MICHAEL COPPOLA v. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

NOT FOR PUBLICATION WITHOUT THE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-3787-19
MICHAEL COPPOLA, a/k/a
MICHAEL CAPPOLA,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Argued December 14, 2021 – Decided January 19, 2022
Before Judges Haas and Mitterhoff.
On appeal from the New Jersey Department of
Corrections.
John Vincent Saykanic argued the cause for appellant.
Daniel S. Shehata, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Jane C. Schuster, Assistant
Attorney General, of counsel; Daniel S. Shehata, on the
brief).
PER CURIAM
Petitioner Michael Coppola, an inmate at Bay State Prison, appeals from
a May 6, 2020 final agency decision of the New Jersey Department of
Corrections (DOC), which upheld an adjudication and sanctions for committing
prohibited act *.252, encouraging others to riot, N.J.A.C. 10A:4-4.1(a).
Recently, another panel of this court decided a related matter arising from the
same facts and circumstances.1 For substantially the same reasons as our
colleagues, we vacate the determination and remand for further proceedings.
Coppola's charge arises from an incident that occurred when he was an
inmate at Southern State Correctional Facility (SSCF). In April 2020, Housing
Unit 2-Right at SSCF (Unit 2R) was designated as a "quarantine unit" for the
temporary housing of inmates who had been in close contact with an inmate or
staff member who was symptomatic with COVID-19. On April 9, 2020, SSCF
custody staff were tasked with moving thirty-five inmates from three housing
wings into Unit 2R. The first two groups were moved into Unit 2R without
1
Alex Rosa v. New Jersey Department of Corrections, No. A-4010-19 (App. Div.
Dec. 20, 2021).
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incident. Coppola was a member of this initial group and was transferred from
Unit 8R to 2R without incident.
At around 9:20 p.m., as the final group of twelve inmates were being
processed into 2R, the sixty-three inmates already in Unit 2R entered the Unit's
day-space and began yelling, cursing, and demanding that no additional inmates
be housed on the unit. The Unit 2R inmates also threatened the twelve inmates
entering the Unit, telling them to not enter the Unit, and were yelling to each
other not to allow anyone onto the Unit.
At 9:30 p.m., SSCF officers temporarily removed the twelve inmates and
the institutional "Lock-up" was called for the entire facility in order to facilitate
a count of the inmates and to place them in their cells for the night. Despite the
call for "Lock-up," the inmates on Unit 2R refused several orders to leave the
day-space and report to their wings for the inmate count and continued watching
TV, using the kiosks, and remaining on the telephones. At approximately 9:40
pm, several unidentified inmates pushed a table up against the tier gate in an
attempt to create a barricade and prevent anyone else from entering. At this
time, Lt. Trevor Ernest of SSCF arrived on the Unit and advised all inmates
housed in Unit 2R that if they were not participating in the refusal to stand count,
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they were to return to their wings and remain on their bunks. None of the
inmates, however, returned to their bunks as ordered.
At 10:00 p.m., Major Floyd Cossaboon arrived at SSCF and monitored
Unit 2R in real-time via security cameras. He "observed inmates from every
wing milling about the unit. There were no wings that were not participating in
their refusal to leave the day space and 'count-up.'" He also observed inmates
from all six housing wings moving in and out of the day-space, and observed
inmates huddled in a bathroom. Many of the inmates were wearing surgical
masks or altered clothing items to cover their faces, and therefore could not be
identified.
Due to the prolonged defiance of orders by the inmates, the Department
of Correction's Special Operations Group (SOG) and K-9 Unit were activated
and dispatched to SSCF to quell the disturbance. By 3:30 a.m. on April 10, all
sixty-three inmates from Unit 2R were identified, processed, and transported to
a quarantine unit at South Woods State Prison.
Coppola maintains that he did not participate in the disturbance. He states
that, after being moved to Unit 2R, he was unpacking his belongings and making
his bed when he "heard a commotion at some point and went out to the day space
to see a table pushed up to the entrance gate." He states that when the
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disturbance began, he walked around to find out what was happening, and noted
that "most people were scared and panicked." Coppola went to the kiosk and at
9:38 sent an email to Administrator Erin Nardelli which stated:
Attn Erin Nardelli.[] Last night my entire wing from
unit 8 got moved here to unit 2. We have some pressing
issues. First we would like confirmation that we will
be put back in population after 14 days with no
symptoms. Next, Unit 8 ordered commissary
[W]ednesday and are due to [receive] on [M]onday.
