EARL DOWNEY 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NOT FOR PUBLICATION WITHOUT THE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-4034-19
EARL DOWNEY,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted November 30, 2021 – Decided January 5, 2022
Before Judges Rothstadt and Natali.
On appeal from the New Jersey Department of
Corrections.
Earl Downey, appellant pro se.
Andrew J. Buck, Acting Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Nicholas Falcone, Deputy
Attorney General, on the brief).
PER CURIAM
Earl Downey, an inmate at Southern State Correctional Facility (SSCF),
appeals from a May 12, 2020 final agency decision issued by the 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, at the height of the COVID-19 pandemic, a riot erupted
at SSCF. At about 9:30 p.m., all sixty-three inmates housed in Unit 2R, a Covid-
19 quarantine unit, congregated in the unit's day room. All of the inmates,
including Downey, were recently transferred to the unit and wore face masks to
comply with DOC protocols to prevent the spread of COVID-19. At that time,
SSCF officers ordered all inmates in the unit to disperse from the day room and
stand count, which meant they were to return to their cell and sit on their bunks,
to facilitate the entry of an additional twelve inmates being transferred into their
unit. The inmates, who objected to the addition of more inmates into the unit,
refused to comply with the direction to stand count and, instead, remained in the
day room. A riot ensued.
Some inmates barricaded the unit shut with a table from the day room up
against the door that officers attempted to enter through. Other inmates stood
around yelling and cursing at officers and each other. At times, inmates used
A-4034-19
2
computer kiosks and telephones, all without authorization and in direct violation
of officers' multiple orders to stand count.
Downey was among the inmates who violated the orders to disperse from
the day room and stand count. According to Downey, he failed to comply with
orders by using the phone at 9:39 p.m., for nine minutes while officers attempted
to restore control and safety by ordering the inmates back to their cells.
Officers could not identify the inmates and their roles in the riot at all
times because the inmates were all new to the unit, wore face masks, and blocked
officers' line of sight through the door with a table. Video surveillance in the
unit recorded the riot, but also did not help identify inmates because of the face
masks.
About six hours after the riot commenced, the DOC's Special Operations
Group and K-9 Unit were able to secure and transfer all sixty-three inmates,
including Downey, to a quarantine unit at South Woods State Prison.
On April 11, 2020, Downey was charged with *.252, encouraging others
to riot, a prohibited act under N.J.A.C. 10A:4-4.1(a).1 Prior to his hearing,
Downey requested and was granted the assistance of a counsel substitute, and
1
The other sixty-two inmates in Unit 2R at the time of the riot were also charged
with the same institutional infraction as Downey.
A-4034-19
3
pleaded not guilty. In response to the charge, he admitted he used the phone
during the riot, claiming it was out of fear and he did not want anything to do
with what was going on. He also submitted a statement from an inmate witness
and was granted confrontation of three of the officers who were involved in the
transfer of the inmates to the unit.
On April 30, 2020, a hearing officer presided over Downey's hearing. In
addition to Downey's evidence, the hearing officer considered video evidence of
the incident, phone logs, and the written statements of the officers that included
responses to questions from inmates. According to that evidence, none of the
inmates in the unit, who were all in the day room at the time, followed the
directive to stand count.
At the conclusion of the hearing, the hearing officer issued a written
decision, concluding Downey "encouraged inmates to riot," thereby committing
the prohibited act charged. The officer found there were several orders to stand
count that were given at 9:30 p.m., which were clear and audible to Downey,
and he used the phone starting at 9:39 p.m. for nine minutes, which was not
permitted at that time. As for his claim that he made a phone call out of fear,
the hearing officer determined Downey was not credible. The hearing officer
concluded "his behavior can be viewed as non-compliant and therefore a part of
A-4034-19
4
the overall disturbance. Any behavior that is not compliant with staff orders can
be viewed as encouraging non-compliant behaviors from others." In imposing
his sanction, the hearing officer explained his behavior "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." Downey was sanctioned to a 210-day administrative
segregation, ninety-day loss of commutation time, and ten-day loss of recreation
privileges.
Downey's subsequent administrative appeal was denied on May 12, 2020.
In the written decision issued by an assistant superintendent, the DOC upheld
the hearing officer's determination and stated the following:
The charge was reviewed and the sanction also
reviewed. All procedural safeguards were adhered to
by the [DHO] and found to be in accordance with
NJAC10. The 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 or uncover his face to ensure
identity for non-participation. Additionally, the
custody interviews were consistent in their responses.
There is no support or compelling argument to not
support the sanction as written.
This appeal followed.
A-4034-19
5
On appeal, Downey argues the DOC's decision was not supported by
substantial credible evidence, and therefore must be reversed. We disagree.
Our review of an agency decision is limited. In re Stallworth, 208 N.J.
182, 194 (2011); Malacow v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App.
Div. 2018). We presume the validity of the "administrative agency's exercise of
its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171
(2014). We will not disturb an agency's decision on appeal "unless it is arbitrary,
capricious[,] or unreasonable or not supported by substantial credible evidence
in the record." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App.
Div. 2010). Substantial credible 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)).
In the context of prisons, we have long recognized they are "dangerous
places, and the courts must afford appropriate deference and flexibility to
administrators trying to manage this volatile environment." Russo v. N.J. Dep't
of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999). A reviewing court "may
not substitute its own judgment for the agency's, even though the court might
have reached a different result." Stallworth, 208 N.J. at 194 (quoting In re
A-4034-19
6
Carter, 191 N.J. 474, 483 (2007)). "This is particularly true when the issue under
review is directed to the agency's special 'expertise and superior knowledge of
a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
However, our review is not "perfunctory" or meant to merely
"rubberstamp an agency's decision." Figueroa, 414 N.J. Super. at 191 (citation
omitted). We must "engage in a careful and principled consideration of the
agency record and findings." Ibid. (citation omitted). Additionally, we are not
bound by an agency's "interpretation of a statute or its determination of a strictly
legal issue." Carter, 191 N.J. at 483 (citation omitted).
Pursuant to N.J.A.C. 10A:4-4.1(a):
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
[DHO] . . . . Prohibited acts preceded by an asterisk (*)
are considered the most serious and result in the most
severe sanctions . . . . Prohibited acts are further
subclassified into five categories of severity (Category
A through E) with Category A being the most severe
and Category E the least severe.
Category A prohibited acts include *.252, encouraging others to riot. Ibid.A DHO's decision that an inmate committed a prohibited act must be supported
by "substantial evidence." N.J.A.C. 10A:4-9.15(a); Figueroa, 414 N.J. Super.
at 192.
A-4034-19
7
Applying these principles, we conclude the DOC's decision that Downey
was guilty of prohibited act *.252, encouraging others to riot, was supported by
substantial credible evidence. Although his specific role in the riot at all times
cannot be determined, it was undisputed he made a nine-minute phone call
during the riot, after officers ordered all inmates to stand count. His admission
that he was on the phone at that time was sufficient evidence to support his guilt.
Additionally, phone records and officers' reports corroborated that he was on the
phone in direct violation of officers' orders to stand count. His deliberate
violation encouraged others' non-compliant behavior, including rioting, and
consequently interfered with the prison's ability "to manage th[e unit's] volatile
environment." Russo, 324 N.J. Super. at 584. Under these circumstances, we
have no cause to disturb the DOC's determination in this case.
Affirmed.
A-4034-19
8