BRIAN MOORE VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1208-17T3
BRIAN MOORE,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted June 6, 2019 – Decided July 8, 2019
Before Judges Whipple and Firko.
On appeal from the New Jersey Department of
Corrections.
Brian Moore, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Michael E. Vomacka,
Deputy Attorney General, on the brief).
PER CURIAM
Brian Moore, an inmate at South Woods Prison, appeals from an August
3, 2017 final decision of the Department of Corrections (DOC). An Assistant
Superintendent upheld a disciplinary officer's decision finding him guilty of
committing prohibited acts *.002, assaulting any person, in violation of N.J.A.C.
10A:4-4.1(a)(1)(ii); and *.306, conduct which disrupts the orderly running of
the corrections facility, in violation of N.J.A.C. 10A:4-4.1(a)(2)(xxix). For the
reasons that follow, we affirm.
We discern the following facts and procedural history from the record.
Moore was previously an inmate at East Jersey State Prison. Moore asserts that
on July 11, 2017, during a mess movement, he and Senior Corrections Officer
Colon got into an argument about when Moore could shower. According to
Moore, Colon later instructed him to come out of his cell to shower, and when
he did, Colon assaulted him from behind. Moore asserts Senior Corrections
Officer Debari intervened and punched, handcuffed and pepper sprayed him.
Moore was taken to the infirmary where he claims officers slammed his head
into the wall several times. He was transported to a hospital where he received
stiches.
A-1208-17T3
2
According to the DOC, Moore was the aggressor who tackled Colon to
the ground and resisted Colon's attempts to restrain him. This prompted a "Code
33," which delayed the movement of inmates back to their wings.
Moore was charged with prohibited acts *.002 and *.306 and given a copy
of the charges on July 13, 2017. Moore requested a video of the incident,
witness statements and Colon's medical information. DOC determined there
was no video of the incident but provided witness statements from inmates.
On July 27, 2017, a disciplinary hearing officer conducted a hearing.
Moore received a counsel substitute and pled not guilty to the charges. The
hearing officer considered reports from officers, defendant's medical
evaluations and other inmates' statements. The other inmates' statements did not
corroborate Moore's assertion that he was assaulted.
The hearing officer found Moore guilty of *.002 and *.306. For the *.002
charge, Moore was sentenced to 356 days of administrative segregation, 36 5
days loss of commutation time and thirty days loss of recreation privileges. For
the *.306 charge, Moore was sentenced to 180 days administrative segregation,
180 days loss of commutation time and thirty days loss of recreation privileges.
Moore appealed the decision to the Assistant Superintendent, who issued a
disposition upholding the charges on August 3, 2017. This appeal followed.
A-1208-17T3
3
Moore raises the following issues on appeal:
POINT I
THE [PETITIONER] WAS DENIED A FAIR
HEARING FOR WANT OF DUE PROCESS. (Not
Raised Below).
POINT II
THE WEIGHT OF THE EVIDENCE RUNS
CONTRARY TO THE FINDINGS OF THE HEARING
OFFICER.
Our review of final administrative agency decisions is limited. Malacow
v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). An
administrative agency's decision will not be reversed unless 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). "'Substantial evidence' means 'such evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of
Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec.
& Gas Co., 35 N.J. 358, 376 (1961)).
Moore contends the hearing officer's decision was against the weight of
the evidence. However, a DOC report described Moore as the aggressor and
included Debari's observation that he witnessed Moore wrestling with Colon.
A-1208-17T3
4
Moore's evidence was limited to his own recollection of events. Statements
from other inmates failed to corroborate Moore's version of the altercation.
Additionally, Moore's confrontation with Colon triggered a delay in the
movement of inmates back to their wings. Thus, the record contains substantial
credible evidence to support the hearing officer's decision.
Moore also asserts he was denied due process. Although inmates are not
entitled to the same due process protections as criminal defendants, they are
guaranteed certain limited protections. See McDonald v. Pinchak, 139 N.J. 188,
194 (1995); Avant v. Clifford, 67 N.J. 496, 523 (1975). Here, Moore was given
written notice of the charge at least twenty-four hours before the hearing, he was
provided with counsel substitute, he was offered an opportunity to call and
confront witnesses and he received a written statement of the evidence relied
upon and the reasons for the discipline.
Affirmed.
A-1208-17T3
5