ROBERT BROWER 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NOT FOR PUBLICATION WITHOUT THE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-1853-19
ROBERT BROWER,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted September 20, 2021 – Decided September 23, 2021
Before Judges Fasciale and Firko.
On appeal from the New Jersey Department of
Corrections.
Robert Brower, appellant pro se.
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Raajen V. Bhaskar, Deputy
Attorney General, on the brief).
PER CURIAM
Robert Brower, pro se, an inmate at Northern State Prison in Newark,
appeals from a September 20, 2019 final decision of the New Jersey Department
of Corrections (DOC). An Assistant Superintendent upheld a disciplinary
officer's decision finding Brower guilty of prohibited act *.004, fighting with
another person, N.J.A.C. 10A:4-4.1(a).1 For the reasons that follow, we affirm.
On September 17, 2019,2 at approximately 1:46 p.m., Brower and inmate
Charles Clark were observed on camera footage by corrections officers Robert
Devol and John Rollar "actively fighting" and "exchang[ing] several punches
before other inmates broke them up." Devol and Rollar heard a "commotion"
before that while monitoring afternoon recreation. According to Brower, he was
in the Bayside Trailer 2 West dayroom waiting to use the phone when Clark
claimed he was next and pushed Brower away from the phone. After the two
inmates were "identified, separated, and placed in handcuffs," Sergeant Anna
Miglio arrived at the scene and questioned them. "[B]oth admitted that they
were fighting over whose turn it was to use the phone."
1
"An inmate who commits . . . [a] prohibited act[] shall be subject to
disciplinary action . . . imposed by a hearing officer (DHO) . . . . Prohibited acts
preceded by an asterisk (*) are considered the most serious . . . ."
2
Brower incorrectly refers to the date of the incident as September 16, 2019.
A-1853-19
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Following medical evaluations and clearance for prehearing disciplinary
housing, Brower and Clark provided written statements regarding the incident
"alluding to a fight over the phones" and were charged with prohibited act *004.
Clark stated, "it happen[ed] so fast [I] don't know who . . . hit who first." Brower
reported that Clark "shoved [him] with both hands around [his] chest area ," and
Brower responded by intentionally "air-[swinging]" at Clark. The disciplinary
report charging Brower with *.004 was delivered to him the following day,
September 18, 2019, by DOC staff. Brower was granted counsel substitute to
prepare his defense.
On September 20, 2019, the hearing took place. Brower pled "not guilty"
to the charge and presented his defense. He denied a fight occurred with Clark,
but rather contended the two engaged in "tussling/horseplay . . . over the phone."
Counsel substitute relied on Brower's statements. Brower was granted the
opportunity to call Clark as a witness to testify on his behalf but declined the
opportunity to do so or to confront and cross-examine adverse witnesses.
Brower was adjudicated guilty of the *.004 charge. He was sentenced to
fifteen days' loss of recreational privileges, ninety-one days of administrative
segregation, and sixty days' loss of commutation time. DHO C. Ralph, reviewed
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Brower's statement for the record and noted the video was not requested by
either inmate.
DHO Ralph found "[t]ussling means there was some physical contact,"
and "[s]anctions [are] to deter." On September 20, 2019, Brower
administratively appealed the DHO's decision and asserted he and Clark "got
into an argument about the phone" but . . . "never exchanged any punches."
Assistant Superintendent A. Lewis entered a disposition upholding the DHO's
decision on September 24, 2019, explaining: "[y]ou were observed on camera
engaged in a fight with another inmate. This behavior is disruptive and will not
be tolerated. The sanction imposed was proportionate to the offense. No
leniency will be afforded to you." This appeal followed.
Brower raises the following issues on appeal:
POINT ONE
THE STATE AGENCY'S ADMINISTRATIVE
DECISION WAS ARBITRARY, CAPRICIOUS, AND
UNREASONABLE IN LIGHT OF THE SUFFICIENT
CREDIBLE EVIDENCE PRESENT IN THE
RECORD, HAD IGNORED, AND UNDERVALUED
SUBSTANTIAL EVIDENCE, ALL IN VIOLATION
OF THE UNITED STATES AND NEW JERSEY
CONSTITUTIONS, DUE PROCESS, STATUTE,
AND REGULATION.
A. Introduction.
A-1853-19
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B. Evidence Required.
C. Arbitrary, Capricious, And Unreasonable
Decision Making.
POINT TWO
THE STATE AGENCY'S ADJUDICATION IS
INCONSISTENT WITH LAW AND THE POLICIES
BEHIND THE LEGISLATION, IN VIOLATION OF
THE UNITED STATES AND NEW JERSEY
CONSTITUTIONS, DUE PROCESS, STATUTE,
AND REGULATION.
POINT THREE
[BROWER] WAS DENIED HIS FUNDAMENTAL
DUE PROCESS RIGHT[S] IN VIOLATION OF THE
UNITED STATES AND NEW JERSEY
CONSTITUTIONS, DUE PROCESS, STATUTE,
AND REGULATION.
A. [Brower] Was Denied His Right To Attend The
Hearing And Offer Evidence.
B. [Brower] Was Denied The Opportunity To Call
A Witness(es) And Present Documentary And
Electronic Video Evidence. In Addition, [Brower] Was
Denied The Opportunity To Raise A Self-Defense
Claim To The Charges.
C. [Brower] Was Denied The Opportunity For
Confrontation And Cross-Examination Of The
[Accuser(s)] And/Or The State's Witness(es).
D. [Brower] Was Denied His Right To Have The
Evidence Relied Upon In Making A Determination Of
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Guilt Documented In The Adjudication Of Disciplinary
Report [F]orm.
E. The Department's Practices Violate Due Process.
POINT FOUR
THE STATE AGENCY DENIED [BROWER] OF HIS
RIGHT TO THE EFFECTIVE ASSISTANCE OF
SUBSTITUTE COUNSEL, IN VIOLATION OF THE
UNITED STATES AND NEW JERSEY
CONSTITUTIONS, DUE PROCESS, STATUTE,
AND REGULATION.
POINT FIVE
THE STATE AGENCY'S FACTUAL CONCLUSIONS
ARE SO WIDE OFF THE MARK AS TO BE
MANIFESTLY MISTAKEN GIVING RISE TO A
SENSE OF WRONGNESS, IN VIOLATION OF THE
UNITED STATES AND NEW JERSEY
CONSTITUTIONS, DUE PROCESS, STATUTE,
AND REGULATION.
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) (citing Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009)).
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) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)).
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"'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)). Nonetheless, we must "engage in a 'careful and principled
consideration of the agency record and findings.'" Williams v. Dep't of Corr.,
330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v.
Bureau of Sec., 64 N.J. 85, 93 (1973)).
Brower's own waiver of the opportunity to call witnesses does not
implicate a due process concern. He had the opportunity to confront and cross-
examine witnesses but declined to as evidenced by his counsel substitute's
signature on the adjudication report. The DHO conducted the disciplinary
hearing in accordance with Title 10A.
Based on case law and our review of the record, the DOC's decision that
Brower fought with Clark is supported by substantial, credible evidence. Henry,
81 N.J. at 579-80; see also N.J.A.C. 10A:4-4.1(a). During the proceedings,
Brower explained he engaged in nothing more than "tussling/horseplay" with
Clark. The video contradicted Brower's report and hearing testimony. Further,
our review of Brower's due process concerns shows he was afforded an adequate
procedural opportunity to present his defense. Moreover, through his counsel
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substitute, Brower acknowledged that the information in the DOC's hearing
report accurately reflected what took place at the disciplinary hearing. Brower's
remaining arguments are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(D).
Affirmed.
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