KHILIL BRYANT 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NOT FOR PUBLICATION WITHOUT THE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-3337-19
KHILIL BRYANT, a/k/a
KHILL BRYANT, and
DYMILL BRYANT,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted January 5, 2022 – Decided March 17, 2022
Before Judges Whipple and Susswein.
On appeal from the New Jersey Department of
Corrections.
Khilil Bryant, appellant pro se.
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Donna Aarons, Assistant Attorney
General, of counsel; Chanell Branch, Deputy Attorney
General, on the brief).
PER CURIAM
Petitioner Khilil Bryant appeals from a final agency decision by the
Department of Corrections (DOC) affirming his administrative conviction for
two counts of assaulting any person, N.J.A.C. 10A:4-4.1(a)(1)(ii) (*.002), and
one count of conduct that disrupts or interferes with the orderly running of a
correctional facility, N.J.A.C. 10A:4-4.1(a)(2)(xix) (*.306). Bryant argues that
the DOC's decision was arbitrary and capricious for failing to consider his
medical condition—diabetes—as it could have explained his uncharacteristic,
violent actions. After carefully reviewing the record, we remand for a new
hearing at which the hearing officer shall make specific findings as to whether
Bryant's assaultive conduct was a voluntary act considering his medical
condition at the time of the incident.
I.
We discern the following facts and procedural history from the record.
On March 4, 2020, Bryant's cellmate, Scott Audrique, notified Corrections
Officer Mears that Bryant was banging his head against the cell doors. Officer
Mears went to the cell to evaluate the situation and witnessed Bryant
demonstrating "extremely odd behavior." The record indicates that Officer
Mears had prior knowledge that Bryant is a diabetic. Upon witnessing Bryant's
behavior, Mears initiated a "Code 53"—a procedure used when a medical
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emergency arises. Sergeant Brown and multiple staff members responded to the
call.
Officer Mears witnessed Bryant run out of his cell. When Sergeant Brown
arrived at the scene, he witnessed Bryant "shouting obscenities." Brown ordered
Bryant "to get down on the ground." Bryant refused and began running towards
Officer Mears. Mears then "took [Bryant] to the ground." Bryant "became
extremely combative" and placed his arms around Mears' head "in a head lock
fashion." At this point, another officer on the scene, Officer Y. Brown, 1 initiated
a Code 33—a procedure for when there is an emergency in the prison and an
officer requires assistance.
Sergeant Brown struck Bryant twice in the shoulders with a baton. In
addition, while attempting to handcuff Bryant, two officers "delivered a burst of
[oleoresin] OC Spray to [] Bryant." The officers handcuffed Bryant and carried
him down the stairs. The record reflects that while Bryant was being carried, he
"again became combative and delivered a front kick to the stomach" of one of
the officers. That prompted officers to take Bryant "back down to the ground."
1
In the interest of clarity, the record shows that Officer Y. Brown and Sergeant
Brown are two different people.
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Once on the ground, Bryant became compliant and medical staff placed him on
a stretcher.
Bryant was charged with two counts of assaulting any person, *.002, and
one count of conduct which disrupts or interferes with the orderly running of a
correctional facility, *.306. The hearing was initially scheduled for March 6,
2020, but was postponed for medical reasons. The hearing was convened on
March 13, 2020, at which Bryant pled not guilty. A memorandum was submitted
into evidence from Jeffrey Pomerantz, DO,2 the Site Medical Director,
explaining that "it is possible for a . . . diabetic to have a sudden drop in blood
sugar despite compliance with [a] medical regimen. The patient has not evinced
noncompliance with [his] medical regimen . . . . [I]t is possible to have no
warning symptoms of [hypoglycemia] with a brittle diabetic."
The hearing officer found Bryant guilty on all charges. The hearing
officer determined that although Bryant had no prior history of institutional
violence, on this occasion, he assaulted two officers. The hearing officer
acknowledged that Bryant suffers from a medical condition—diabetes—but
determined that Bryant "must be aware of his medical condition and the
consequences" that may be associated with that condition. The hearing officer
2
"DO" refers to Doctor of Osteopathic Medicine.
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thus rejected Bryant's contention that he had no recollection of the incident
because of low blood sugar.
Bryant was sanctioned to 365 days of administrative segregation, 120
days' loss of commutation time, and 15 days' loss of recreation privileges.
Bryant administratively appealed the decision. The DOC determined that
Bryant's "behavior was disruptive in nature and will not be tolerated. The
sanction imposed was proportionate to the offense. No leniency will be afforded
to you."
This appeal followed. Bryant raises the following contentions for our
consideration:
POINT I
GUILTY FINDING ARBITRARY AND
CAPRICIOUS WHEREIN APPELLANT'S
HYPOGLYCEMIA CLAIM WAS IGNORED.
