OMAR TORRES VS. 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NOT FOR PUBLICATION WITHOUT THE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-3839-19
OMAR TORRES,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Argued December 13, 2021 – Decided December 23, 2021
Before Judges Vernoia and Firko.
On appeal from the New Jersey Department of
Corrections.
Remi L. Spencer argued the cause for appellant
(Spencer & Associates, LLC, attorneys; Remi L.
Spencer, of counsel and on the brief).
Christopher C. Josephson, Deputy Attorney General,
argued the cause for respondent (Andrew J. Bruck,
Acting Attorney General, attorney; Jane C. Schuster,
Assistant Attorney General, of counsel; Christopher C.
Josephson, on the brief).
PER CURIAM
Omar Torres, formerly an inmate at the Southern State Correctional
Facility (SSCF),1 appeals from a final decision of the New Jersey Department
of Corrections (DOC) upholding a hearing officer's determination he committed
prohibited act *.252, encouraging others to riot, N.J.A.C. 10A:4-4.1(a)(1)(xii),2
and imposing disciplinary sanctions. 3 Having reviewed the record in light of the
applicable legal principles, we are convinced there is insufficient evidence
supporting the DOC's decision, and we reverse.
1
Torres was released on parole on August 10, 2020. State of New Jersey,
Department of Corrections, https://www20.state.nj.us/DOC-
Inmate/details?x=1546674&n+90 (last visited Dec. 15, 2021). The DOC agrees
that because Torres is on parole, and his disciplinary record while incarcerated
in State prison could affect his future release from prison if he violates parole,
the issues raised on appeal are not moot.
2
Subsequent to its final decision in this matter, the Commission adopted a
regulation consolidating prohibited act *.252, encouraging others to riot, into
prohibited act *.251, rioting. Thus, the current regulation no longer includes
prohibited act *.252, and prohibited act *.251 is now defined as "rioting or
encouraging others to riot." See N.J.A.C. 10A:4-4.1(a)(1)(xx) (2021); 53 N.J.R.
923(a) (May 17, 2021). The change has no effect on the disposition of this
appeal.
3
Torres was transferred to South Woods State Prison (SWSP) immediately
following the incident giving rise to the charge that he committed prohibited act
*.252.
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I.
On April 9, 2020, Torres was one of sixty-three inmates incarcerated in
SSCF's Housing Unit 2-Right (Unit 2R), which was designated as a temporary
housing unit for inmates exposed to COVID-19. Unit 2R consists of a "day-
space" and six separate wings with a capacity to house ninety-six inmates.
At approximately 9:20 p.m., DOC staff attempted to move twelve
additional inmates into Unit 2R. As the twelve new inmates attempted entry
into Unit 2R, inmates already in the unit "began yelling, cursing, and
demanding" that the twelve other inmates not enter the unit. DOC staff then
temporarily moved the twelve inmates to a different location.
At 9:30 p.m., DOC officers announced a "lock up" order requiring that all
inmates in Unit 2R immediately "go down their wings, and get on their bunks
until [a head] count has been conducted and cleared." Nonetheless,
approximately ten minutes later, some inmates pushed a picnic table against a
gate to block access to the unit. DOC Major Floyd Cossaboon reported that
DOC Lieutenant Ernest "advised all inmates housed on Unit 2R that if they were
not participating in the refus[al] to count and unit-wide disturbance[,] they were
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to go down their wings and remain on their assigned bunks."4 DOC officer
Valentine noted in his report that "[m]any orders were given . . . to count up and
go down th[eir] wings. All orders were ignored. [The inmates] continued to be
disruptive."
Major Cossaboon's report states that despite Lieutenant Ernest's order, and
other repeated orders made over the public address system, "[a]t no time was
any inmate observed to have counted up as ordered and remain on their assigned
bunk." Major Cossaboon further explained the inmates' "[un]authorized
entering and exiting of the day-space and usage of the phones and kiosks
contributed to the" disturbance and "comprised the safe and orderly running of
the institution."
The DOC's Special Operations Group and "K[-]9 [Unit]" were deployed
to SSCF to quell the riot. They secured the unit, and by 3:30 a.m. the following
morning, all sixty-three Unit 2R inmates were identified, processed, and
transported to SWSP.
On April 11, 2020, DOC Lieutenant Chard served Torres with a
Disciplinary Report charging Torres with committing prohibited act *.252,
4
Where the record on appeal does not disclose either the first name or surname
of a DOC employee, we use the names provided. We intend no disrespect in
doing so.
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encouraging others to riot. N.J.A.C. 10A:4-4.1(a)(1)(xii). The report alleged
that on April 9, 2020, Torres and the sixty-two other inmates assigned to Unit
2R "yell[ed], curs[ed], and demand[ed] that no other inmates be housed in the"
unit; "pushed [a] large unit table in front of the tier entrance"; threatened
violence against the officers and new inmates if they attempted to enter the unit;
and ignored orders to disperse "and present themselves to be removed from the"
unit.
Torres pleaded not guilty to the charge, asserting he "was on the phone
[and] then down [his] wing" during the incident. He was assigned counsel
substitute and requested that the DOC obtain statements from two other inmates.