We from unit 8 who[] just got moved here request that
you please have commissary process our order and
deliver it to unit 2. I am afraid this is [p]aramount as
we have no food but what they give us. Please have
mercy. I know things are messy now and you are
reacting to this as best you can but please come visit me
here in unit 2 [I will] see you through the gate, I really
need to talk to you. It is too crowded in here and [there
is] no [air conditioning] on and [it is] hot. People are
very scared and worried here. Also we need more fresh
air outside one hour is crazy. I am certain we can work
these thing[s] out. PLEASE COME SEE ME. Thank
you. . . .
Coppola maintains that after he sent the email, he returned to his bunk "where I
belonged." He states that he was on his bunk when SOG arrived. Finally,
Coppola contends that on April 9, 2020, at approximately 9:00 p.m., he is visible
on camera in D wing on his bunk, and that he only left his bunk to see what was
happening and to try to talk to people. He further states that he used the kiosk
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to ask for help and denies he ever did anything to encourage a riot. Coppola
asserts that the video evidence clears him of any wrongdoing.
Coppola was charged with committing prohibited act *.252. On April 11,
2020 a Corrections Sergeant served the charge on him, conducted an
investigation, and referred the charge to a hearing officer for further action.
Coppola's hearing occurred on April 30, 2020 after several postponements
stemming from his requests to take a polygraph, for confrontation of officers,
and to allow the hearing officer to review the record. He requested, and was
granted, the assistance of a counsel substitute and pleaded "not guilty" to the
charge.
Coppola's request for confrontation with Officers Russo and Valentine,2
and Lt. Ernest, was also granted. At the hearing, he acknowledged that he was
among the sixty-three inmates housed on Unit 2R during the disturbance.
At the conclusion of the hearing, Disciplinary Hearing Officer J.
Zimmerman found Coppola guilty of the charge. He was sanctioned to 210 days'
administrative segregation, 90 days' loss of communication time, and 10 days'
2
The record before us does not provide the full names of Officers Russo and
Valentine, so their first names have been omitted from this opinion.
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loss of recreation privileges. In making his determination, the hearing officer
noted:
1. [Coppola] was part of a group that received orders
(PA system announced Count up at 9:30)
2. The orders were of such a nature that any reasonable
person would have understood the orders ([inmates]
were given several orders from officers and [the
lieutenant] to go down to their wings)
3. The orders were loud enough that the entire group
could have heard the orders
4. [Coppola] had ample time to comply with the orders
5. No [inmates], after receiving warnings complied
with staff orders (video shows [inmates] did not
disperse)
6. [Coppola] was part of the group as evidence by the
escort reports (see A5; 33 reports)
The above [six] findings, in addition to the evidence
noted above, support that [Coppola] encouraged others
to riot. A reasonable person would believe that
[Coppola's] actions and the actions of the group as a
whole reach a level to determine guilt of the charge
written.
He further noted:
[p]lease note, no evidence of mental health problems.
Sanction to deter [inmates] from encouraging others to
riot and to promote a safe and secure facility.
[Inmate's] behavior could have led to violence and
injuries for staff and other [inmates]. Orders are
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mandatory and must be followed immediately.
[Inmate's] actions caused SOG, the K-9 Unit, and
Central Transportation to be dispatched and mass
overtime to be accrued as the entire second shift was
mandatorily ordered to stay on duty for this incident.
[Inmate's] behaviors cannot be tolerated and any future
behavior of this type must be deterred for safety and
security purposes. DHO notes [inmate] has no
disciplinary history. Leniency shown as inmate was not
sanctioned to the max sanctions allowed per 10 A for a
Category A Offense.
Coppola filed an administrative appeal, relying on his written statements
submitted at the hearing. On May 12, 2020, Associate Administrator Michael
Ridgeway upheld the guilty finding and the sanctions.
On June 13, 2020, Coppola filed this appeal. On October 9, 2020, the
Attorney General's Office filed the Statement of Items comprising the record
(SICR). On October 14, 2021, the Attorney General's Office sent Coppola's
attorney all of the items contained in the SICR. On February 26, 2021, Coppola
filed a motion to supplement the record to include the video evidence and the
email communication. On April 9, 2021, the court granted Coppola's motion to
supplement the record by allowing the record to include the email
communication.
