WALEED SALEH v. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0681-20
WALEED SALEH,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted December 8, 2021 – Decided January 5, 2022
Before Judges Gilson and Gooden Brown.
On appeal from the New Jersey Department of
Corrections.
Waleed Saleh, appellant pro se.
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Travis M. Anderson, Deputy
Attorney General, on the brief).
PER CURIAM
Waleed Saleh, an inmate at Bayside State Prison, appeals from the
September 28, 2020 final agency decision of the New Jersey Department of
Corrections (DOC) following a disciplinary hearing. The DOC upheld a hearing
officer's finding of guilt and imposition of sanctions for Saleh's commission of
prohibited act *.009, "misuse, possession, distribution, sale, or intent to
distribute or sell, an electronic communication device, equipment, or peripheral
that is capable of transmitting, receiving, or storing data and/or electronically
transmitting a message, image, or data that is not authorized for use or
retention," in violation of N.J.A.C. 10A:4-4.1(a)(1).1 Saleh was also found
guilty of prohibited act .754, giving or accepting money from a member of
another inmate's family or another inmate's friend with an intent to circumvent
any correctional facility or Departmental rule or with an intent to further an
illegal or improper purpose, but does not contest his adjudication on that charge.
We affirm.
We glean these facts from the record. An ongoing investigation conducted
by Investigator Kerr-Duane Merrington, Special Investigations Division (SID),
1
Under N.J.A.C. 10A:4-4.1(a), an inmate who commits a prohibited act "shall
be subject to disciplinary action and a sanction . . . imposed by a Disciplinary
Hearing Officer [(DHO)]." "Prohibited acts preceded by an asterisk (*) are
considered the most serious and result in the most severe sanctions . . . ." Ibid.
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revealed that Saleh had possessed and used a cellular telephone while housed at
East Jersey State Prison (EJSP) contrary to prison regulations. In a September
17, 2020 report, Merrington detailed the investigation during which Merrington
obtained and reviewed transcripts of institutional telephone calls and JPay2
messages belonging to Saleh, discussing dates and times of cell phone calls and
videos not made on the institutional phone system but rather through video call
apps Google Duo (Duo), WhatsApp, and FaceTime.
The transcripts also revealed "detailed financial transactions completed
through mobile payment services Venmo and Cash App." Additionally, the
investigation disclosed that Saleh had on several occasions instructed family
members to send money to inmate Michael Fields's girlfriend and inmate
Dammen McDuffie's daughter. Based on the information gleaned during the
investigation, a targeted search was conducted on August 5, 2020, which
uncovered a cellular telephone and USB charger in McDuffie's possession.
McDuffie had previously shared a bunk with Saleh during the times when the
2
JPay is a prison service provider that offers inmates, among other things, video
visitation, "a kind of Skype for the incarcerated." David Horton, Clause
Construction: A Glimpse into Judicial and Arbitral Decision-Making, 68 Duke
L.J. 1323, 1324 (2019).
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cell phone usage and financial transactions occurred. No cell phone was found
in Saleh's possession.
On September 18, 2020, a DOC officer served Saleh with the *.009 charge
and, after an investigation, referred the charge to a hearing officer for further
action. Saleh was offered but refused counsel substitute. After multiple
postponements to gather additional evidence, the hearing began on September
25, 2020. Saleh pled not guilty to the charge and made a statement explaining
that the transcript references to Duo by his seven-year-old son were
misconstrued. According to Saleh, his son refers to JPay and JPay video
messaging as Duo in the transcripts "because he thinks [Saleh is] at work" and
"does [not] know [he is] in jail." In support, Saleh submitted witness statements
from four inmates, Joseph Demauex, Vincenzo Viola, Ernest James, and Donte
Hatcher.
Demauex and Viola both stated Saleh's son refers to "Jpay videos" as
"Duo." Hatcher stated Saleh sends videos to his son "multiple times a day."
James, Saleh's bunkmate, stated he had never "seen Saleh . . . using a cellphone
in or outside the area." Saleh requested confrontation of Merrington and
inquired whether any "forensic analysis" of the seized phone revealed any
connections to Saleh's contacts or relatives. Merrington replied "phone not back
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yet." In a closing statement, Saleh admitted he was "guilty of sending money to
other inmate[s' family members]" but denied possession or use of a cell phone.
