LUIS GARCIA VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0544-19
LUIS GARCIA, a/k/a
RICO GARCIA, LOUIS
GARCIA, and LOUIS
LUISITO,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted March 23, 2021 – Decided April 21, 2021
Before Judges Yannotti and Natali.
On appeal from the New Jersey Department of
Corrections.
Luis Garcia, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Nicholas Falcone, Deputy Attorney General,
on the brief).
PER CURIAM
Luis Garcia is presently incarcerated in the State's correctional system .
He appeals from a final decision of the New Jersey Department of Corrections
(NJDOC), which found that he committed prohibited act *.005, threatening
another with bodily harm or with an offense against his or her person or
property, in violation of N.J.A.C. 10A:4-4.1(a)(2)(ii). 1 We affirm.
On May 23, 2019, while incarcerated at New Jersey State Prison (NJSP),
Garcia met with Dr. Emma Bushong, a mental-health counselor. Dr. Bushong
reported that during their meeting, Garcia expressed "significant frustration"
with a unit psychiatrist. According to Dr. Bushong, Garcia made statements
such as, (1) "I'd never do anything to myself," (2) "[i]f you worry about anything,
you should worry about someone else . . . "; and "it wouldn’t be you or them,
it's that one doctor." Dr. Bushong noted that Garcia did not provide any further
details.
Garcia was charged with committing prohibited act *.005 and he was
served with the charge. Dr. Melissa Dettore conducted a psychological
evaluation of Garcia and issued a confidential report dated May 24, 2019, which
1
Prohibited acts preceded by an asterisk "are considered to be the most serious
and result in the most severe sanctions." N.J.A.C. 10A:4-4.1.
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addressed his mental health status, level of responsibility at the time of the
charge, competency to participate in a hearing, and the appropriateness of
placement in administrative segregation as a sanction.
The matter then was referred to a departmental hearing officer for a
hearing. Garcia pleaded not guilty and he was provided with the assistance of
counsel substitute. Garcia asserted that he made the statements during a therapy
session with Dr. Bushong, and he did not threaten anyone. He claimed he had
just been "talking."
Garcia's counsel substitute argued that the alleged threat was not directed
towards any specific individual, and there was no evidence that Garcia's "body
language" indicated he would carry out the threat. The hearing officer offered
Garcia the opportunity to call his own witnesses and confront adverse witnesses.
He declined the offers.
The hearing officer found the special custody report clearly indicated that
Garcia had been expressing his frustration with the psychologist, and that he
chose not to present any evidence to support his claim that he was not
threatening anyone or discredit the staff's reports. The hearing officer also
determined that Garcia's words "reasonably convey the threat of
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harm/fear/menace to the ordinary" person, especially since "the conversation
was about harm towards a specific mental health doctor."
The hearing officer found that Garcia had committed prohibited act *.005
and imposed the following sanctions: the loss of thirty days of recreation
privileges and the loss of 120 days of commutation time. The sanctions also
required that Garcia spend ninety-one days in administrative segregation,
pursuant to N.J.A.C. 10A:4-5.1(g).
The hearing officer noted that Garcia had last been charged with a
disciplinary infraction in 2016. The hearing officer reasoned, however, that the
sanctions were appropriate because his "words conveyed [a] threat of harm to
another person," and Garcia "must be held responsible for the words he speaks."
The Administrator at NJSP approved the loss of commutation time and
the prison's classification department authorized administrative segregation.
Garcia then filed an administrative appeal, arguing that his threat was not
sufficiently specific to warrant discipline.
The NJSP Administrator upheld the decision, finding that the hearing
officer had complied with the relevant provisions of the administrative code
governing inmate discipline. The Administrator found "[t]he preponderance of
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the evidence" supported the hearing officer's finding of guilt. This appeal
followed.
On appeal, Garcia argues that he should not have been found guilty on the
*.005 charge. He asserts that during his psychological counseling session, he
"vented his frustration." He contends that his comments during the session do
not constitute a threat because he did not threaten a specific person, identify a
specific person, or mention "any specific action."
Garcia further argues that he was sanctioned with placement in
administrative segregation for a period longer than the twenty-one days
permitted for inmates with special needs. He also contends the Administrator
should not have denied his appeal and the NJDOC's final decision is arbitrary,
capricious, and unreasonable.
