NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0710-13T4
RIGOBERTO MEJIA, APPROVED FOR PUBLICATION Appellant, August 11, 2016
v. APPELLATE DIVISION
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. _________________________
Argued June 16, 2016 – Decided August 11, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from the New Jersey Department of Corrections.
Alexander Shalom argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys; Mr. Shalom, Edward Barocas, Jeanne LoCicero, and Rebecca Livengood, on the brief; Rigoberto Mejia, on the pro se brief).
Joseph Micheletti, Assistant Chief Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Dianne M. Moratti, Deputy Attorney General, and Alex J. Zowin, Deputy Attorney General, on the briefs).
The opinion of the court was delivered by
KOBLITZ, J.A.D. In this prison disciplinary appeal, Rigoberto Mejia argues
that the sanction of three and one-half years in administrative
segregation was improper. Mejia is a prisoner at New Jersey
State Prison currently serving a sentence with a mandatory
minimum of forty years imposed in 1995 for murder and associated
crimes. Mejia was originally sentenced to death for the
shooting of another undocumented worker over $750 in December
1991.1 Mejia, who is now fifty-seven years old and whose first
eligibility for parole is in 2031, appeals from an August 8,
2013 disciplinary action taken against him by the New Jersey
1 In State v. Mejia, 141 N.J. 475, 485-86 (1995), our Supreme Court reversed Mejia's death penalty sentence, holding jury instructions were required, in the guilt phase, on the ultimate outcome of a conviction of murder with the intent to kill– capital murder—versus murder with the intent to cause serious bodily injury—which is not death-eligible. The Court held the instruction should advise the jury that it could return a non- unanimous guilty verdict as to the mental state of a defendant who the jury unanimously found had committed a homicide. Id. at 486. If the jury was not unanimous as to the mens rea, the defendant would then not be eligible for the death penalty. Ibid. The holding in Mejia was no longer authoritative following the 1992 New Jersey constitutional amendment. See State v. Cooper, 151 N.J. 326, 376-77 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). The Legislature later repealed the death penalty in 2007. See State v. Troxell, 434 N.J. Super. 502, 510 (App. Div.) (explaining the legislative action), certif. denied, 221 N.J. 285 (2014).
2 A-0710-13T4 Department of Corrections (DOC).2 We reverse the sanction
imposed because it was arbitrary and unreasonable.
On July 15, 2013, Mejia threw a bucket of hot water, urine
and feces on a corrections officer who was walking by his cell.
The substance also made contact with another corrections officer
who was below Mejia's cell. Mejia claimed he had done so
because he was fearful that the "officer wanted to jump him."
A five-man extraction team was called to remove Mejia from
his cell. Initially, officers were unable to enter the cell
because Mejia had tied a bedsheet to the door, which had to be
cut by the responding officers. Officers also utilized "OC
spray," a chemical agent, to subdue Mejia before finally
extracting him.
Mejia was charged with several asterisk offenses:3 1) two
counts of *.012, "throwing bodily fluid at any person or
otherwise purposely subjecting such person to contact with a
bodily fluid"; 2) *.154, "tampering with or blocking any locking
device"; and 3) *.306, "conduct which disrupts or interferes
with the security or orderly running of the correctional
2 We hereby grant the DOC's June 14, 2016 motion to supplement the record with certifications and documents relating to Mejia's mental health screening. 3 Asterisk offenses "are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a); see N.J.A.C. 10A:4-5.1(a) (providing the schedule of sanctions for asterisk offenses).
3 A-0710-13T4 facility." See N.J.A.C. 10A:4-4.1(a). At the administrative
hearing, Mejia pled guilty to one charge of throwing bodily
fluid on a person, and not guilty on the remaining charges.
Although Mejia waived counsel substitute, according to the
hearing officer's adjudication Form 259-A, a counsel substitute
was present for "translation purposes." Following the hearing,
Mejia was adjudicated guilty on all four charges.