In finding Saleh guilty of the *.009 charge, the hearing officer determined
"[Saleh] offer[ed] no statement," and "no evidence to discredit . . . staff reports"
and concluded Saleh "used a cellular telephone while housed at EJSP." Further,
according to the hearing officer, "[c]onfrontation found no evidence to discredit
. . . [s]taff [r]eports" and witness statements "provided no information to
exonerate." Saleh was sanctioned to 120 days in the Restrictive Housing Unit,
120 days loss of commutation time, and permanent loss of contact visits.
Saleh filed an administrative appeal, asserting "[he] never possessed . . .
or used [a] cellphone," "forensic evidence [has not] been reviewed," and he
"[n]ever had a charge during [his] entire [eight] year[s of] incarceration." On
September 28, 2020, Assistant Superintendent James Russo upheld the guilty
finding and sanctions. Russo determined the hearing officer's decision "was
based on substantial evidence," and "[t]here was compliance with . . . procedural
due process safeguard[s]." In rejecting Saleh's plea for leniency, Russo
concluded "[t]he sanctions imposed . . . [were] appropriate for the infraction."
This appeal followed.
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On appeal, Saleh argues "the record evidence . . . is woefully incomplete,
and does not satisfy the substantial evidence standard for assessing an inmate's
guilt." Saleh also requests a remand for DOC "to conduct a forensic examination
of the confiscated cellular phone." Following his administrative appeal, Saleh
moved before this court for a limited remand to conduct a forensic examination
of the phone. We denied that motion. Thus, on this appeal, we only consider
Saleh's challenge to the sufficiency of the evidence.
Our role in reviewing a prisoner disciplinary decision is limited. Figueroa
v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). Generally,
the decision must not be disturbed on appeal unless it was arbitrary, capricious ,
or unreasonable, or lacked the support of "substantial credible evidence in the
record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);
see also N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing
shall be based upon substantial evidence that the inmate has committed a
prohibited act.").
"'Substantial evidence' means 'such evidence as a reasonable mind might
accept as adequate to support a conclusion.'" Figueroa, 414 N.J. Super. at 192(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). In that
regard, while we accord deference to the agency, "we will not perfunctorily
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review and rubber stamp the agency's decision," Balagun v. N.J. Dep't of Corr.,
361 N.J. Super. 199, 203 (App. Div. 2003), and 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)). Nonetheless, we "may not
substitute [our] own judgment for the agency's, even though [we] might have
reached a different result." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting
In re Carter, 191 N.J. 474, 483 (2007)).
When reviewing a prison disciplinary matter, we also consider whether
the DOC followed the regulations 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, 220-22 (1995). Admittedly, "[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of rights
due [to] a defendant in such proceedings does not apply." Jenkins v. Fauver,
108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S. 539, 556
(1974)).
However, the inmate's more limited procedural rights, initially set forth in
Avant v. Clifford, 67 N.J. 496, 525-46 (1975), are codified in a comprehensive
set of DOC regulations. See N.J.A.C. 10A:4-9.1 to -9.28. Those rights include
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an inmate's entitlement to a limited right to confront and cross-examine adverse
witnesses, N.J.A.C. 10A:4-9.14, the opportunity to present witnesses, N.J.A.C.
10A:4-9.13, and, in certain circumstances, the assistance of counsel substitute,
N.J.A.C. 10A:4-9.12. These regulations "strike the proper balance between the
security concerns of the prison, the need for swift and fair discipline, and the
due-process rights of the inmates." Williams, 330 N.J. Super. at 203 (citing
McDonald, 139 N.J. at 202).
Applying these principles, we are satisfied there was substantial credible
evidence in the record to support the finding of guilt. Saleh contends, "besides
his seven-year[-]old son's innocent, harmless, innocuous statement concerning
his request for his father to send him a 'DUO,'" there was "no credible and
objective evidence connecting [him] to the electronic device." However, the
transcripts of Saleh's institutional phone calls revealed several unexplained
references to "dates and times of telephone calls that were not made on the
institutional phone system." Saleh's contention is also belied by his mention of
Duo to individuals other than his son.
Lastly, the proceedings were conducted in accordance with all applicable
due process requirements, and the sanctions imposed were commensurate with
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the severity of the infraction and authorized under N.J.A.C. 10A:4-5.1 for
asterisk offenses.
Affirmed.
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