WILLIAM MENTER 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NOT FOR PUBLICATION WITHOUT THE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-1249-20
WILLIAM MENTER,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted March 7, 2022 – Decided March 16, 2022
Before Judges Fasciale and Vernoia.
On appeal from the New Jersey Department of
Corrections.
William Menter, appellant pro se.
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Stephanie Trotter, Deputy
Attorney General, on the brief).
PER CURIAM
William Menter appeals from a December 3, 2020 final agency decision
by the New Jersey Department of Corrections (DOC) finding Menter guilty of
committing prohibited act *.002 (assault of any person), N.J.A.C. 10A:4-
4.1(a)(1)(ii), and imposing sanctions. Menter is incarcerated at New Jersey
State Prison, serving a life sentence with a mandatory-minimum term of one
hundred years.
The prohibited act pertains to an incident that required Correctional
Officer Mohammed to respond to a code 33 in Menter's cell unit.1 A correctional
officer called the code after Menter refused to "give up the phone" he was using.
Mohammed, who assisted Correctional Officer Walls, observed Menter standing
by his cell door with hands raised in "an aggressive manner." Menter refused to
comply with the officers' orders to get on the ground.
Walls deployed chemical spray after Menter failed to comply. Menter
then struck them on their bodies. Sergeant Mihalik stated that when she and a
suited team of officers responded to the code 33, Menter was cuffed and secured
in a cell. A witnessing inmate stated that Menter was agitated by an earlier
1
A code 33 alerts DOC staff of the existence of an emergency in the prison
facility requiring officer assistance.
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incident where his cell door was not opened for dinner at the same time as the
other inmates.
Menter pled not guilty at the disciplinary hearing, as he claims that he
was, in fact, the victim of an assault by Walls, Mohammed, and other officers
gathered at his cell during the code 33. Menter requested a polygraph, witness
statements, confrontation of witnesses, and surveillance video footage. A prison
administrator denied his request for a polygraph. Walls, Mohammed, and
Mihalik provided statements, to which Menter had the opportunity to confront
with questions. The hearing officer also denied Menter's request for video
footage because it was "irrelevant."
After reviewing the evidence and witness statements, the hearing officer
found Menter guilty of assault under N.J.A.C. 10A:4-4.1(a)(1)(ii), imposed
sanctions of 30 days of loss of recreation privileges, 180 days of loss of
commutation time, and 200 days in the Restorative Housing Unit. Menter
administratively appealed. The DOC then rendered its decision upholding the
hearing officer's decision.
On appeal, Menter argues:
POINT I
THE DISCIPLINARY HEARING OFFICER
VIOLATED [MENTER'S] DUE PROCESS RIGHTS,
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AS SET FORTH IN AVANT V. CLIFFORD2, WHEN
THE HEARING OFFICER MADE FINDINGS NOT
BASED ON SUFFICIENT CREDIBLE EVIDENCE IN
THE RECORD.
POINT II
[MENTER'S] PROCEDURAL DUE PROCESS
RIGHTS WERE VIOLATED WHEN THE HEARING
OFFICER DENIED HIM ACCESS TO THE AREA
VIDEOTAPE THAT WOULD HAVE SHOWN HE
WAS TELLING THE TRUTH ABOUT THE
INCIDENT.
POINT III
[MENTER'S] PROCEDURAL DUE PROCESS
RIGHTS WERE VIOLATED WHEN THE HEARING
OFFICER DENIED HIM CREDIT FOR THE TIME
HE HAD SPENT IN PRE-HEARING DETENTION
HOUSING: CONTRARY TO [N.J.A.C.] 10A:4-
10.1(f).3 (Not raised below).
Our standard of review is well-settled. We defer to administrative
agencies in recognition of their "expertise and superior knowledge of a
particular field." In re Herrmann, 192 N.J. 19, 28 (2007). In our review of the
DOC's exercise of authority, we must acknowledge "[t]he breadth and
importance of the Commissioner's expertise and discretionary authority in
2
Avant v. Clifford, 67 N.J. 496 (1975).
3
N.J.A.C. 10A:4-10.1(f) was recodified to N.J.A.C. 10A:5-6.1(f).
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matters of prison policy, regulation[,] and administration." Ortiz v. N.J. Dep't
of Corr., 406 N.J. Super. 63, 70 (App. Div. 2009).
Menter's contention that he was denied his due process right to present
documentary evidence is without merit. The limited due process rights to which
inmates in our prisons charged with disciplinary infractions are entitled were
first enumerated by our Court in Avant, 67 N.J. at 525-30, and are codified in
DOC regulations, N.J.A.C. 10A:4-9.1 to -9.28. Among the rights granted by
Avant is the limited right to "present documentary evidence in their defense
when such procedure will not be unduly hazardous to institutional safety or
correctional goals." 67 N.J. at 529.
Menter contends that security camera evidence from the South Compound
hallway and stairwell, from 6:00 p.m. to 7:15 p.m., would support his claim that
a group of officers attacked him without provocation. Menter argues the footage
would prove that Mihalik and the suited team were already in his unit prior to
any code being called and contradict the witnesses' accounts. We agree with the
hearing officer that any video of the hallway and stairwell is irrelevant to
Menter's claims. The incident occurred on the third floor at Menter's cell. There
is no video footage available for that area, and any video of the suited team using
the South Compound hallway and stairwell would not refute Mohammed and
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Walls' accounts that Menter assaulted them. As such, the hearing officer
properly denied Menter's request for the surveillance video.
An inmate's due process rights also include: written notice of the charges
at least twenty-four hours prior to the hearing, N.J.A.C. 10A:4-9.2; a fair
tribunal, N.J.A.C. 10A:4-9.15; a limited right to call witnesses, N.J.A.C. 10A:4-
9.13; a limited right to confront and cross-examine adverse witnesses, N.J.A.C.
10A:4-9.14; a written statement of the evidence relied upon and the reasons for
the sanctions imposed, N.J.A.C. 10A:4-9.24; and the assistance of counsel-
substitute in certain circumstances, N.J.A.C. 10A:4-9.12. Here, we are satisfied
that Menter was afforded all his due process rights. He was provided written
notice of the violation, given a written statement of reasoning, afforded counsel-
substitute, and had the opportunity to confront adverse witnesses, all before an
impartial hearing officer.
A disciplinary hearing officer's decision that an inmate is guilty of a
prohibited act must be based on substantial evidence in the record. Figueroa v.
N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010). "Substantial
evidence means such evidence as a reasonable mind might accept as adequate to
support a conclusion." Id. at 192 (internal quotation marks omitted) (quoting In
re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).
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We conclude that the hearing officer's finding of guilt was based on
substantial evidence in the record. The hearing officer listened to Menter's
phone call, the end of which started the altercation, and heard the officer asking
Menter for the phone. Walls, Mohammed, and Mihalik's statements were mostly
consistent with each other and contradicted Menter's claims that a group of
officers attacked him. Menter confronted the witnesses with questions, and the
hearing officer assessed their credibility. Therefore, we find no reason to disturb
the final agency decision upholding the hearing officer's finding.
Menter also argues that he did not receive credit for time spent in Pre -
hearing Disciplinary Housing, but we will not consider this argument because
he failed to raise it on appeal to the DOC. See Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234 (1973) (refusing to consider issues not properly presented to
the trial court unless they concern jurisdiction or "matters of great public
interest").
Affirmed.
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