The hearing officer sanctioned Mejia to the maximum period
of administrative segregation4 on each charge, all consecutive to
each other. On the first bodily fluid charge, Mejia received
fifteen days of disciplinary detention, 365 days loss of
commutation time, 365 days of administrative segregation, and 90
days loss of television, phone and radio privileges. On the
4 The DOC argues "solitary confinement" does not exist in the New Jersey state penal system and did not exist at the time Mejia was sanctioned. "Administrative segregation" is defined as "removal of an inmate from the general population of a correctional facility to a close custody unit because of one or more disciplinary infractions or other administrative considerations." N.J.A.C. 10A:1-2.2. The DOC contends administrative segregation is not solitary confinement because inmates have access to several services, including "five hours of recreation outside of [their] cell each week" and regular reviews by the mental health staff through the locked cell door. Mejia's mental health records reflect he attended one group session for stress management while housed on administrative segregation for more than two-and-one-half years. "Disciplinary detention" is the "removal of an inmate from the general population to a short-term close custody unit because of a disciplinary infraction(s)." Ibid. We were informed at oral argument that during disciplinary detention an inmate has no access to group sessions, recreation or privileges.
4 A-0710-13T4 second bodily fluid charge, Mejia received fifteen days of
disciplinary detention, 365 days loss of commutation time, 365
days administrative segregation, and 30 days loss of recreation
privileges. On the tampering with a locking device charge,
Mejia received time served in disciplinary detention, 180 days
loss of commutation time, 180 days of administrative
segregation, and 30 days loss of recreation privileges.
Finally, for the conduct that disrupts charge Mejia received
time served in disciplinary detention and 365 days of
administrative segregation. The hearing officer ran all of the
sanctions consecutively, other than the disciplinary detention
sanctions. Mejia's sanctions totaled 30 days of disciplinary
detention; 910 days loss of commutation time; 90 days loss of
television, phone and radio privileges; 60 days loss of
recreation privileges; and 1275 days of administrative
segregation.
Under the "reasons for sanctions" portion of the
adjudication form, the hearing officer noted Mejia "must be held
responsible for his actions," the behavior was "disgusting," and
it had caused the corrections officers to seek medical
attention. Although the two officers were medically examined,
the record contains no evidence of any injuries to either of
them due to this incident.
5 A-0710-13T4 On July 22, 2013, Mejia filed an administrative appeal of
the disciplinary decision written in Spanish. Within three
weeks, the Assistant Superintendent of New Jersey State Prison
upheld the decisions regarding both the adjudication and the
sanctions in general language without directly addressing any
issue raised. In the "explanation" portion of the form, the
Assistant Superintendent stated: "My review of this issue
reveals that there was compliance with the New Jersey
Administrative Code on inmate discipline, which prescribes
procedural safeguards, and the charge was adjudicated
accordingly. The preponderance of evidence presented supports
the decision of the Hearing Officer and the sanction rendered is
appropriate. There appears to be no violation of standards."
In October 2013, Mejia filed an appeal to this court. Six
months later, the DOC filed a successful motion for a remand to
reconsider Mejia's administrative appeal after its translation
into English. On June 6, 2014, after the appeal was translated,
the Office of the Administrator for New Jersey State Prison
again upheld the hearing officer's decision, this time rejecting
the specific arguments raised by Mejia almost a year earlier.5
5 Mejia argued that, contrary to the hearing officer's report, he asked for a staff member legal representative at the hearing, and told the hearing officer that he had only seven years of schooling and did not understand English well. He stated the (continued)
6 A-0710-13T4 In his pro se appeal to this court Mejia argued he had
mental health needs and had not received the mental health
screening required by N.J.A.C. 10A:4-9.5(c)(2), which requires
that a list of inmates with a pending disciplinary infraction be
forwarded to the "Mental Health Unit for a determination as to
which inmates should be considered special needs inmates." The
DOC responded to this issue in its initial brief in one
paragraph, stating "there is no evidence of mental health issues
and Mejia is not a special needs inmate," citing to notations by
the hearing officer on DOC forms stating "no evid. of MH
[(mental health)]." We sua sponte ordered the American Civil
Liberties Union, with its consent, to represent Mejia on appeal
and file a supplemental brief on his behalf.
