MICHAEL STANTON VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2912-15T4
A-1126-16T1
A-3618-16T3
MICHAEL STANTON,
Plaintiff-Appellant,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS,
Defendant-Respondent.
__________________________________
Submitted September 13, 2018 – Decided September 21, 2018
Before Judges Reisner and Mawla.
On appeal from the New Jersey Department of
Corrections.
Michael Stanton, 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 in A-2912-15 and A-
1126-16; Tasha Bradt, Deputy Attorney General, on the
brief in A-3618-16).
PER CURIAM
Michael Stanton is presently serving a thirty-five year sentence in New
Jersey State Prison for various offenses. In A-2912-15, Stanton appeals from a
February 5, 2016 adjudication by the New Jersey Department of Corrections
(DOC), finding him guilty of prohibited act *.004, fighting with another person.
See N.J.A.C. 10A:4-4.1. In A-1126-16, he challenges an October 4, 2016
adjudication finding him guilty of prohibited act .705, commencing or operating
a business or group for profit, or commencing or operating a non-profit
enterprise without approval of the prison administrator. In A-3618-16, Stanton
appeals from a December 8, 2016 decision adjudicating him guilty of prohibited
acts *.10/*.803, attempting to participate, or participating, in activities related
to a security threat group. We have consolidated these three appeals for
purposes of this opinion. We affirm the adjudications in A-2912-15 and A-
1126-16, and reverse and remand A-3618-16 to the DOC for a re-hearing. The
relevant facts underlying each appeal are set forth below.
A-2912-15
On January 31, 2016, a senior correction officer observed Stanton fighting
with two other inmates. The officer's report stated he sounded an alert and used
pepper spray "in the direction of . . . Stanton" to break up the fight. When
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Stanton was handcuffed he informed the officer the two other inmates had stolen
his television. Prison officials discovered Stanton's television in the o ther
inmates' cell. Stanton and the other inmates were charged with committing
prohibited act *.004, fighting with another person. The other inmates were also
charged with prohibited act .210 for the unauthorized possession of Stanton's
television.
At the subsequent hearing, Stanton argued he was defending himself. The
hearing officer concluded no evidence of self-defense was provided, and instead
found "[a] Code 33 was called and [pepper] spray deployed." Stanton was found
guilty of the fighting charge, and sanctioned with loss of recreation privileges,
loss of commutation time, and administrative segregation.
A-1126-16
On August 6, 2016, the DOC recorded a telephone call between Stanton
and his girlfriend wherein he asked "whether she had received any emails or
phone calls" and "what mail she is getting ready." His girlfriend replied, "some
books." He also asked her if a "guy" had contacted her about the money for the
books and "if she included a self-addressed, stamped envelope" with the
correspondence. Stanton also stated "out of everyone writing, [he was] the only
one with books for sale." In response to his girlfriend stating she was "making
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sure all of the pages are there," Stanton said "they'll tell you that . . . whoever
get[s] it."
On the same date, the DOC confiscated a large box addressed to Stanton,
which contained "magazines featuring women in scantily-clad clothing" and
invoices from a wholesale periodical distributor. Stanton's girlfriend had made
deposits totaling $750 into his prison account between June 21 and August 18,
2016. Invoices addressed to Stanton from the magazine distributor bearing
names such as: "Dime Piece"; "Body"; "Thick"; "XXL"; "IAdore"; "Spicy
Latinas"; "BlackMen"; "Seductive"; and "Shygirl" were dated July 29 and
August 19, 2016. The invoices were contemporaneous with the deposits to
Stanton's prison account.
The DOC investigation also revealed Stanton had received "a large manila
envelope" containing letters from "inmates at other correctional facilities
throughout the country" asking him to accept their writing samples for
publication. One of the inmate letters referred to Stanton as "Author/CEO" of
"Starchild Enterprise." Stanton also received a letter from PRC Book Printing
addressed to "Starchild Publishing" in response to his request for a price quote.