One inmate stated he was "standing on the wing with a group of guys, talking
and convers[ing] when everything was going on," and that he "was talking to
inmate Torres." The other inmate said he helped Torres make his bed at 9:00
p.m. and that Torres "got on the phone [at] 9:15 [p.m.] and 9:25 [p.m.]."5
The hearing officer granted Torres' request for confrontation with
Lieutenant Ernest and two DOC officers, Valentine and Russo, through written
questions. In response to Torres' questions, Lieutenant Ernest and officers
5
We note the disturbance did not begin until 9:30 p.m., and it was not until then
that the inmates were first ordered to return to their bunks for a head count.
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Valentine and Russo each stated they could not identify "any inmate NOT
involved in the incident." Officers Valentine and Russo both admitted they
"could [not] see anyone in their bed area to determine if anyone was complying
with the issued orders/procedures." Lieutenant Ernest explained he could not
see into the inmates' bed areas because "[i]nmates were standing at the entrance
of the unit wings blocking [his] view of the wings."
Counsel substitute submitted a written statement of position on Torres'
behalf denying the charge and claiming the DOC lacked evidence Torres
participated in the incident. The hearing officer also considered the written
reports from various DOC officers, DOC records, the responses of the officers
to Torres' confrontation questions, and a series of video recordings of the
incident from SSCF's security cameras.
In her written decision, the hearing officer acknowledged she was "unable
to identify [any] individual inmate" on the video recordings of the incident
because the inmates "w[ore] mask[s] and fac[ed] the gate" against which the
picnic table was pushed. The hearing officer also rejected what she interpreted
as Torres' defense, finding that "standing out on the wing, is not being on your
bunk for count, which [adds] to the overall chaos and rioting behavior. " The
hearing officer further found the video recordings "show[] [the] majority of
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inmates [from Unit 2R] congregating in the dayroom, disobeying orders and
rules given."
Although she determined "it is not known what each inmate's specific role
was in the disturbance," and there is no evidence Torres is captured on any of
the video recordings, the hearing officer nevertheless found Torres g uilty of
encouraging others to riot by failing to comply with orders that inmates return
to their bunks pending a head count. More particularly, the hearing officer made
the following limited findings of fact supporting her determination Torres
committed the charged offense:
1. [Torres] was part of a group that received orders.
(PA System announced count up at 9:30 p.m.)[.]
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] lieutenant
to go down their wings)[.]
3. The orders were loud enough that the entire group
could have heard the orders[.]
4. [Torres] had ample time to comply with the order[.]
5. No inmate, after receiving warnings, complied with
staff orders, (video shows inmates did not disperse).
6. [Torres] was part of the group [residing in Unit 2R]
as evidenced by the escort reports [taken by prison staff
after securing all inmates present in Unit 2R.]
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The above findings support [the charge that Torres]
encouraged inmates to riot.
The hearing officer further reasoned that "[j]ust because [Torres] was not
seen actually pushing the table, does not mean he wasn't involved by yelling,
refusing orders and not being on his assigned bed during count." The hearing
officer concluded that "[a]ny behavior that is not compliant with [the] staff
orders can be viewed as encouraging and inciting a non-[compliant] behaviors."
The hearing officer found Torres committed prohibited act *.252,
encouraging others to riot, and imposed the following sanctions: 210 days of
administrative segregation, ninety days loss of commutation time, and ten days
loss of recreation privileges. Torres administratively appealed the hearing
officer's decision, and on May 6, 2020, DOC Associate Administrator Michael
Ridgeway upheld the finding of guilt and the sanctions imposed. Associate
Administrator Ridgeway determined the video recordings "support[] that all
inmates were actively engaged in the incident whether acting out OR refusing
to disp[e]rse." This appeal followed.
II.
Our scope of review of an agency decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011); Malacow v. N.J. Dep't of Corr., 457 N.J. Super. 87,
93 (App. Div. 2018). Reviewing courts presume the validity of the
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"administrative agency's exercise of its statutorily delegated responsibilities."
Lavezzi v. State, 219 N.J. 163, 171 (2014). "We defer to an agency decision
and do not reverse 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).
In determining whether an agency's action is arbitrary, capricious, or
unreasonable, we consider in part "whether the record contains substantial
evidence to support the findings on which the agency based its action." Allstars
Auto. Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018)
(citation omitted). "'Substantial evidence' means 'such evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't
of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv.
Elec. & Gas Co., 35 N.J. 358, 376 (1961)). The term has also been defined as
"evidence furnishing a reasonable basis for the agency's action." McGowan v.
N.J. State Parole Bd., 347 N.J. Super. 544, 562 (2002).
As we have long recognized, "[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
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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,
482 (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)).
However, our review of a final agency decision is not "perfunctory," nor
is it "our function . . . merely [to] rubberstamp an agency's decision[.]"
Figueroa, 414 N.J. Super. at 191 (citation omitted). We are required "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)). 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. of Manalapan, 140 N.J. 366, 378 (1995).