The scope of our review of a final decision of an administrative agency is
"severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8,
27 (1994) (citing Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93
N.J. 384, 390 (1983)). We can "intervene only in those rare circumstances in
which an agency action is clearly inconsistent with its statutory mission or with
other State policy." Ibid.A-0544-19
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In an appeal from a final decision of the NJDOC in a prisoner disciplinary
matter, we consider whether there is substantial evidence in the record to support
the NJDOC's decision that the inmate committed the prohibited act. Blanchard
v. N.J. Dep't of Corrs., 461 N.J. Super. 231, 237-38 (App. Div. 2019) (citing
Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). We also must
consider whether, in making its decision, the NJDOC followed the departmental
regulations governing disciplinary proceedings, which were 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, 219-22 (1995).
An adjudication of guilt on a disciplinary charge must be supported by
"substantial evidence." N.J.A.C. 10A:4-9.15(a). "Substantial evidence" has
been defined as "such evidence as a reasonable mind might accept as adequate
to support a conclusion." Figueroa v. N.J. Dep't of Corrs., 414 N.J. Super. 186,
192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358,
376 (1961)).
In Jacobs, the inmate was charged with "threatening another with bodily
harm" in violation of N.J.A.C. 10A:4-4.1(a), *.005. 136 N.J. at 215. The inmate
yelled profanities at the corrections officer, and the officer asked the inmate for
his identification card. Id. at 216. The inmate responded, "Fuck you, I ain't
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giving you shit. If you want my I.D., step in the back room." Ibid. Another
witness reported that as the officer turned to walk away, the inmate stated, "come
on, come on[,] I'll fuck you up." Ibid.
On appeal, the inmate argued there was insufficient evidence to support
the conclusion that he threatened the officer with bodily harm. Id. at 222. The
inmate asserted that while he used abusive language, he did not intend to
threaten the officer. Ibid. The Court stated that "[t]he determination of whether
a remark constitutes a threat is made on the basis of an objective analysis of
whether the remark conveys a basis of fear." Ibid.
The Court held that a reasonable mind could conclude that the inmate had
threatened the officer. Id. at 223. The inmate admitted telling the officer "to
get the fuck out of [his] face" during a "heated" discussion. Ibid. Alone, this
comment would be "sufficient to justify the conclusion that a threat had been
made." Ibid.
The Court noted, however, that other witnesses had heard the inmate make
additional threating comments. Id. at 223-24. The Court stated, "[w]hen words
of an inmate are of such a nature as would reasonably convey the menace or fear
of death to the ordinary hearer, then that is a threat of bodily harm and therefore
punishable under N.J.A.C. 10A:4-4.1(a)*.005." Id. at 224.
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Here, there is sufficient evidence in the record to support the hearing
officer's finding that Garcia's remarks "convey[ed] a basis of fear." Id. at 222.
As noted, Dr. Bushong reported that during her counseling session with Garcia,
he stated, "I'd never do anything to myself. [I]f you worry about anything, you
should worry about someone else." Dr. Bushong said Garcia specifically
referred to "that one doctor."
Thus, the record supports the hearing officer's finding that Garcia's words
"reasonably convey the threat of harm/fear/menace to the ordinary" person
hearing those words, and that "the conversation was about harm towards a
specific mental health doctor." There is sufficient evidence in the record to
support the hearing officer's finding that Garcia committed prohibited act *.005.
Garcia further argues that his placement in administrative segregation for
ninety-one days is not authorized under the administrative code. Prohibited act
*.005 is a "Category B" offense. N.J.A.C. 10A:4-4.1(a)(2)(ii). The code
provides in pertinent part that:
A finding of guilt for any offense in Category B shall
result in a sanction of no less than [ninety-one] days
and no more than 180 days of administrative
segregation per incident . . . unless a medical or mental
health professional determines that the inmate is not
appropriate for administrative segregation placement.
[N.J.A.C. 10A:4-5.1(g).]
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As noted previously, after Garcia was charged with the instance
infraction, Dr. Dettore conducted a psychological evaluation and issued a
confidential report. Dr. Dettore did not find that Garcia's placement in
administrative segregation would be inappropriate. Therefore, Garcia's
placement in administrative segregation, as a sanction for committing prohibited
act *.005, was permitted by N.J.A.C. 10A:4-5.1(g).
We have considered Garcia's other contentions and conclude they lack
sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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