As a result, the DOC investigation found Stanton intended to distribute
the magazines to other inmates in exchange for "pecuniary benefit," and had
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discussed both the magazines and "the business" during the call with his
girlfriend. The investigation also found the girlfriend's statement she was
"making sure all of the pages are there" concerned the magazines. As a result,
the investigation concluded Stanton participated in two business ventures f or
profit, namely, one involving the sale of adult magazines to inmates, and the
other involving the national solicitation of writing samples from inmates for
publication in Stanton's capacity as "CEO" of Starchild Publishing.
Accordingly, he was adjudicated guilty of operating a business.
A-3618-16
On January 25, 2015, a DOC investigator intercepted outgoing mail
authored by Stanton to his girlfriend. According to the investigator, the mail
was intercepted because it contained disapproved content. As a result, Stanton
was charged with *.803/*.010, attempting to participate, or participating, in
activities related to a security threat group.
The hearing officer found the Special Investigations Division (SID)
received authorization to open the mail, as required by DOC regulations, but did
not explain why the authorization was given. Prior to this appeal, we granted
the Attorney General's motion to remand, for the DOC to explain the basis for
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the authorization to open Stanton's mail. On appeal, Stanton argues the DOC
refused to explain why SID believed the mail contained disapproved content.
I.
N.J.A.C. 10A:4-9.15(a) requires "a disciplinary hearing officer's
adjudication that an inmate committed a prohibited act . . . be based on
substantial evidence in the record." Figueroa v. 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(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). The DOC
cannot base disciplinary determinations on "a subjective hunch, conjecture or
surmise of the factfinder." Id. at 191. Moreover, determinations cannot be based
upon "bare net opinion." Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-
04 (App. Div. 2000).
"In light of the executive function of administrative agencies, judicial
capacity to review administrative actions is severely limited." George Harms
Constr. Co., Inc. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). The "final
determination of an administrative agency . . . is entitled to substantial
deference." In re Eastwick Coll. LPN-RN Bridge Program, 225 N.J. 533, 541
(2016).
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An appellate court will not reverse an agency's final
decision unless the decision is "arbitrary, capricious, or
unreasonable," the determination "violate[s] express or
implied legislative policies," the agency's action
offends the United States Constitution or the State
Constitution, or "the findings on which [the decision]
was based were not supported by substantial, credible
evidence in the record."
[Ibid. (quoting Univ. Cottage Club of Princeton N.J.
Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48
(2007)).]
However, we must complete "more than a perfunctory review" of agency
matters, and we will not "merely rubberstamp an agency's decision." Figueroa,
414 N.J. Super. at 191 (internal citations and quotations omitted).
II.
On appeal in A-2912-15, Stanton reiterates his claim of self-defense. In
A-1126-16, Stanton argues he wanted to see the document authorizing the DOC
to search his mail. Stanton also argues the disciplinary decision was not
supported by substantial credible evidence. In A-3618-16, Stanton does not
challenge the DOC's determination that the contents of his letter contained
material related to a security threat group. Instead, he claims the DOC took too
long to provide discovery in connection with the remand hearing, and did not
establish the grounds to open his mail under N.J.A.C. 10A:18-2.7(d). We
address these arguments in turn.
A-2912-15T4
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A.
As we noted, in A-2912-15, Stanton was sanctioned for committing
prohibited act *.044, fighting with another person. On appeal, he contends the
two other inmates attacked him and stole his television. Indeed, the televis ion
was found in their cell, and the DOC confirmed it belonged to Stanton. The
contemporaneous report of the incident states Stanton told officers the other
inmates stole his television and it "escalated" into a "physical altercation." At
the hearing, Stanton claimed he was defending himself. He did not call any
witnesses or ask to confront any witnesses to corroborate his claim of self -
defense.
An inmate charged with fighting may assert self-defense, "and if
established, [self-defense will] exonerate the individual charged with the
infraction." DeCamp v. N.J. Dep't of Corr., 386 N.J. Super. 631, 640 (App. Div.
