CARLOS GUERRERO VS. NEW JERSEY DEPARTMENT OF CORRECTIONS(NEW JERSEY DEPARTMENT OF CORRECTIONS)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 8, 2017
• Docket: A-0716-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0716-15T4

CARLOS GUERRERO,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent. __________________________________

Submitted July 25, 2017 – Decided August 8, 2017

Before Judges Ostrer and Leone.

On appeal from the New Jersey Department of Corrections.

Carlos Guerrero, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Carlos Guerrero, at relevant times an inmate at

Bayside State Prison, appeals from a Department of Corrections

(Department) disciplinary decision. A hearing officer found that Guerrero committed prohibited act *.004, "fighting with another

person . . . ." N.J.A.C. 10A:4-4.1(a) (2015).1 The assistant

superintendent upheld the decision after an administrative appeal.

We affirm.

On August 18, 2015, a senior corrections officer observed an

inmate named Quintero punch Guerrero, knocking him down. Guerrero

then stood up and began to fight Quintero. The two tussled on the

floor, while officers repeatedly commanded them to stop fighting

and to separate. They eventually complied, and both suffered

minor injuries. The following day, Guerrero was served with

disciplinary charges, alleging he violated prohibited act *.004.2

Guerrero waived his right to twenty-four hours' notice and

the disciplinary hearing took place the same day. Assisted by a

counsel substitute, Guerrero stated he acted in self-defense,

although he acknowledged he pushed back against Quintero. Relying

on the senior corrections officer's report, the hearing officer

concluded: "Insufficient evidence to support that inmate used self

1 Under the regulation then in effect, the infraction was punishable by up to a year of administrative segregation, as well as the loss of up to 365 calendar days of commutation time. N.J.A.C. 10A:4-5.1(a) (2015). 2 He was also charged with prohibited act *.306, "conduct which disrupts or interferes with the security or orderly running of the correction facility," N.J.A.C. 10A:4-4.1(a) (2015), but that charge was dismissed.

2 A-0716-15T4 defense. Inmate did not attempt to retreat. Evidence supports

the charge." The hearing officer concluded that Guerrero should

be held accountable and that violence among inmates should be

deterred. Guerrero received 180 days of administrative

segregation and 180 days loss of commutation time.

In his administrative appeal, Guerrero conceded that the

"[e]vidence presented supports finding of guilty to *.004."

However, he sought reduced sanctions based on the circumstance of

the fight, claiming that he was attacked. The assistant

superintendent upheld the decision and stated, "No leniency will

be afforded to you. Uphold all sanctions."

Guerrero raises the following points for our consideration:

POINT I

THE DECISION OF THE PRISON ADMINISTRATOR WAS NOT ADEQUATELY SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE ADMINISTRATIVE RECORD. THE DECISION WAS AT ODDS WITH THE AUTHOR OF THE CHARGE AND THE APPELLANT'S SELF- DEFENSE ARGUMENT IN VIOLATION OF THE APPELLANT'S RIGHT TO DUE PROCESS.

POINT II

THE HEARING WAS HELD IN VIOLATION OF NUMEROUS CODES OF TITLE 10A WHICH GOVERNS THE DISCIPLINARY PROCESS.

POINT III

THE APPELLANT SUBMITS THAT THE DISCIPLINARY HEARING OFFICER AND THE ADMINISTRATOR FAILED

3 A-0716-15T4 TO ADEQUATELY REVIEW OR CONSIDER THE RECORD IN DISMISSING APPELLANT'S PLEA FOR LENIENCY.

Guerrero's appeal lacks merit. He raises arguments that he

did not raise below, or he expressly waived. See Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973). As for his weight-of-

the-evidence argument, he conceded on administrative appeal that

the evidence supported the charge. In any event, we discern

sufficient credible evidence in the record to support the finding

that Guerrero failed to retreat or to cease fighting when commanded

to do so; thus, self-defense was not available. See Henry v.

Rahway State Prison, 81 N.J. 571, 579-80 (1980) (stating that the

appellate court shall disturb an administrative decision "only if

it is arbitrary, capricious or unreasonable or it is not supported

by substantial evidence in the record as a whole"); see also

N.J.A.C. 10A:4-9.13(f) (setting forth six prerequisites to a self-

defense claim, including "[t]he inmate had no reasonable

opportunity or alternative to avoid the use of force, such as, by

retreat or alerting correctional facility staff").

Guerrero was also not denied his procedural rights regarding

notice, since he expressly waived them before the hearing. As for

the sanctions, Guerrero claimed below that he was entitled to

leniency because he was struck first. Now, he argues he is

entitled to leniency "in light of [his] institutional record."

4 A-0716-15T4 Aside from the fact that he did not raise that point before the

assistant superintendent, Guerrero's face sheet report and

progress notes disclose twelve prior findings of disciplinary

violations, including multiple findings of guilt for fighting,

assault, threatening conduct, and refusing to obey orders. We

recognize that neither the hearing officer nor the assistant

superintendent provided inmate-specific reasons for the selection

of the sanctions, which included the middle of the range for

administrative segregation and loss of commutation time. Cf.

Mejia v. N.J. Dep't of Corrs., 446 N.J. Super. 369, 378-79 (App.

Div. 2016) (stating that a hearing officer should articulate the

reasons for imposing a particular sanction). However, in view of

Guerrero's extensive disciplinary record, we conclude the sanction

was neither arbitrary, capricious, nor unreasonable. See Henry,

supra, 81 N.J. at 580.

Affirmed.

5 A-0716-15T4