POINT II
HEARING OFFICER DECISION IN EXPLAINING
HER FINDINGS DOES NOT SUFFICE FOR THE
RECORD.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. Our Supreme Court has held that inmates are afforded due process
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rights in disciplinary proceedings. Avant v. Clifford, 67 N.J. 496, 525–33
(1975); see also McDonald v. Pinchak, 139 N.J. 188, 193–94 (1995); Jacobs v.
Stephens, 139 N.J. 212, 215 (1995). In Malacow v. N.J. Dep't of Corr., we
summarized an inmate's due process rights:
[a]n inmate facing disciplinary action must be provided
with the following limited protections: (1) written
notice of the charges, provided at least twenty-four
hours before the hearing, so the inmate can prepare a
defense; (2) an impartial tribunal, consisting of either
one [hearing officer] or a three-member adjustment
committee; (3) the assistance of a counsel substitute if
the inmate is illiterate or unable to collect or present
evidence; (4) the right to call witnesses and present
documentary evidence, provided it is not "unduly
hazardous to institutional safety or correctional goals";
(5) the right to confront and cross-examine adverse
witnesses; and (6), quoting the Standards on the Inmate
Discipline Program section 254.283, "a written
statement of the fact-findings is given to the inmate by
the [hearing officer] or by the adjustment committee
chairman as to the evidence relied upon, decision and
the reason for the disciplinary action taken unless such
disclosure would jeopardize institutional security."
[457 N.J. Super. 87, 93–94 (App. Div. 2018) (quoting
Avant, 67 N.J. at 525–33).]
As the Supreme Court noted in McDonald, the regulatory framework for
adjudicating charges "strike[s] 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." 139 N.J. at 202.
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The scope of our review is narrow. As a general matter, we will disturb
an agency's adjudicatory decision only upon a finding that the decision is
"arbitrary, capricious or unreasonable," or is unsupported "by substantial
credible evidence in the record as a whole." Henry v. Rahway State Prison, 81
N.J. 571, 579–80 (1980) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556,
562 (1963)). In determining whether an agency action is arbitrary, capricious,
or unreasonable, a reviewing court must examine:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482–83 (2007) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
Our deference to the adjudicatory decisions made by the DOC is
especially appropriate in view of that agency's important mission to safeguard
prison safety and security, which includes the protection of corrections officers.
See Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 238–39 (App. Div.
2019) (cautioning that a reviewing court should "not substitute its own judgment
for the agency's . . . ."). In Blanchard, we emphasized that "prisons are
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dangerous places, and the courts must afford appropriate deference and
flexibility to administrators trying to manage this volatile environment." Id. at
238 (quoting Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div.
1999)). We accept that DOC must use all reasonable means to sanction and
deter violence.
Furthermore, we are deferential to an agency's expertise. See Murray v.
State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001)
(quotation marks omitted) (quoting In re Vineland Chem. Co., 243 N.J. Super.
285, 307 (App. Div. 1990)) ("[W]here there is substantial evidence in the record
to support more than one regulatory conclusion, it is the agency's choice which
governs."). We add, however, that while the DOC has unquestioned expertise
in maintaining security within an institution, it does not necessarily have
comparable expertise with respect to medical issues, especially when, as in this
case, the agency does not rely upon medical evidence in the form of an expert
opinion.
As a general matter, in an appeal from a final decision in a prisoner
disciplinary matter, we consider whether there is substantial evidence in the
record to support the Department's decision that the inmate committed the
prohibited act. Blanchard, 461 N.J. Super. at 237–38 (citing Henry, 81 N.J. at
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579–80 (1980)). "Substantial evidence has been defined alternately as 'such
evidence as a reasonable mind might accept as adequate to support a conclusion,'
and 'evidence furnishing a reasonable basis for the agency's action.'" Id. at 238
(quoting Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192, (App. Div.
2010)); 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."). We note, however, that "our review is not 'perfunctory,' nor
is 'our function . . . merely to rubberstamp an agency's decision.'" Ibid. (quoting
Figueroa, 414 N.J. Super. at 191). Rather, "[w]e are constrained to engage in a
'careful and principled consideration of the agency record and findings.'" Ibid.(quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).
In a criminal prosecution, the State bears the burden of proving the
defendant committed a "voluntary" act. N.J.S.A. 2C:2-1(a) provides:
A person is not guilty of an offense unless his [or her]
liability is based on conduct which includes a voluntary
act or the omission to perform an act of which he [or
she] is capable. A bodily movement that is not a
product of the effort or determination of the actor,
either conscious or habitual, is not a voluntary act
within the meaning of this section.
Proof of a voluntary act is one of the minimum conditions for imposing
criminal liability. See State v. Penna, 178 N.J. 297, 304 (2004) (citing State v.