Petitioner presents the following arguments for our consideration:
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POINT I
THE FINAL AGENCY DECISION OF THE NJDOC
SHOULD BE REVERSED AND VACATED AS IT
WAS "ARBITRARY, CAPRICIOUS, OR
UNREASONABLE" AND LACKED FAIR SUPPORT
IN THE EVIDENCE AS MR. COPPOLA IS
INNOCENT OF THE DISCIPLINARY CHARGE OF
*.252 (ENCOURAGING OTHERS TO RIOT); THERE
WAS, IN FACT, NO "RIOT" AND MR. COPPOLA
DID NOTHING UNTOWARD DURING THE
ENTIRE INCIDENT.
POINT II
THE FINAL AGENCY DECISION OF THE NEW
JERSEY DEPARTMENT OF CORRECTIONS
(NJDOC) SHOULD BE REVERSED AND VACATED
DUE TO THE FAILURE OF THE NJDOC TO
PROVIDE MR. COPPOLA WITH THE EVIDENCE
AGAINST HIM PRIOR TO THE DISCIPLINARY
HEARING; SPECIFICALLY, HIS VIEWING OF THE
SURVEILLANCE VIDEOS AND THE
PRODUCTION OF HIS J-PAY COMMUNICATIONS
WITH ADMINISTRATION.
POINT III
THE FINAL AGENCY DECISION OF THE NEW
JERSEY DEPARTMENT OF CORRECTIONS
(NJDOC) SHOULD BE REVERSED AND VACATED
DUE TO THE FAILURE [] OF THE NJDOC TO
GRANT MR. COPPOLA'S REQUEST FOR A
POLYGRAPH EXAMINIATION.
Our scope of review of an agency decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011). "We defer to an agency decision and do not reverse
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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) (citing Bailey v. Bd. of Rev., 339 N.J.
Super. 29, 33 (App. Div. 2001)).
We have long recognized that "[p]risons 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 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)).
But our review is not "perfunctory[,]" nor is "our function . . . merely [to]
rubberstamp an agency decision[.]" Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186. 191 (App. Div. 2010). Instead, "our function is '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)).
A hearing officer's findings must be "sufficiently specific under the
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circumstances of the particular case to enable the reviewing court to intelligently
review an administrative decision and ascertain if the facts upon which the order
is based afford a reasonable basis for such an order." Lister v. J.B. Eurell Co.,
234 N.J. Super. 64, 73 (App. Div. 1989) (quoting In N.J. Bell Tel. Co. v.
Commc'ns Workers of Am., 5 N.J. 354, 377 (1950)). It is also well settled that
an agency's "interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan Realty,
L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Pursuant to N.J.A.C. 10A:4-4.1(a):
An inmate who commits one or more . . . numbered
prohibited acts shall be subject to disciplinary action
and a sanction that is imposed by a Disciplinary
Hearing Officer . . . . Prohibited acts preceded by an
asterisk (*) are considered the most serious and result
in the most severe sanctions . . . . Prohibited Acts are
further subclassified into six categories of severity
(Category A through F) with Category A being the most
severe and Category E the least severe and Category F
containing an opportunity for inmates found guilty of
specified infractions to participate in a substance-use
disorder treatment program . . . , if eligible. . . . 3
3
Under the version of N.J.A.C. 10A:4-4.1(a) in effect at the time of the April 9,
incident, Category F did not exist, and a finding of guilt for a Category A offense,
such as prohibited act *.252, carried with it "a sanction of no less than 181 days and
no more than 365 days of administrative segregation per incident." N.J.A.C. 10A:4-
4.1(a) (2017). The range of sanctions under N.J.A.C. 10A:4-4.1(a) was amended in
2021 so that now,
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To find an inmate guilty of a prohibited act under N.J.A.C. 10A:4-4.1, a
hearing officer must have substantial evidence of an inmate's guilt. N.J.A.C.
10A:4-9.15(a). "'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)).
Like our colleagues, we conclude that DOC's decision is not accompanied
by the necessary findings of fact to establish that Coppola encouraged a riot. As
a result, we remand this case to the DOC to address this deficiency.