In response to Mejia's supplemental brief raising the
argument that he suffered from mental illness and was
particularly vulnerable to the negative effects of long-term
solitary confinement in administrative segregation, the DOC for
the first time revealed Mejia had been screened for mental
health issues and was routinely reviewed, albeit in a cursory
fashion, pursuant to the settlement of a federal case in 1999.
See D.M. v. Terhune, 67 F. Supp. 2d 401, 403-05 (D.N.J. 1999).
(continued) inmate interpreter was only available at the end of the hearing, and he was denied the material and time to prepare.
7 A-0710-13T4 The DOC further informed us at oral argument that, pursuant to
an August 14, 2015 "Request for Rule Exemption" 6 (Rule
Exemption), Mejia had been returned to the general population
housing at an unknown date prior to oral argument, but after
February 8, 2016, when the records reflect he remained in
administrative segregation. The Rule Exemption, submitted to us
after oral argument, eliminated disciplinary detention and
limited administrative segregation "for multiple offenses
imposed as a result of the same incident" to 365 days. The
Rule Exemption also states:
Studies have shown that isolation, under certain circumstances, exacerbates mental health deterioration. As such, the elimination of [disciplinary] detention, and the immediate transport of an inmate to a less restrictive administrative segregation unit upon adjudication, will have a positive impact on the inmate population.
Similarly, maximizing inmate exposure to no more than 365 days of administrative segregation per incident, rather than per infraction, will decrease the likelihood of isolation.
6 N.J.A.C. 10A:1-2.4 authorizes the Commissioner to "relax and exempt rules and regulations for the administration of correctional facilities . . . within the Department of Corrections" to avoid "undue hardship, unfairness or injustice." Although the DOC provided a document titled "Request for Rule Exemption," and counsel stated at oral argument that a Rule Exemption had been applied to Mejia, we were not supplied with any official document designated as an approval of this request.
8 A-0710-13T4 The Rule Exemption attachments include "a replacement list of
prohibited acts found in N.J.A.C. 10A:4-4.1(a)" separating "the
original list into the 5 new Categories from the Rule Exemption"
including "the applicable number of days of Administrative
Segregation per category." The sanction range for *.012,
"Throwing bodily fluid at any person," is 181 to 365 days. The
other two infractions for which Mejia was convicted carry a
sanction range of 91 to 180 days. Thus, the infraction of
*.306, "conduct which disrupts or interferes with the security
or orderly running of the correctional facility," has been
downgraded to an infraction carrying a possible sanction of no
more than 180 days in administrative segregation rather than the
365 days Mejia received.
The scope of our review of an agency decision is limited.
Capital Health Sys., Inc. v. N.J. Dep't of Banking & Ins., ___
N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 14).
"Ordinarily, an appellate court will reverse the decision of the
administrative agency only if it is arbitrary, capricious or
unreasonable or it is not supported by substantial credible
evidence in the record as a whole." Henry v. Rahway State
Prison, 81 N.J. 571, 579-80 (1980). "Normally, when reviewing
agency decisions, we defer to matters that lie within the
special competence of an administrative tribunal." Balagun v.
9 A-0710-13T4 N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003).
"[S]uch deference is appropriate because it recognizes that
'agencies have the specialized expertise necessary to enact
regulations dealing with technical matters and are "particularly
well equipped to read . . . and to evaluate the factual and
technical issues that . . . rulemaking would invite."'" N.J.
Soc'y for Prevention of Cruelty to Animals v. N.J. Dep't of
Agric., 196 N.J. 366, 385 (2008) (quoting In re Freshwater
Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)). "Our role
is to engage in a 'careful and principled consideration of the
agency record and findings.'" DeCamp v. N.J. Dep't of Corr.,
386 N.J. Super. 631, 636 (App. Div. 2006) (quoting Williams v.
Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).