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Sexton, 160 N.J. 93, 98 (1999); N.J.S.A. 2C:2-1, -2). The drafters of the New
Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9 (penal code),
recognized that the requirement of a voluntary act "is reflective of the fact that
the law cannot hope to deter involuntary movement." N.J.S.A. 2C:2-1(a) cmt.
1 (1971). The penal code commentators further explained that N.J.S.A. 2C:2-
1(a) "should be interpreted to exclude from the definition [of voluntary act]
reflex actions, convulsions . . . [and] states of physical activity where self-
awareness is grossly impaired or even absent, such as epileptic fugues . . . ."
N.J.S.A. 2C:2-1(a) cmt. 3 (1971).
We believe the "bedrock" requirement to prove a voluntary act, see Penna,
178 N.J. at 304, applies not only to criminal prosecutions but also to
administrative prosecutions for inmate disciplinary infractions. The regulations
governing the conduct of inmates cannot hope to deter or otherwise prevent
involuntary movements resulting from a medical crisis when, as in this case, the
inmate appears to be dutifully complying with his prescribed medical regimen.
III.
We need spend little time addressing Bryant's argument that that the DOC
failed to present substantial evidence of his assaultive conduct. See N.J.A.C.
10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing shall be based upon
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substantial evidence that the inmate has committed a prohibited act."). That
portion of Bryant's argument lacks sufficient merit to warrant extensive
discussion. R. 2:11-3(e)(1)(D). The record shows that Bryant became
"extremely combative" and placed Officer Mears in a headlock. Further, the
record shows that while Bryant was being carried down the stairs, he "again
became combative and delivered a front kick to the stomach" of an officer.
Defendant's conduct, without question, constitutes an assault and disrupted or
interfered with the security or orderly running of the correctional facility .
The critical fact-sensitive issue raised in this case, however, is not whether
Bryant physically resisted and assaulted corrections officers, but rather whether
his violent outburst was a volitional act. Bryant argues that the "[g]uilty finding
[was] arbitrary and capricious wherein appellant's hypoglycemia claim was
ignored." Although we do not agree that Bryant's hypoglycemia claim was
"ignored," we do agree that the hearing officer paid insufficient attention to
whether Bryant's uncharacteristic violent outburst was the result of an acute
hypoglycemic event. The hearing officer's decision discounted the medical
evidence, reasoning that Bryant should have been aware of his medical condition
and the consequences that may be associated with that condition.
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The hearing officer's finding that Bryant was aware of his diabetes misses
the point. We are not dealing with a situation where, for example, a person with
a potentially debilitating medical condition ignores medical advice and chooses
to operate a vehicle or heavy machinery. In that example, the individual is
disregarding the risk of a seizure or other crippling medical event. Conversely,
an inmate has no choice in deciding when to interact with corrections officers
or other inmates. A diabetic inmate may be aware of the disease and yet be
unable to prevent a hypoglycemic episode.
Nor does the record suggest that Bryant was noncompliant with his
medical regimen to address his diabetes. On the contrary, the record shows
sufficient evidence that he was complying with his prescribed medical regimen.
The record also shows evidence that a sudden drop in blood sugar,
hypoglycemia, might occur without warning. In these circumstances, we are not
convinced the hearing officer made adequate findings to discount the possibility
that defendant's aberrant behavior was the result of a medical emergency rather
than a voluntary act amenable to deterrence by the threat of discipline.
We recognize that Pomerantz's report did not expressly opine that Bryant
experienced hypoglycemia at the time of the incident, much less that a sudden
drop in blood sugar level caused Bryant's bizarre and ultimately combative
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behavior. We nonetheless conclude that Pomerantz's report raised the issue
whether Bryant's uncharacteristic behavior—which led to a code 53 medical
emergency—and the ensuing violent, profanity-laced outburst was volitional.
We note the medical evidence Bryant submitted at the hearing was not listed
under the "Summary of evidence relied on to reach [a] decision." As we have
noted, although we generally defer to the DOC in matters of prison safety and
security, see Blanchard, 461 N.J. at 238–39, DOC bears responsibility to provide
proper reasons for imposing sanctions, see Malacow, 457 N.J. Super. at 94
(noting that even if an inmate's due process rights are not violated, remand may
be warranted if the hearing officer fails to provide adequate reasons for
sanctions).
Because the hearing officer in this instance failed to provide a suitable
explanation for why the medical evidence did not support Bryant's claim, we
conclude the decision as it stands is arbitrary and capricious. We therefore
remand the matter for a new hearing at which the hearing officer shall make
findings concerning the medical evidence and whether defendant's assaultive
conduct was a voluntary act or instead a result of an acute medical condition
over which Bryant had no warning or control. If the DOC chooses to present
additional medical evidence, it shall provide adequate notice to Bryant before
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the re-hearing. We offer no opinion on whether Bryant committed a voluntary
act when he resisted and assaulted the corrections officers.
Reversed and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
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