NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5284-17T4
JOHN ARIAS,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. ____________________________
Argued October 3, 2019 – Decided October 25, 2019
Before Judges Fisher, Gilson, and Rose.
On appeal from the New Jersey Department of Corrections.
Tess Meiling Borden argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys; Tess Meiling Borden, Jeanne M. LoCicero, and Alexander R. Shalom, on the briefs).
Suzanne Marie Davies, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Suzanne M. Davies, on the brief). PER CURIAM
John Arias, an inmate in state prison, appeals from a final determination
of the New Jersey Department of Corrections (Department), which upheld a
finding of guilt and sanctions imposed for the prohibited act of "lying, providing
a false statement to a staff member," in violation of N.J.A.C. 10A:4-4.1(a)(4)(v).
Arias was found guilty of making false allegations in a grievance he filed. We
reverse because there was no substantial credible evidence in the record
identifying the specific lie or false statements made or supporting the conclusion
that the statements were false or lies. Instead, the record only shows that the
Department concluded that the allegations made by Arias were not substantiated.
I.
The discipline charges arose out of an inmate grievance. We take the facts
from the written record, noting that no witnesses testified at the disciplinary
hearing.
On May 14, 2018, Arias submitted an inmate grievance that requested he
be reassigned to another housing unit based on alleged "threats, harassment,
verbal abuse, [and] illegal retaliation" by two corrections officers (the May 14
Grievance). The May 14 Grievance referenced an earlier grievance Arias had
filed, which also sought a housing unit reassignment. The May 14 Grievance
A-5284-17T4 2 also alleged that Arias had previously reported a safety concern based on
"racist[] comments" made by the two officers. In total, the May 14 Grievance
stated:
I was told I will be moved to another Unit after I reported safety concerns in Unit 3DD. And as of this date I am still waiting to be moved.
Please see my Inquiry #719915 in which I was given a response that I will be moved to another Unit, after I reported my safety issue in Unit 3DD including racist[] comments by [two] officers [].
Today the problems have gotten worse and on a daily basis they include threats, harassment, verbal abuse, illegal retaliation, being denied law library and phone calls by these [two] officers.
Please remove me from the custody of these officers by moving me to a different housing Unit and under the custody of different officers, where [the two officers] do not work and CANNOT carry out their threats. Most importantly, I request to be moved to a unit where my safety is not threatened by abusive officers.
Thank you for your prompt solution and response.
The May 14 Grievance was forwarded to the Special Investigations
Division (SID). Two SID officers then interviewed Arias and video recorded
that interview. SID also prepared a report concerning its investigation. SID
concluded that Arias could not identify any specific racist comments made by
the officers. SID also concluded that Arias had failed to provide any valid
A-5284-17T4 3 examples of misconduct or any allegations that could be investigated.
Accordingly, SID decided it did not need to interview the two officers or anyone
else. Finally, SID decided to charge Arias with prohibited act *.704,
"perpetrating frauds, . . . [.]" N.J.A.C. 10A:4-4.1(a)(2)(xxxiv).
On May 17, 2018, Arias was served with a disciplinary report charging
him with perpetrating a fraud. The infraction was described as: "An
investigation determined that inmate Arias submitted numerous grievances
which contained false allegations in an attempt to manipulate his housing
assignment."
On May 21, 2018, a hearing officer conducted a disciplinary hearing. No
witnesses testified at the hearing. Instead, the hearing officer reviewed
documents and materials, which included the May 14 Grievance, the SID report,
and the video of the interview of Arias by the SID officers. The latter two pieces
of evidence were deemed confidential and they were not shown or provided to
Arias.1
Arias appeared at the hearing with counsel substitute. The hearing officer
reported that the only statement made by Arias was: "I did not lie. I only wrote
1 While this appeal was pending, counsel for Arias and the Department agreed that the SID report and the video were not confidential and those materials have been filed as part of the record in this matter. A-5284-17T4 4 a grievance." Arias also requested that four inmates be called to testify as
witnesses, but all of those potential witnesses declined to give a statement or
testify.
The hearing officer amended the charges against Arias to be a violation of
prohibited act .305, lying, providing a false statement to staff. Thereafter, the
hearing officer found Arias guilty of that amended charge. In explaining that
finding, the hearing officer stated:
Upon investigation by SID, it was determined [inmate] grievances . . . contained false allegations in an attempt to manipulate his housing. [U]pon review of all evidence provided, [hearing officer] believes [prohibited act] 305 is more appropriate [and] amended. [Inmate] plead no plea. The [witnesses] he requested did not assist him ([s]ee D1-D4). He did not wish to provide/request anything further to support his claim or discredit staff reports. All relied on to determine guilt.
Arias was then sanctioned to forty days loss of commutation time, thirty
days administrative segregation (suspended for sixty days), thirty days
suspension of JPay (email only), and fifteen days loss of recreational privileges.