"[A]lthough the scope of review of an agency's decision is
circumscribed, an appellate court's review of an agency decision
is 'not simply a pro forma exercise in which [the court] rubber
stamp[s] findings that are not reasonably supported by the
evidence.'" In re Taylor, 158 N.J. 644, 657 (1999) (second and
third alterations in original) (quoting Chou v. Rutgers, 283
N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J.
374 (1996)).
10 A-0710-13T4 Mejia argues his appeal of administrative segregation is
not moot7 because, should he be convicted of any further
infraction, the severity of his prior sanction will be
considered when imposing punishment. This argument raises the
question of what criteria are used in imposing sanctions.
N.J.A.C. 10A:4-9.17, titled "Disciplinary sanctions," provides
in pertinent part:
(a) The disciplinary action may be individualized by considering such factors as the:
1. Offender's past history of correctional facility adjustment;
2. Setting and circumstances of the prohibited behavior;
3. Involved inmate's account;
4. Correctional goals set for the inmate; and
5. The inmate's history of, or the presence of, mental illness.
[(Emphasis added).]
The DOC also provided us with a copy of an "internal policy"
statement, ADM.008.000, titled "Inmate Disciplinary Hearing
Program: Mission, Goals and Objectives," revised on April 28,
7 The DOC has not raised the question of mootness. Even if the issue were moot, we would address it because of its importance. See Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003) (resolving a moot issue because of its public significance and likelihood to reoccur).
11 A-0710-13T4 2011, and reviewed in September 2015, which states "[t]he
mission of the Inmate Disciplinary Hearing Program is to ensure
that . . . all inmate disciplinary hearings are conducted fairly
and impartially . . . ." One of the "Goals and Objectives" is
"[t]o ensure fair and equitable sanctioning of inmates . . . ."
To accomplish those ends, "monthly reports containing a
statistical breakdown of infractions, comments, and
recommendations are generated, analyzed, and distributed to
appropriate administrative staff." The DOC has provided no
information stating hearing officers are required to impose
sanctions based on the factors set forth in N.J.A.C. 10A:4-
9.17(a), or any other delineated factors.
Mejia was given the longest possible period of
administrative segregation available at the time based on the
articulated reasons that his behavior was "disgusting," he "must
be held responsible for his actions," and corrections officers
had been medically examined. Mejia was convicted of two counts
of throwing bodily fluids on another person, which is arguably
"disgusting" in any of its manifestations. See State v.
Fuentes, 217 N.J. 57, 74-75 (2014) (holding "a sentencing court
must scrupulously avoid 'double-counting' facts that establish
the elements of the relevant offense"). All inmates should be
held accountable for their actions, and the fact that the
12 A-0710-13T4 officers hit by Mejia's bodily fluids were examined medically
does not in itself reflect any injury to either of them. A
bedrock principle of fair punishment is that it be meted out the
same to individuals similarly situated. State v. Moran, 202
N.J. 311, 326 (2010) (stating our Supreme Court "often has taken
affirmative steps to ensure that sentencing and disposition
procedures, whether authorized by statute or court rule, will
not produce widely disparate results for similarly situated
defendants").
Our criminal statutes provide aggravating and mitigating
factors that must be considered and articulated on the record
prior to sentencing. N.J.S.A. 2C:44-1; see Fuentes, supra, 217
N.J. at 73; see also State v. Case, 220 N.J. 49, 54 (2014)
(stating that "[c]entral to the success of" the sentencing
"process is the requirement that the judge articulate the
reasons for imposing sentence"). The DOC regulations include
factors to be utilized in imposing sanctions, but unfortunately
leave the use of those or other "such factors" entirely to the
discretion of the hearing officer. See N.J.A.C. 10A:4-9.17(a).