2006). N.J.A.C. 10A:4-9.13(f) states:
[T]he inmate claiming self-defense shall be responsible
for presenting supporting evidence that shall include
each of the following conditions:
1. The inmate was not the initial aggressor;
2. The inmate did not provoke the attacker;
3. The use of force was not by mutual agreement;
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4. The use of force was used to defend against
personal harm, not to defend property or honor;
5. The inmate had no reasonable opportunity or
alternative to avoid the use of force, such as, by retreat
or alerting correctional facility staff; and
6. Whether the force used by the inmate to respond
to the attacker was reasonably necessary for self-
defense and did not exceed the amount of force used
against the inmate.
Here, Stanton offered no evidence to corroborate his claim of self-defense
beyond merely asserting it. To sustain a claim of self-defense, Stanton had to
present evidence addressing the factors of N.J.A.C. 10A:4-9.13(f), in order to
rebut the officer's observations. In the absence of such evidence, the DOC's
determination Stanton was fighting because the other inmates had taken his
television and that he was pepper sprayed in order to stop the altercation, which
demonstrated he was the aggressor, was supported by sufficient credible
evidence. Stanton's claim he was attacked and acting in self-defense was not
supported by credible evidence. Accordingly, we affirm the DOC's decision in
A-2912-15.
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B.
In A-1126-16, Stanton argues the DOC's determination he was guilty of
.705, commencing or operating a business or group for profit, should be reversed
for lack of substantial credible evidence. We disagree.
Stanton pled not guilty and denied he owned or operated a business. He
claimed he advised unpublished authors how to properly submit their
manuscripts for publication. However, he denied publishing any manuscripts.
He explained he was a published author and writer for Starchild Publishing, and
owned the copyright to his own book. He claimed that during the phone call
with his girlfriend, he spoke with her "about books and emails" because she was
his publicist.
The DOC found Stanton guilty and imposed sanctions. The DOC
concluded Stanton intended to sell the magazines because of the large shipment
he received, and found he was the CEO of Starchild Publishing based upon the
letters he received from other inmates and the printing company. The DOC
further concluded the telephone call supported the charge.
We are satisfied the evidence relied upon by the DOC was substantial and
credible enough to support a finding of guilt, and was not based upon a "hunch,
conjecture, [and] surmise." Figueroa, 414 N.J. Super. at 191. Indeed, Stanton
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received a box of adult magazines, whose quantity was inconsistent with
personal use, which supports the finding he was either commencing or operating
a business for profit. Stanton's telephone calls referenced compensation for h is
efforts, and sought assurances third-parties had received complete copies of
shipments. The telephone conversations, coupled with a large deposit into
Stanton's JPay account, supported the finding he was in the magazine-selling
business. Stanton's letter inquiry seeking a price quote from a publisher, and
inmate letters asking him to publish their writing, supports the conclusion
Stanton was operating a publishing business. 1
For these reasons, we conclude the DOC's determination was based upon
substantial, credible evidence in the record. We affirm the adjudication of guilt
under the .705 charge.
C.
Finally, in A-3618-16, Stanton argues the DOC determination he was
guilty of *.803/*.010 for attempting to participate, or participating, in activitie s
related to a security threat group should be reversed because the DOC violated
1
Stanton's claim he was denied due process because the investigator failed to
produce written verification he was authorized to read Stanton's mail lacks
merit. No regulation requires the DOC to furnish a copy of the confidential
authorization list in a disciplinary hearing.
A-2912-15T4
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due process by delaying his hearing, and did not give a reason why his mail was
suspected to contain disapproved content. We agree the latter argument is cause
to reverse the DOC's determination and remand for rehearing.