Torres argues the hearing officer's determination, which the DOC
adopted, is not supported by substantial evidence establishing he encouraged
others to riot. We agree. The record is devoid of evidence supporting the
hearing officer's determination and the DOC's final decision that Torres
encouraged others to riot. To be sure, the evidence established both a riotous
disturbance in Unit 2R, and an apparent failure by many, and perhaps most, of
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the inmates to comply with repeated orders to leave the day-space and return to
their wings and to their bunks. Conspicuously absent from the record presented
to the hearing officer is any evidence Torres actually participated in the
disturbance or failed to return to his bunk.
The hearing officer recognized the dearth of evidence against Torres. She
expressly found "it is not known what each inmate's specific role was in the
disturbance," and she "was unable to identify [any] individual inmate" in the
video recordings of the disturbance. Thus, even the hearing office recognized
there is no evidence Torres was in the day-space where the disturbance and
blockage of the gate occurred, or that he was one of the inmates who refused to
disperse.
Indeed, the hearing officer did not find defendant encouraged others to
riot by moving the table to block the entrance to the unit or by otherwise being
directly involved in the riotous conduct of some of the inmates. The hearing
officer found defendant encouraged the riot only by failing to comply with the
repeated orders that he return to his bunk and await a head count. On appeal,
the DOC recognizes there is no evidence Torres directly participated in the
disturbance in the day-space or that he failed to disburse from that location after
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the disturbance began; the DOC argues only that Torres committed prohibited
act *.252 by failing to follow orders to return to his bunk for a head count.
The record, however, is bereft of any evidence Torres failed to comply
with the orders. The DOC did not present any direct evidence Torres did not
comply with the orders, return to his bunk, and await a head count, and the DOC
does not point to any evidence establishing Torres violated the orders. In fact,
Lieutenant Ernest, and DOC officers Valentine and Russo, admit in their
responses to Torres's written confrontation questions that they were unable to
see if any of the inmates, including Torres, returned to their bunks pursuant to
the orders.
Despite this admitted inability of the DOC's witnesses to observe whether
inmates returned to their bunks for a head count, each of them illogically
asserted that not one of the inmates were observed complying with the orders.
In other words, the DOC's case against Torres is based on a claim neither he nor
any other inmate returned to their bunks for the head count, but the DOC's
witnesses admit they could not observe whether inmates returned to their bunks
for the head count.6 The hours of video recordings of Unit 2R during the incident
6
Major Cossaboon's statement "[a]t no time was any inmate observed to have
counted up as ordered or remain on their assigned bunk" is illogically based on
the same evidence.
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do not support the DOC's claim; they do not show whether Torres returned to
his cell, sat on his bunk, and waited for a head count, or not.
We also reject any claim Lieutenant Ernest's and officers Russo's and
Valentine's statements that they could not identify "any inmate NOT involved
in the incident" support a finding Torres failed to comply with the lock-down
orders. The inability of the respective officers to identify inmates not involved
in the incident does not constitute affirmative evidence that any inmate,
including Torres, was involved in the incident. Rather, the statements simply
confirm the officers' lack of any information establishing Torres committed the
charged offense.
In sum, the DOC failed to present any evidence Torres did not comply
with the orders directing that he "lock down." Indeed, the hearing officer's
findings of fact do not include a specific determination that Torres took any
action, or failed to take any action, that encouraged others to riot. Instead, the
hearing officer more generically determined that all the inmates failed to comply
with the orders and, by implication, found Torres committed the prohibited act.
As the hearing officer aptly recognized, the DOC did not present any other
evidence from which it could be properly concluded Torres participated in the
April 9, 2020 incident.
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Torres's statement in response to the charges – that he was on his wing
and on the phone – also does not support the hearing officer's determination he
failed to comply with the lock-down orders. Torres' statement has no temporal
context. That is, his terse statement does not detail the time he was on his wing
or on the phone.
Moreover, the incident began at 9:30 p.m., and the DOC's own evidence
shows Torres was not on the telephone after the incident started. The DOC's
records list the names of all inmates who used the Unit 2R phones "after 9:30
[p.m.] on" April 9, 2020, and Torres' name is not included. Thus, Torres'
statement he used the phone could only properly support the conclusion that he
was on the phone on the wing prior to the commencement of the incident at 9:30
p.m. and the subsequent lock-down orders. Torres's other statement, that he was
on the wing during the disturbance, also does not support a finding he
encouraged others to riot; the DOC ordered all inmates to go to their wings after
the disturbance began.
We do not discount the dangers and institutional issues presented by
inmates who, in the face of the COVID-19 pandemic, violate DOC rules en
masse, create a riotous disturbance, and disregard orders designed to return order
and safety to the facility. Those circumstances, however, do not relieve the DOC
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of presenting substantial evidence supporting disciplinary charges that may
result in serious sanctions affecting the length and conditions of an inmate's
incarceration.
Here, the hearing officer's and DOC's determinations Torres encouraged
others to riot are untethered to any evidence in the record. Because "disciplinary
actions against inmates must be based on more than a subjective hunch,
conjecture[,] or surmise of the factfinder," Figueroa, 414 N.J. Super. at 191, we
reverse.
Reversed.
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