LUIS MANSO VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0348-16T2
LUIS MANSO,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted August 21, 2018 – Decided September 4, 2018
Before Judges Sumners and Gilson.
On appeal from the New Jersey Department of
Corrections.
Luis Manso, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney
for respondent (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Kevin
J. Dronson, Deputy Attorney General, on the
brief).
PER CURIAM
Luis Manso, 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 committing prohibited act .709, failure to comply with a
written rule or regulation of the correctional facility, in
violation of N.J.A.C. 10A:4-4.1(a)(4)(ix). Specifically, Manso
was found to have sent a letter to a teacher at the prison asking
her for a date. We reverse because there was no substantial
credible evidence in the record that Manso actually wrote or sent
the letter.
I.
On September 2, 2016, V.G., a teacher in the education
department at the State Prison, received a letter. V.G. had been
out on leave, returned on September 2, 2016, and was reviewing her
mail. The typewritten letter was dated "7/7/16" and was not signed
by hand. The letter began: "My name is Luis Manso, I am a paralegal
here in the library here at Northern and I have been wanting to
talk to you." The letter went on to state, in part: "I find you
very attractive . . . . I wondering if you be interested in going
on a date with me when I get home?" It ended: "xoxoxoxoxoxo
Manso."
The letter arrived in an envelope that had the return address:
"L. Manso 762786B[,] N.S.P.[,] P.O. Box 2300[,] Newark, N.J.
07114." The envelope also had a postmark indicating that it had
been mailed from Northern State Prison.
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Upon receipt of the letter, V.G. turned it over to Sergeant
J.D. Sergeant J.D., in turn, gave the letter to Sergeant E.J.,
who charged Manso with prohibited acts .052 (making sexual
proposals or threats to another) and .709 (failure to comply with
a written rule or regulation).
The following day, on September 3, 2016, Sergeant S.K.
determined that the disciplinary charges had merit and the charges
were served on Manso. Manso denied sending the letter, requested
a copy of the letter and any video surveillance, and also requested
that the letter be analyzed for fingerprints.
A supervising lieutenant also forwarded the letter to a
Special Investigations Division (SID) investigator. The record,
however, does not contain any report or summary of an investigation
by SID. In that regard, the report of the disciplinary hearing
officer does not list any report from SID as a report submitted
or considered.
The disciplinary hearing began on September 7, 2016, and
concluded on September 8, 2016. In support of the charges, the
Department presented the letter, the postmarked envelope, a
statement by V.G., a statement by Sergeant J.D., a statement by
Sergeant E.J., and the disciplinary report. The hearing officer
also received a report authorizing the disciplinary housing
placement (DHP) of Manso, a report concerning Manso's medical
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condition when he was placed in DHP, a report on the seizure of
the letter, a use of force report, and an excerpt from the inmate
handbook containing certain facility rules.
At the hearing, Manso pled not guilty, stating that he had
"no knowledge" of the letter, and that he had been "set up." Manso
also pointed out that in his eighteen years in prison, he had not
previously been charged with any disciplinary violations. His
counsel substitute contended that the information in the letter
was "not true[,]" and requested leniency because Manso had not
made any threats.
The hearing officer found Manso guilty of prohibited act
.709. In explaining that finding, the hearing officer stated:
Pleads not guilty, offers no evidence to
contradict Part A staff report; letter
admitted into evidence. [Inmate] statement
and [counsel substitute] statement noted,
provides no evidence to mitigate or exonerate.
Charge has merit. All relied on.
Manso was sanctioned to thirty days of administrative
segregation, sixty days loss of commutation time, and fifteen days
loss of recreation privileges.
The hearing officer did not address the charge of prohibited
act .052, and it appears that charge was dropped. In that regard,
the record contains no finding of guilt on prohibited act .052
and, thus, we deem that charge to have been dismissed.
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Manso administratively appealed. On September 9, 2016, the
Department, acting through the Assistant Superintendent, upheld
the disciplinary finding of guilt of prohibited act .709 and the
sanctions imposed. In rendering the final agency decision, the
Department stated:
The decision of the hearing officer is upheld.
Consideration has been taken to all relevant
factors regarding your imposed disciplinary
sanctions and appeal. As a result, your
appeal is denied: it has been determined that
the sanction is appropriate and within
acceptable NJDOC limits. No further actions
are required.
II.
On this appeal, Manso makes three arguments. First, he
contends that there was no substantial credible evidence that he
wrote or sent the letter. Second, he argues that his due process
rights were violated when he was denied the right to obtain a
witness statement. Finally, he alleges that his due process rights
were violated when his request to have the letter analyzed for
fingerprints was denied. We need only reach the first argument,
because the record does not contain substantial credible evidence
that Manso wrote or sent the letter.
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
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unreasonable or [] is not supported by substantial credible
evidence in the record as a whole.'" Ramirez v. N.J. Dep't of
Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (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 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) (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, 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.
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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 Manso wrote or sent the letter. The hearing officer
identified the evidence she considered. That evidence included
the letter, the postmarked envelope, statements by V.G., Sergeant
J.D., and Sergeant E.J., and the disciplinary report.
The letter and envelope do not establish that they were
written by or came from Manso. The letter was typed and was not
signed. While the letter states that it is from Manso, there was
no evidence that he actually wrote or sent the letter. Indeed,
Manso denied knowing anything about the letter. His substitute
counsel also contended that much of the information in the letter
was inaccurate. 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.
at 188 (recognizing that the Department bears the burden of
persuasion to sustain a charge of prohibited acts). The hearing
officer never made a credibility finding concerning Manso's
denial. Instead, she improperly shifted the burden to Manso and
reasoned that he offered no evidence to contradict the staff
report.
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The statement by V.G. merely states that she received the
letter and provides no other basis to link the letter to Manso.
In that regard, V.G. does not state whether she already knew Manso
or whether she had any prior interaction with him.
Similarly, the statements by Sergeant J.D. and Sergeant E.J.
merely state that they received the letter and the statements do
not indicate that either sergeant conducted any independent
investigation. The disciplinary report also does not contain any
substantial credible evidence that Manso wrote or sent the letter.
The report states that Sergeant S.K. reviewed the "reports" from
V.G., Sergeant J.D., and Sergeant E.J., but it discloses no other
investigation. The report then concludes: "Charge has merit[.]"
Critically, however, there is no evidence concerning the factual
basis for that conclusion.
As a consequence, when the hearing officer made her finding
of guilt, she was relying on the existence of the letter and the
envelope that it came in. No witness for the Department appeared
at the hearing. Thus, the hearing officer made no credibility
findings. Instead, the hearing officer relied on written
statements and documents. None of those statements or documents
provide any direct evidence that Manso wrote or sent the letter.
We note that Manso requested a fingerprint analysis, but no
analysis was conducted. We do not suggest that the Department was
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required to conduct a fingerprint analysis, but without that
analysis, the Department has no evidence that Manso actually
touched or handled the letter or envelope. We also note that the
letter was sent to SID for investigation, but the record contains
no results of that investigation. In short, the Department failed
to show that there was substantial credible evidence supporting
the finding of guilt of prohibited act .709. Accordingly, the
finding of guilt of prohibited act .709 is vacated and the loss
of sixty days commutation time is to be restored.
Reversed and vacated. We do not retain jurisdiction.
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