Arias administratively appealed. On June 5, 2018, the Department, acting
through an assistant superintendent, upheld the disciplinary finding of guilt and
the sanctions imposed. In rendering the final agency decision, the Department
A-5284-17T4 5 My review of this issue reveals that there was compliance with the New Jersey Administrative Code on inmate discipline which prescribes procedural safeguards. The charges were adjudicated according[] to the code. The preponderance of evidence presented supports the guilty decision of the hearing officer.
II.
On this appeal, Arias makes three arguments. First, he contends that there
was no substantial credible evidence that he lied or provided false statements.
Second, he argues that the disciplinary decision violates his constitutional right
to petition the government. Finally, he alleges that his constitutional due process
rights were violated because he was not given access to the confidential
evidence. We need only reach the first argument, because the record does not
contain substantial credible evidence that Arias lied or provided false statements
to staff.
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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-5284-17T4
JOHN ARIAS,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. ____________________________
Argued October 3, 2019 – Decided October 25, 2019
Before Judges Fisher, Gilson, and Rose.
On appeal from the New Jersey Department of Corrections.
Tess Meiling Borden argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys; Tess Meiling Borden, Jeanne M. LoCicero, and Alexander R. Shalom, on the briefs).
Suzanne Marie Davies, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Suzanne M. Davies, on the brief). PER CURIAM
John Arias, an inmate in state prison, appeals from a final determination
of the New Jersey Department of Corrections (Department), which upheld a
finding of guilt and sanctions imposed for the prohibited act of "lying, providing
a false statement to a staff member," in violation of N.J.A.C. 10A:4-4.1(a)(4)(v).
Arias was found guilty of making false allegations in a grievance he filed. We
reverse because there was no substantial credible evidence in the record
identifying the specific lie or false statements made or supporting the conclusion
that the statements were false or lies. Instead, the record only shows that the
Department concluded that the allegations made by Arias were not substantiated.
I.
The discipline charges arose out of an inmate grievance. We take the facts
from the written record, noting that no witnesses testified at the disciplinary
hearing.
On May 14, 2018, Arias submitted an inmate grievance that requested he
be reassigned to another housing unit based on alleged "threats, harassment,
verbal abuse, [and] illegal retaliation" by two corrections officers (the May 14
Grievance). The May 14 Grievance referenced an earlier grievance Arias had
filed, which also sought a housing unit reassignment. The May 14 Grievance
A-5284-17T4 2 also alleged that Arias had previously reported a safety concern based on
"racist[] comments" made by the two officers. In total, the May 14 Grievance
stated:
I was told I will be moved to another Unit after I reported safety concerns in Unit 3DD. And as of this date I am still waiting to be moved.
Please see my Inquiry #719915 in which I was given a response that I will be moved to another Unit, after I reported my safety issue in Unit 3DD including racist[] comments by [two] officers [].
Today the problems have gotten worse and on a daily basis they include threats, harassment, verbal abuse, illegal retaliation, being denied law library and phone calls by these [two] officers.
Please remove me from the custody of these officers by moving me to a different housing Unit and under the custody of different officers, where [the two officers] do not work and CANNOT carry out their threats. Most importantly, I request to be moved to a unit where my safety is not threatened by abusive officers.
Thank you for your prompt solution and response.
The May 14 Grievance was forwarded to the Special Investigations
Division (SID). Two SID officers then interviewed Arias and video recorded
that interview. SID also prepared a report concerning its investigation. SID
concluded that Arias could not identify any specific racist comments made by
the officers. SID also concluded that Arias had failed to provide any valid
A-5284-17T4 3 examples of misconduct or any allegations that could be investigated.
Accordingly, SID decided it did not need to interview the two officers or anyone
else. Finally, SID decided to charge Arias with prohibited act *.704,
"perpetrating frauds, . . . [.]" N.J.A.C. 10A:4-4.1(a)(2)(xxxiv).
On May 17, 2018, Arias was served with a disciplinary report charging
him with perpetrating a fraud. The infraction was described as: "An
investigation determined that inmate Arias submitted numerous grievances
which contained false allegations in an attempt to manipulate his housing
assignment."
On May 21, 2018, a hearing officer conducted a disciplinary hearing. No
witnesses testified at the hearing. Instead, the hearing officer reviewed
documents and materials, which included the May 14 Grievance, the SID report,
and the video of the interview of Arias by the SID officers. The latter two pieces
of evidence were deemed confidential and they were not shown or provided to
Arias.1
Arias appeared at the hearing with counsel substitute. The hearing officer
reported that the only statement made by Arias was: "I did not lie. I only wrote
1 While this appeal was pending, counsel for Arias and the Department agreed that the SID report and the video were not confidential and those materials have been filed as part of the record in this matter. A-5284-17T4 4 a grievance." Arias also requested that four inmates be called to testify as
witnesses, but all of those potential witnesses declined to give a statement or
testify.
