NOT FOR PUBLICATION WITHOUT THE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-4079-18






                Submitted January 6, 2021 – Decided March 24, 2021

                Before Judges Sumners and Mitterhoff.

                On appeal from the New Jersey Department of

                Benjamin Harris, appellant pro se.

                Gurbir S. Grewal, Attorney General, attorney for
                respondent (Jane C. Schuster, Assistant Attorney
                General, of counsel; Raajen V. Bhaskar, Deputy
                Attorney General, on the brief).

      Appellant Benjamin Harris, an inmate formerly incarcerated at South

Woods State Prison, appeals from a final administrative determination that he

committed prohibited act *.202 – possession or introduction of a weapon or

unauthorized tool – in violation of N.J.A.C. 10A:4-4.1(a)(1). We reverse and

remand for a rehearing.

      Legible portions of the record indicate that on January 4, 2019, appellant's

cellmate reported to a correctional officer that appellant "had a lock in a sock"

hidden under a mattress in their shared cell. A search of the cell revealed a

padlock tied inside of a sock. Department of Corrections staff confiscated the

improvised weapon and placed it in the facility's evidence locker.

      Both appellant and his cellmate were charged with violating *.202 of

N.J.A.C. 10A:4-4.1(a)(1), which prohibits the "possession or introduction of a

weapon, such as, but not limited to, a sharpened instrument, knife, or

unauthorized tool." Appellant was served with notice of the disciplinary charge

on January 5, 2019. He pled not guilty. In his defense, appellant all eged his

cellmate placed the improvised weapon under his mattress and reported it in an

attempt to be transferred out of that housing unit because he owed other inmates

outstanding gambling debts.

      A disciplinary hearing was held on January 7, 2019. Appellant allegedly

requested to call Correctional Officer Banks to testify to the events of January

4, 2019, which would provide evidence of his cellmate's motive to make the

false report. That request, however, was allegedly denied. Respondent, in turn,

contends that defendant waived his right to call witnesses at the disciplinary


      At the conclusion of the hearing, the hearing officer found appellant guilty

of prohibited act *.202. Appellant administratively appealed the decision. On

February 14, 2019, the facility's Assistant Superintendent upheld the finding of

guilt and sanctions imposed. On April 4, 2019, appellant filed a notice of appeal

of the Assistant Superintendent's decision.

      On appellant's motion to this court, respondent was compelled to provide

certain agency records related to the disciplinary hearing, including the

Adjudication of Disciplinary Charge Form. In response, respondent sent a five-

page document that is primarily black in color with white and gray markings

throughout. Various words can sporadically be deciphered, but the document as

a whole is illegible. On December 16, 2019, appellant requested that respondent

send a better quality copy of the Adjudication of Disciplinary Charge Form, as

the document was critical to his appeal. On January 21, 2020, respondent

informed appellant that it was unable to provide a more legible copy.

      On appeal, appellant raises the following issue for our review:

            POINT I

            PROCESS   WHERE       [THE]   DISCIPLINARY
            EVIDENCE N.J.A.C. 10A:4-9.15.

      Appellant contends the disciplinary hearing officer's determination was

not based on substantial evidence. He highlights that the lock in a sock was

found in the shared cell when he was not present, and denies ever possessing or

having knowledge of the makeshift weapon. Appellant notes that his cellmate

was also charged with a *.202 offense. When the evidence of his cellmate's

motive is considered, which he allegedly presented at the disciplinary hearing,

appellant argues that it becomes clear he never possessed a weapon. Moreover,

because he would have relied on Officer Bank's testimony as further support of

his cellmate's motive, it was improper that he was denied the opportunity to

examine the witness.

      At the outset, we acknowledge the limited scope of our review. Figueroa

v. N.J. Dep't of Corr., 

414 N.J. Super. 186

, 190 (App. Div. 2010) (citations

omitted). Generally, the decision must not be disturbed on appeal unless it is

arbitrary, capricious, or unreasonable, or unsupported by substantial credible

evidence. Henry v. Rahway State Prison, 

81 N.J. 571

, 579-80 (1980) (citing

Campbell v. Dep't of Civ. Serv., 

39 N.J. 556

, 562 (1963)). Substantial evidence

has been defined as "such evidence as a reasonable mind might accept as

adequate to support a conclusion[,]" or "evidence furnishing a reasonable basis

for the agency's action." 

Figueroa, 414 N.J. Super. at 192

(quotations omitted);

see also N.J.A.C. 10A:4-9.15(a). Accordingly, "disciplinary actions against

inmates must be based on more than a subjective hunch, conjecture or surmise

of the factfinder." 

