford,2 are codified in a comprehensive set of regulations. See N.J.A.C.
10A:4-9.1 to -9.28. Those regulations "strike the proper balance between the
security concerns of the prison, the need for swift and fair discipline, and the
2 In Avant, our Supreme Court defined these protections, to include:
(a) written notice of the claimed violations . . . ; (b) disclosure . . . of evidence . . . ; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body . . . members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons [for acting].
67 N.J. 496, 523 (1975) (omissions in original) (quoting Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972)). A-2713-22 11 due-process rights of the inmates." Williams v. Dep't of Corr., 330 N.J. Super.
197, 203 (App. Div. 2000) (citing McDonald, 139 N.J. at 202).
Pender challenges the sanctions imposed by the hearing officer and upheld
by DOC following the rehearing, arguing: the hearing officer violated his due
process rights by refusing to dismiss several charges after "egregious delays"
without providing a statement of reasons for the delay in the record; imposed
sanctions in violation of the legislative intent of ICRA; and the imposition of a
combination of other sanctions (loss of phone, canteen and J-pay email) is
excessive and draconian and violates ICRA because combined, they isolate him
from all forms of communication, including communication with the courts. He
seeks vacatur of the hearing officer's determination of guilt and expungement of
the "entire matter from this record."
ICRA provides,
a. The use of isolated confinement in this State's correctional facilities should be restricted to ensure the safe and humane operation of these facilities, consistent with the New Jersey Constitution, the laws and public policies of this State, the mission of the correctional system, evolving medical knowledge, and human rights standards of decency.
b. Isolated confinement should only be used when necessary, and should not be used against vulnerable populations or under conditions or for time periods that
A-2713-22 12 foster psychological trauma, psychiatric disorders, or serious, long-term damage to an isolated person's brain.
c. The standards established in this act should apply to all persons detained in correctional facilities under the jurisdiction of this State or any subdivision, regardless of the civil or criminal nature of the charges against them.
d. Citing the devastating and lasting psychological consequences of solitary confinement on persons detained in correctional facilities, President Obama adopted reforms in January 2016 to reduce its use in federal correctional facilities, including banning restrictive housing for low-level offenders and juveniles; decreasing the maximum length of time an inmate may be held in restricted housing from 365 days to [sixty] days; and increasing time spent outside the cell for inmates held in restrictive housing.
[N.J.S.A. 30:4-82.6.]
Isolated confinement is defined in ICRA as the
confinement of an inmate in a correctional facility, pursuant to disciplinary, administrative, protective, investigative, medical, or other classification, in a cell or similarly confined holding or living space, alone or with other inmates, for approximately [twenty] hours or more per day in a State correctional facility or [twenty- two] hours or more per day in a county correctional facility, with severely restricted activity, movement, and social interaction.
[N.J.S.A. 30:4-82.7.]
A-2713-22 13 We reject Pender's due process arguments because as the record shows,
he received notice of each charge and was afforded the assistance of a counsel
substitute at the rehearing. Moreover, the record confirms that much of the delay
in proceeding with the original hearing was due to Pender's repeated
infractions—seven additional charges spanning a two-month period—his
requests for time to confront witnesses, and the need to secure video evidence.
Against this backdrop, we are satisfied Pender was afforded notice of the
charges against him and the opportunity to be heard and to confront witnesses,
if he so chose. Avant, 67 N.J. at 523. Thus, there was no violation of his due
process rights.
We reject the argument the aggregate sanctions imposed by the hearing
officer and upheld by DOC are egregious or draconian, as Pender claims, nor do
we perceive any violation of ICRA. Pender makes no challenge to DOC's
finding of guilt as to the charges against him, only that the aggregate sanctions
imposed resulted in his isolation in violation of ICRA, which provides that an
inmate shall not be placed in isolated confinement for more than twenty
consecutive days, or more than thirty days during any sixty-day period.
However, Pender was not placed in solitary confinement. His claim is
that by denying him phone privileges and lengthy TV and radio restrictions, and
A-2713-22 14 placing him in vulnerable population pre-hearing adjudication for 108
consecutive days, he was in "de facto isolated confinement . . . for a time longer
than the law allows" lacks merit.
Pender maintains his confinement far exceeded ICRA's temporal
perimeters and was even more "egregious" given his serious mental illness. He
seeks dismissal of all charges based on DOC's failure to adhere to the time limits
prescribed in N.J.A.C. 10A:4-9.8, requiring inmates confined in prehearing
disciplinary housing to receive a hearing within three days. We are not
persuaded.
The record following the November 17, 2022 fighting incident shows
DOC authorized Pender's placement in vulnerable population restorative
housing for his protection. The placement order expressly provides that as "a
member of a vulnerable population," Pender is "ineligible for [p]re-[h]earing
[d]isciplinary housing." Contrary to Pender's assertions, he was not placed in
disciplinary housing, thus, N.J.S.A. 10A:4-9.8(c) does not apply. Further,
subsection (b) allows for reasonable postponements of disciplinary hearings,
and there is no support for Pender's argument that dismissal of the charges is
warranted based on the failure to conduct a hearing within seven days. N.J.S.A.
10A:4-9.8(b). As previously noted, several of the initial hearing dates were
A-2713-22 15 adjourned as Pender continued to accumulate new charges and to obtain video
evidence and testimony, some at his request. Moreover, adjournments are
within the discretion of the hearing officer, N.J.A.C. 10A:4-9.9, and we discern
no abuse of discretion in adjourning the disciplinary hearing to ensure the
inclusion of relevant evidence.
Additionally, DOC specifically sought a remand to address deficiencies
in the initial hearing with the express intention of: allowing Pender "the
opportunity to cross-examine the witnesses, or provide a more thorough
reasoning in each specific instance for why confrontation is not possible;" hold
new hearings for each charge during which they would endeavor to ensure valid
confrontation requests are granted; reconsider all sanctions; and ensure the
sanctions and any delays, are properly explained in the record. And, although
Pender did not appear at the rehearing, he was represented by a counsel
substitute who provided a statement in support of Pender as to various charges,
explaining his actions were likely due to his mental health distress.
Significantly, we note that following the rehearing, the hearing officer
dismissed three charges *.256 and *.502, and *.005 (refusing to obey, interfering
with the taking of counts, and threatening another with bodily harm), finding
insufficient evidence to support these charges as no video was included in the
A-2713-22 16 evidence. Accordingly, the aggregate sanctions of loss of phone, TV, and radio
privileges were further reduced.
Lastly, addressing Pender's argument DOC violated the legislative intent
of ICRA by placing him in isolation pending his disciplinary hearing, we note
there is no dispute he had been classified as a vulnerable population inmate and
confined following the November 17, 2022 fight in the mess hall. The record,
however, does not support his contention that his confinement equates to solitary
confinement in violation of ICRA, as he cannot show that his activities were
"severely restricted" consistent with N.J.S.A. 30:4-82.7. In fact, Pender's
records show that he was permitted to participate in various courses and
activities that are not afforded to inmates in solitary confinement. Thus, we are
not convinced DOC violated ICRA by classifying Pender as a vulnerable
population inmate given his mental health diagnosis and repeated assaultive
behaviors. Rather, the time spent in the restorative housing unit did not violate
ICRA and was appropriately tied to his need for protection.
To the extent we have not addressed any other argument raised by Pender,
it is because Pender did not first present the argument to DOC, despite his
opportunity to do so at the initial hearing or subsequent rehearing. J.K. v. N.J.
State Parole Bd., 247 N.J. 120, 138 n.6 (2021). The other reason is because the
A-2713-22 17 argument does not have sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2713-22 18