MICHAEL HERSEY 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NOT FOR PUBLICATION WITHOUT THE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-4025-19
MICHAEL HERSEY,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted December 14, 2021 – Decided December 27, 2021
Before Judges Mayer and Natali.
On appeal from the New Jersey Department of
Corrections.
Michael Hersey, appellant pro se.
Andrew J. Bruck, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Chanell M. Branch, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Michael Hersey, an inmate at Bayside State Prison, appeals
from a May 12, 2020 final agency decision issued by respondent New Jersey
Department of Corrections (DOC) finding him guilty of prohibited act *.252,
encouraging others to riot, and imposing sanctions. We affirm.
On April 9, 2020, Hersey resided in a quarantine unit at Southern State
Correctional Facility. When the prison staff attempted to move additional
inmates into the unit, there was a disturbance in the day room. At 9:20 p.m., the
unit's current inmates began yelling, cursing, and demanding no additional
inmates be relocated to the unit. At 9:30 p.m., officers directed the inmates
leave the day room, return to their bunks, and report for the standard inmate
count.
The inmates ignored the officers' commands, refusing to leave the day
room and report to their wings as instructed. Instead, the inmates remained in
the day room, watching television, using the kiosks, and talking on the
telephones. Additionally, some inmates used a table in the day room to barricade
the door to the unit. Because the inmates were wearing surgical masks due to
COVID, the officers on duty and video surveillance footage could not identify
the inmates who remained in the day room after being instructed to return to
their bunks. The events that evening were recorded on the prison's video
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monitoring system. The officers were eventually able to secure, process, and
transport the inmates to another prison facility six hours after the disruption
began.
Hersey was charged with *.252, encouraging others to riot, a prohibited
act under N.J.A.C. 10A:4-4.1(a).1 Hersey requested and was granted the
assistance of a counsel substitute and pleaded not guilty. In response to the
charge, Hersey claimed to be asleep in his bunk during the incident.
A hearing was conducted before a hearing officer. Telephone records
listing the names of inmates using the phones after 9:30p.m. were submitted into
evidence. Those records indicated Hersey made a six-minute telephone call at
9:44 p.m., after all inmates were instructed to vacate the day room and return to
their bunks. The hearing officer also considered video evidence of the incident
and the written statements of the officers who resolved the disturbance.
The hearing officer found Hersey guilty of prohibited act *.252. She
found Hersey "was on the phone after count was called, [and] his actions
contributed and promoted the lack of order and disarray." The hearing officer
sanctioned Hersey to 210 days' administrative segregation, ninety days' loss of
1
Sixty-two other inmates were charged with the same institutional infraction as
Hersey.
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commutation time, and ten days' loss of recreation privileges. In support of the
sanctions imposed, the hearing officer explained, "[i]nmate[']s behaviors could
have led to violence and injuries for staff and inmates . . . . Said behaviors cannot
be tolerated and any future behavior of this type must be deterred for safety and
security purposes."
Hersey administratively appealed the hearing officer's decision to the
DOC. The agency affirmed the hearing officer's decision because "[t]he video
supports that all inmates were actively engaged in the incident whether acting
out, [or] refusing to disperse. There is no video evidence that any inmate took
precaution to recuse himself during the incident to his bunk . . . ." In affirming
the hearing officer's decision, the DOC concluded Hersey's behavior during the
incident contributed to the general chaos, disorder, and danger within the prison.
On appeal, Hersey argues "[t]he disciplinary hearing officer's finding of
guilt on the charge of riot was not supported by substantial evidence and
therefore it must be reversed." We disagree.
Our review of an agency determination is limited. In re Stallworth, 208
N.J. 182, 194 (2011). We will not reverse an administrative agency's decision
unless it is "arbitrary, capricious[,] or unreasonable[,] or [] not supported by
substantial credible evidence in the record as a whole." Ibid. (omission in
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original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
The "final determination of an administrative agency . . . is entitled to substantial
deference." In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 541
(2016) (citing Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl.
Prot., 191 N.J. 38, 48 (2007)).
N.J.A.C. 10A:4-4.1(a) provides:
An inmate who commits one or more of the following
numbered prohibited acts shall be subject to
disciplinary action and a sanction that is imposed by a
Disciplinary Hearing Officer . . . . Prohibited acts
preceded by an asterisk (*) are considered the most
serious and result in the most severe sanctions . . . .
Prohibited acts are further divided into five categories
of severity (Categories A through E) with Category A
being the most severe and Category E the least severe.
A Category A offense, including prohibited act *.252, encouraging others
to riot, "shall result in a sanction of no less than 181 days and no more than 365
days of administrative segregation per incident . . . ." A hearing officer's finding
that an inmate committed a prohibited act must be supported by "substantial
evidence." N.J.A.C. 10A:4-9.15(a).
Having reviewed the record, we are satisfied there was substantial credible
evidence to support finding Hersey guilty of prohibited act *.252. Although the
unit's inmates wore masks, the video evidence and officers' statements supported
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the determination that the inmates in the day room at the time of the disruption
failed to comply with commands to return to their bunks and be counted. There
is no evidence in the record corroborating Hersey's statement that he was
sleeping in his bunk at the time of the incident. The evidence demonstrated
Hersey and other inmates in the day room defied orders issued by the officers.
Thus, the inmates' conduct that day, including Hersey, interfered with the
prison's ability "to manage th[e unit's] volatile environment." Russo v. N.J.
Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).
To the extent we have not specifically addressed Hersey's remaining
contentions, we find those contentions lack sufficient merit to warrant a
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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