KENNETH BARR VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4797-17T4
KENNETH BARR,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted October 3, 2019 – Decided April 6, 2020
Before Judges Fuentes and Enright.
On appeal from the New Jersey Department of
Corrections.
Kenneth Barr, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Suzanne Davies, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Kenneth Barr is an inmate at the New Jersey State Prison in
Trenton. At all times relevant to this appeal, appellant was serving a forty-year
term of imprisonment with thirty-three years, eleven months, and thirty days of
parole ineligibility for murder, N.J.S.A. 2C:11-3a(1). He appeals from the final
administrative decision of the Department of Corrections (DOC) finding him
guilty of disciplinary infraction *005, threatening another with bodily harm or
with any offense against his or her person or his or her property, in violation of
N.J.A.C. 10A:4-4.1(a).
Appellant argues the hearing officer violated his right to due process
because he was not afforded the right to confront his accuser or call witnesses.
Appellant also claims the final agency decision was not supported by substantial
credible evidence. After reviewing the record before us and mindful of the
relevant standard of review, we affirm.
The disciplinary report entered on April 21, 2018 provided that appellant
approached Senior Corrections Officer D. Archibald and inquired about a
haircut he was scheduled to receive on the previous day. Archibald advised
appellant that he did not receive the haircut because they "ran out of time."
According to Archibald, appellant raised his voice and stated, "you know I can
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fight and I’m gonna [sic] kick your ass." Archibald immediately ordered
appellant into his cell; he complied without incident.
On April 22, 2018, appellant was charged with prohibited act *005.
Appellant was provided with counsel substitute pursuant to N.J.A.C. 10A:4-
9.12(a) and pled guilty to the charge. However, he nevertheless alleged that
Archibald threatened him first. Counsel substitute provided the hearing officer
with the following statement from appellant:
I asked [Archibald] why I didn’t get a haircut & the
officer said “you’re on the shit list. You’re not getting
shit.” I then said what do you mean by that [and] he said
“you stupid nigger you know what we do with
motherfuckers like you over here.” All I said is “you
know I can fight right.” And then I [was] locked in.
The hearing officer reviewed the record of the charge, including
appellant's inculpatory statement, and found him guilty of committing
disciplinary infraction *005, by threatening Archibald with bodily harm. The
hearing officer imposed a sanction of 150 days’ loss of communication time,
150 days of administrative segregation, and 20 days’ loss of recreation
privileges. The hearing officer also referred the matter to the Special
Investigation Division because the charge was based on a threat to a corrections
officer. Appellant appealed the decision claiming his statements were made in
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self-defense. The Superintendent of the penal institution rejected appellant's
self-defense assertion and upheld the hearing officer's decision. 1
This court's authority to review final decisions of a state administrative
agency is limited. In re Carter, 191 N.J. 474, 482 (2007). We are bound to
uphold such a decision absent "'a clear showing that it is arbitrary, capricious,
or unreasonable, or that it lacks fair support in the record.'" Hemsey v. Bd. of
Trs., Police & Firemen Ret. Sys., 198 N.J. 215, 223-24 (2009) (quoting In re
Herrmann, 192 N.J. 19, 27-28 (2007)). Appellate review "is guided by three
major inquires: (1) whether the agency’s decision conforms with relevant law;
(2) whether the decision is supported by substantial credible evidence in the
record; and (3) whether, in applying the law to the facts, the administrative
agency clearly erred in reaching its conclusion." Twp. Pharmacy v. Div. of Med.
Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013).
We review a prisoner disciplinary decision to determine whether there is
substantial evidence in the record to support the hearing officer's finding that
the inmate committed a prohibited act. We also review the hearing officer's
1
In response to this court's decision in DeCamp v. N.J. Dep't of Corr., 386 N.J.
Super. 631, 640-41 (App. Div. 2006), the DOC promulgated regulations that
describe under what circumstances an inmate may invoke self-defense. See
N.J.A.C. 10A:4-9.13(f).
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proceedings to ensure the inmate received procedural due process. McDonald
v. Pinchak, 139 N.J. 188, 194-95 (1995). However, we “may not substitute [our]
own factfinding for that of the agency." Tlumac v. High Bridge Stone, 187 N.J.
567, 573 (2006). We can overturn a decision only when it is “so wide off the
mark as to be manifestly mistaken." Ibid.
Here, the hearing officer's decision finding defendant guilty of
disciplinary infraction *005 in violation of N.J.A.C. 10A:4-4.1(a) was not
arbitrary or capricious. The decision is supported by substantial credible
evidence in the record and appellant received all the procedural protections to
which he was entitled.
Affirmed.
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