Before addressing our reasons for reversal, we address Stanton's due
process claim. As we noted, this matter was remanded pursuant to a motion by
the Attorney General for the DOC to make findings regarding the reasons for
opening Stanton's mail. N.J.A.C. 10A:4-9.7 states:
(a) Hearings that have been postponed for further
investigation shall be reviewed by the Disciplinary
Hearing Officer or Adjustment Committee to determine
if an additional postponement is warranted:
1. Within 48 hours of the postponement, if the
inmate is in Prehearing Disciplinary Housing; or
2. Within seven calendar days of the
postponement if the inmate is in any other unit.
Should the seventh day fall on a Saturday,
Sunday or holiday, the last day for the hearing
shall be the business day immediately following
the weekend or holiday.
(b) Additional postponements shall be granted only
in exceptional circumstances.
N.J.A.C. 10A:4-9.8(b) provides:
The inmate shall be entitled to a hearing within seven
calendar days of the alleged violation, including
weekends and holidays, unless such hearing is
prevented by exceptional circumstances, unavoidable
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delays or reasonable postponements. Should the
seventh day fall on a Saturday, Sunday or holiday, the
last day for the hearing shall be the business day
immediately following the weekend or holiday.
We reject Stanton's argument that the delay of his hearing was tantamount
to a due process violation. N.J.A.C. 10A:4-9.9(a) states:
The failure to adhere to any of the time limits
prescribed by this subchapter shall not mandate the
dismissal of a disciplinary charge. However, the
Disciplinary Hearing Officer or Adjustment Committee
may, in its discretion, dismiss a disciplinary charge
because of a violation of time limits. Such discretion
shall be guided by the following factors:
1. The length of the delay;
2. The reason for the delay;
3. Prejudices to the inmate in preparing
his/her defense; and
4. The seriousness of the alleged infraction.
The postponement here was for purposes of obtaining information for
Stanton to use in the hearing to confront the DOC's witness. Stanton failed to
show how he was prejudiced by a postponement whose purpose was to aid him
in asserting a defense.
N.J.A.C. 10A:18-2.7(d) states outgoing correspondence "shall not be
opened, read or censored unless there is reason to believe" (emphasis added) it
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contains disapproved content, and the prison administrator gives advance
approval. Unlike the charge in A-1126-16, where the basis to open Stanton's
mail was justified by his telephone conversations with his girlfriend and large
deposits to his prison account, here the record contains no basis for the DOC's
actions. We are constrained to reverse and remand the adjudication of guilt
because the DOC failed to make findings regarding its grounds for opening
Stanton's mail.
We note there is no dispute the SID unit received authorization to open
the mail, as required by the DOC regulations. According to the record, SID
sought authorization based on a belief that the mail was gang related
correspondence. However, even after we granted the Attorney General's motion
for a remand to enable the DOC to set forth why it believed Stanton's mail
contained disapproved content, the record still lacks an explanation. Indeed, the
initial DOC adjudication stated: "See exhibit D4 for questions [and] responses
. . . relied upon to determine guilt[.] . . . [T]he reason . . . [Stanton's] mail was
opened is given in exhibits A8 [and] D4." However, exhibit A8 is redacted and
offers no meaningful information, and D4 is missing from the record. The DOC
disciplinary appeal disposition sheds no further light on the subject, and only
states: "SID Investigators are trained in recognizing STG material and their
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reports have to [be] relied upon as factual. SID stated they had reason to believe
that the correspondence contained disapproved content and they received
authorization to search correspondence as per policy."
We acknowledge that the DOC may be reluctant to provide an explanation
for the decision to open an inmate's mail as it may compromise prison security
or reveal the identity of a confidential informant. However, as we noted, our
review is neither perfunctory nor a rubber stamp. In order for us to engage in a
meaningful review, an explanation must be provided, by confidential appendix
if necessary. For these reasons, we reverse and remand the guilty adjudication
under .705 for a second hearing, which must include an explanation of the DOC's
reason to believe Stanton's mail contained disapproved content.
The adjudications in A-2912-15 and A-1126-16 are affirmed. A-3618-16
is reversed and remanded for re-hearing and further findings in accordance with
this opinion. We do not retain jurisdiction.
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