Figueroa, 414 N.J. Super. at 191


      While prisoners do not enjoy the full spectrum of due process rights, a

prison inmate charged with a disciplinary action is entitled to certain limited due

process rights. Wolff v. McDonnell, 

418 U.S. 539

, 555-56 (1974); Avant v.


67 N.J. 496

, 523 (1975) (quoting Morrissey v. Brewer, 

408 U.S. 471


488-89 (1972)). Those rights include an inmate's entitlement to written notice

of the charges at least twenty-four hours prior to the hearing, N.J.A.C. 10A:4-

9.2, a fair tribunal, N.J.A.C. 10A:4-9.15, a limited right to call witnesses and

present documentary evidence, N.J.A.C. 10A:4-9.13, a limited right to confront

and cross-examine adverse witnesses, N.J.A.C. 10A:4-9.14, a right to a written

statement of the evidence relied upon and the reasons for the sanctions imposed,

N.J.A.C. 10A:4-9.24, and, in certain circumstances, the assistance of counsel-

substitute, N.J.A.C. 10A:4-9.12. Those regulations "strike the proper balance

between the security concerns of the prison, the need for swift and fair

discipline, and the due-process rights of the inmates." Williams v. Dep't of


330 N.J. Super. 197

, 203 (App. Div. 2000) (citing McDonald v. Pinchak,

139 N.J. 188

, 202 (1995)).

      We have noted "[p]risons are dangerous places, and the courts must afford

appropriate deference and flexibility to administrators trying to manage this

volatile environment." Russo v. N.J. Dep't of Corr., 

324 N.J. Super. 576

, 584

(App. Div. 1999). A reviewing court "may not substitute its own judgment for

the agency's, even though the court might have reached a different result." In re


208 N.J. 182

, 194 (2011) (quotation omitted). But our review is not

"perfunctory," Blackwell v. Dep't of Corr., 

348 N.J. Super. 117

, 123 (2002), nor

is "our function . . . merely [to] rubberstamp an agency's decision[.]" Figueroa,

414 N.J. Super at 191 (citing 

Williams, 330 N.J. Super. at 204

). Instead, it is

our duty to engage in a "careful and principled consideration of the agency

record and findings[.]" Mayflower Sec. Co. v. Bureau of Sec., 

64 N.J. 85

, 93


      To enable us to exercise this function, however, the agency must provide

a reasonable record and statement of its findings. Blyther v. N.J. Dep't of Corr.,

322 N.J. Super. 56

, 63 (App. Div. 1999). "No matter how great a deference we

must accord the administrative determination, we have no capacity to review the

issues at all 'unless there is some kind of reasonable factual record developed by

the administrative agency and the agency has stated its reasons' with


Ibid. (quoting In re

Issuance of a Permit by Dep't of Env't Prot.,

120 N.J. 164

, 173 (1990)). "[W]e insist that the agency disclose its reasons for

any decision, even those based upon expertise, so that a proper, searching, and

careful review by this court may be undertaken." Balagun v. N.J. Dep't of Corr.,

361 N.J. Super. 199

, 203 (App. Div. 2003); see also N.J.A.C. 10A:4-9.15

(mandating that a hearing officer specify, on an adjudication form, the evidence

relied upon in making a finding of guilt after a disciplinary hearing).

      The Adjudication of Disciplinary Charge Form plays a critical role in

appellate review of Department of Corrections disciplinary decisions. It ensures

that an inmate's limited due process rights are protected and resolves factual

disputes regarding the events of a disciplinary hearing. Without the benefit of

an Adjudication of Disciplinary Charge Form in this case, we are left with a

factual record that is inadequate for us to meaningfully review the agency's


      We are unable to determine if appellant was given the opportunity to call

witnesses, N.J.A.C. 10A:4-9.13, to cross-examine adverse witnesses, N.J.A.C.

10A:4-9.14, or if he was given a written statement of the evidence relied upon

and the reasons for the sanctions imposed, N.J.A.C. 10A:4-9.24. Because the

record does not indicate which sanctions were imposed, we are unable to

determine whether the sanctions conformed to the mandatory parameters set

forth in N.J.A.C. 10A:4-4.1. Nor are we able to determine if the hearing officer

based his decision on substantial evidence, N.J.A.C. 10A:4-9.15(a). In light of

the deficiencies in the record, we are constrained to remand the matter for a

rehearing so that an adequate record can be created. We express no opinion on

the merits of the disciplinary charge.

      Reversed and remanded for a rehearing consistent with this opinion. We

do not retain jurisdiction.


Add comment

By Tucker

Recent Posts

Recent Comments