The hearing officer amended the charges against Arias to be a violation of
prohibited act .305, lying, providing a false statement to staff. Thereafter, the
hearing officer found Arias guilty of that amended charge. In explaining that
finding, the hearing officer stated:
Upon investigation by SID, it was determined [inmate] grievances . . . contained false allegations in an attempt to manipulate his housing. [U]pon review of all evidence provided, [hearing officer] believes [prohibited act] 305 is more appropriate [and] amended. [Inmate] plead no plea. The [witnesses] he requested did not assist him ([s]ee D1-D4). He did not wish to provide/request anything further to support his claim or discredit staff reports. All relied on to determine guilt.
Arias was then sanctioned to forty days loss of commutation time, thirty
days administrative segregation (suspended for sixty days), thirty days
suspension of JPay (email only), and fifteen days loss of recreational privileges.
Arias administratively appealed. On June 5, 2018, the Department, acting
through an assistant superintendent, upheld the disciplinary finding of guilt and
the sanctions imposed. In rendering the final agency decision, the Department
A-5284-17T4 5 My review of this issue reveals that there was compliance with the New Jersey Administrative Code on inmate discipline which prescribes procedural safeguards. The charges were adjudicated according[] to the code. The preponderance of evidence presented supports the guilty decision of the hearing officer.
II.
On this appeal, Arias makes three arguments. First, he contends that there
was no substantial credible evidence that he lied or provided false statements.
Second, he argues that the disciplinary decision violates his constitutional right
to petition the government. Finally, he alleges that his constitutional due process
rights were violated because he was not given access to the confidential
evidence. We need only reach the first argument, because the record does not
contain substantial credible evidence that Arias lied or provided false statements
to staff.
Our review of agency action is limited. "An appellate court ordinarily
will reverse the decision of an administrative agency only when the agency's
decision is 'arbitrary, capricious or unreasonable or [] is not supported by
substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of
Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting
Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t
is settled that '[a]n administrative agency's interpretation of statutes and
A-5284-17T4 6 regulations within its implementing and enforcing responsibility is ordinarily
entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.
Super. 52, 56 (App. Div. 2001) (second alteration in original) (quoting In re
Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).
The Department is given broad discretion in matters regarding the
administration of a prison facility, including disciplinary infractions by
prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div.
1999).
The regulations governing inmate disciplinary proceedings state: "[a]
finding of guilt at a disciplinary hearing shall be based upon substantial evidence
that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a).
Substantial evidence is "such evidence [that] a reasonable mind might accept as
adequate to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35 N.J.
358, 376 (1961) (citations omitted). In other words, it is "'evidence furnishing
a reasonable basis for the agency's action.'" Figueroa v. N.J. Dep't of Corr., 414
N.J. Super. 186, 192 (App. Div. 2010) (quoting McGowan v. N.J. State Parole
Bd., 347 N.J. Super. 544, 562 (App. Div. 2002)).
Here, there was no substantial credible evidence in the record that Arias
lied or provided a false statement to staff. Neither the Department nor the
A-5284-17T4 7 hearing officer identified the specific statement made by Arias that was deemed
to be a lie or false. More importantly, neither the Department nor the hearing
officer made an independent determination that Arias lied or provided a false
statement. Instead, a review of the record establishes that the Department relied
on the hearing officer and the hearing officer in turn relied on the conclusion by
SID. Significantly, the hearing officer did not hear testimony from anyone from
SID. Instead, the hearing officer relied on the SID report and the video
interview.
We fully appreciate the Department's concern regarding inmates who
make false allegations against staff. The procedures for imposing discipline,
however, are well established. The initial burden is on the Department to show
substantial credible evidence that a prohibited act has taken place. See N.J.A.C.
10A:4-9.15(a); see also Figueroa, 414 N.J. Super. at 188 (recognizing that the
Department bears the burden of persuasion to sustain a charge of prohibited
acts). The hearing officer and the Department never made a credibility finding
concerning any statement made by Arias. Instead, the hearing officer and the
Department improperly shifted the burden to Arias with the hearing officer
reasoning that Arias offered no evidence to contradict the "staff reports."
Just as importantly, the SID report did not identify a specific statement
A-5284-17T4 8 made by Arias that was deemed to be a lie or false. Instead, it found that Arias
had not substantiated his allegations. That Arias did not substantiate the
allegations in his grievance does not automatically lead to the conclusion that
he lied. Lying or providing a false statement is an intentional act. The
Department was required to show substantial credible evidence that there was
an intentional lie or false statement. Here, the Department failed to make that
showing. Accordingly, the finding of guilt of prohibited act .305 is vacated and
the loss of forty days commutation time is to be restored.
Reversed and vacated. We do not retain jurisdiction.
A-5284-17T4 9