The hearing officer adjudication form has a section for the
purpose of stating the reasons for the sanction. Prior to the
translation of Mejia's appeal, the DOC's generic affirmance
acknowledged the sanction imposed must be equitable, stating,
13 A-0710-13T4 "the sanction rendered is appropriate." For a sentence to be
"appropriate," it is not enough that the sentence be within the
maximum limits set forth in the Administrative Code. With such
totally discretionary sanctioning factors, a hearing officer is
not guided to distinguish among inmates convicted of the same
infraction, as evidenced by the articulated reasons for the
maximum period of isolation imposed on Mejia. Without any
regulation requiring the articulation of sanctioning factors, we
have no way to review whether a sanction is imposed for
permissible reasons and is located at an appropriate point
within the allowable range. See In re Issuance of Permit by
Dep't of Envtl. Prot., 120 N.J. 164, 172-73 (1990) (stating an
administrative agency that is performing a quasi-judicial
function is obligated to set forth basic findings of facts
supporting the ultimate conclusion so the reviewing tribunal may
sufficiently review whether the actions were arbitrary and
capricious, and whether they were within the agency's scope of
authority); see also Bailey v. Bd. of Review, 339 N.J. Super.
29, 33 (App. Div. 2001) (stating this court should not defer to
an administrative determination unless it has "confidence that
there has been a careful consideration of the facts in issue and
appropriate findings addressing the critical issues in
dispute").
14 A-0710-13T4 We therefore reverse the sanctions imposed for Mejia's
commission of various infractions in a single incident. Under
current rules Mejia could not have been sanctioned to more than
a total of 365 days of administrative segregation. He could not
have received any time in disciplinary detention. He has thus
served more than the maximum sanction presently available. We
reverse the penalties imposed on Mejia, but affirm his guilt.
Mejia raises two other issues in his appeal: the quality of
the mental health screening and mental health services he has
been provided in prison, and the related issue of whether an
interpreter was provided to him to allow him to take advantage
of the mental health services otherwise available.8 The record
8 Following oral argument, the DOC provided us with a document titled "Health Services Unit Internal Management Procedures" specific to "Privacy of Care" that states: "For inmates with special communication needs staff will obtain permission from the inmate for use of an interpreter or telephonic translation service and arrange for such services." Mejia's actual mental health records reflect he was provided an interpreter for a mental health check-up on May 6, 2016, but had not been provided one for psychological check-ups previously. In April 2012 the social worker recorded that Mejia's "[E]nglish is not so good . . . It became clear that he had difficulty understanding/communicating in [E]nglish. I was going to see him with a translator later today, but in looking through the EMR [(electronic medical records)] it became clear that he does speak [E]nglish." In January 2013 the records reflect Mejia had rejected the offer of an interpreter. See New Jersey Administrative Office of Courts, Directive 3-04 (Mar. 22, 2004); see also Daoud v. Mohammad, 402 N.J. Super. 57, 60 (App. Div. 2008) (holding a tenant was deprived of due process by the court's failure to provide an interpreter); State v. Rodriguez, (continued)
15 A-0710-13T4 provided to us does not allay our concerns with regard to these
issues. Mental health screening at times was performed through
a locked cell door in English, during which Mejia was
unresponsive to the questions asked by the mental health
professional. Based on this "data" Mejia was determined to be
oriented in all spheres and not delusional. We do not have a
sufficient record to review the mental health services provided
to Mejia against a legally required standard for prison inmates.
No hearing has been conducted; no experts have prepared reports
or testified.
Not denying his commission of at least one of the
infractions from the beginning of the appellate process, Mejia
sought relief from the penalty imposed. We have given Mejia the
relief he requested. As is true all too often, the time taken
in this appeal, including the time necessitated by the failure
of the DOC to translate Mejia's agency appeal initially, has
nullified any practical effect of this relief. Nonetheless, we
anticipate that the requirement for the consideration and
articulation of sanctioning factors by hearing officers this
opinion imposes will assure the sanctioning of state prisoners
becomes more "fair and equitable," a stated goal of the DOC.
(continued) 294 N.J. Super. 129, 145 (Law Div. 1996) (reversing two traffic violations on the same grounds).
16 A-0710-13T4 We affirm the findings of guilt and reverse and remand as
to the penalties imposed. We do not retain jurisdiction.
17 A-0710-13T4