After making certain factual findings, the hearing officer concluded that
"[w]hile it is not known what each inmate's specific role was in the disturbance,"
over [fifty percent] of the [inmates]. . . claimed to have
been on their beds . . . . Credibility is voided as videos
. . . show majority of [the inmates] congregating in the
dayroom, disobeying rules and orders given. Although
[a] finding of guilt for any offense in Category A may
result in a sanction of five to [fifteen] days in an
Adjustment Unit and up to 365 days in a Restorative
Housing Unit (R.H.U.) per incident and one or more of the
sanctions listed at N.J.A.C. 10A:4-5.1(e), unless a medical
or mental health professional determines that the inmate is
not appropriate for R.H.U. placement. Where a medical
or mental health professional has made such a
determination the inmate may receive one or more of the
less restrictive sanctions listed at N.J.A.C. 10A:4-5.1(e).
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there is no audio available on the videos, several reports
confirm that [inmates] were making threats and
encouraging others to riot.
Instead of specifically refuting Coppola's statements about what he was doing
during the incident, the hearing officer stated:
It should be noted that, an [inmate's] specific role in the
disturbance is not relevant. Whether the [inmate]
pushed the table against the gate himself, was walking
back and forth from the wing to the dayroom, was on
the phone or kiosk without permission, or was yelling
and cursing at the staff and [other inmates], his
behavior can be viewed as noncompliant and therefore
part of the overall disturbance. Any behavior that is not
compliant with staff orders can be viewed as
encouraging non-compliant behaviors from others.
[(emphasis added).]
We are also not confident that "any behavior that is not compliant with
staff orders can be viewed as encouraging non-compliant behaviors from others"
let alone "encouraging a riot," the charge against Coppola. Additionally, we do
not believe that Coppola's actions of using the kiosk and sending emails to
Administrator Nardelli rise to the level of inciting others to riot. DOC has not
presented any evidence in the record that Coppola sent his email with the intent
to extract concessions from Administrator Nardelli, nor has DOC introduced any
evidence to suggest that other inmates were aware that Coppola was going to
send this email on their behalf.
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On remand, the hearing officer may consider whether there is a basis to
charge Coppola with some other prohibited act (in which case he would be
entitled to notice and a hearing to address the newly charged infraction, N.J.A.C.
10A:4-9.16), or whether proof of Coppola's guilt regarding any infraction is
without basis. We note that Lieutenant Ernest stated when answering
confrontation questions:
Encouraging a riot exists whenever a group of inmates
assaults any official, destroys state property, bands
together to resist authority, refuses to return to their
housing assignments, or causes an overt act which
interferes with the orderly running of the institution or
endangers the well[]being of any staff member or
inmate. Additionally, the incident is uncontrollable by
the staff on duty at the time the situation develops. A
group demonstration exists whenever a group of
inmates passively protest a cause of concern, none of
the above criteria are met, and the incident is able to be
controlled by staff on duty at the time the situation
develops. Interfering with count exists when [one] or
more inmates refuse to go to their assigned bed/cell/etc.
to be counted when ordered to do so. Refusing to obey
an order exists when an inmate purposely, knowingly,
actively, physically, refuses to comply with a lawful
order.
We do not ignore the distinctions set forth in Lieutenant Ernest's statement
regarding the variety of acts that an inmate might commit which could be
considered "non-compliant," yet fail to constitute a Category A infraction of
"encouraging a riot." Indeed, as Lieutenant Ernest suggests, such acts might
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include less serious offenses, such as those delineated in Category B of N.J.A.C.
10A:4-4.1, including prohibited acts: *256 (refusing to obey an order of any
staff member); *.306 (conduct which disrupts or interferes with the security or
orderly running of a correctional facility); and *.502 (interfering with the taking
of count). N.J.A.C. 10A:4-4.1(a)(2).4 Accordingly, on remand, we trust the
hearing officer will carefully sift through the proofs presented and elicit any
additional information deemed necessary to determine whether there is
substantial evidence to conclude Coppola committed a given disciplinary
infraction. We express no opinion regarding the outcome of those proceedings.
We conclude that Coppola's remaining arguments are without sufficient
merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Vacated and remanded for further proceedings. We do not retain jurisdiction.
4
We acknowledge that at the time of the incident, offense *.256 was under Part D
of the code. We further observe that, during this time, a violation of a Category B
offense carried a sanction of "no less than 91 and no more than 180 days of
administrative segregation per incident" as well as other sanctions set forth in
N.J.A.C. 10A:4-5.1(g). N.J.A.C. 10A:4-4.1(a) (2017). On remand, the DOC should
apply the version of the code that was in effect at the time of the incident.
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