ADAM REED VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

A
                                NOT FOR PUBLICATION WITHOUT THE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-4720-18

ADAM REED,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted February 10, 2021 – Decided March 4, 2021

                   Before Judges Vernoia and Enright.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Adam Reed, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sookie Bae, Assistant Attorney General, of
                   counsel; Beonica McClanahan, Deputy Attorney
                   General, on the brief).

PER CURIAM
      Appellant Adam Reed, an inmate at New Jersey State Prison, appeals from

the May 23, 2019 final determination of the Department of Corrections (DOC)

upholding a hearing officer's finding that he committed prohibited acts *.306,

conduct which disrupts or interferes, and *.708, refusal to submit to a search , in

violation of N.J.A.C. 10A:4-4.1(a).1 We vacate the finding of guilt with regard

to these infractions and remand the matter for further proceedings.

      On May 7, 2019, the Special Investigation Division (SID) informed

Sergeant Chris Manion that appellant might possess contraband, so Reed was

targeted for a strip search that day. Officers approached Reed as he was on his

way to attend religious services, and pulled him aside for the search. According

to the incident report, Reed did not comply with officers' verbal commands to

keep his hands on his head and refrain from turning around to face the officers.

Officer Jonathan Mohammed reported that while Reed was stripping, the inmate

quickly turned towards him and lunged at him with his hands raised, posi ng "an

immediate threat." Officers Juan Castillo and Kyle Whitaker provided similar

accounts of the incident.    Officer Castillo reported that Reed "was warned

multiple times to not turn around during said search. The inmate was taken to


1
  Appellant also was charged with *.803/*.002, attempting to commit/assaulting
another person, but was found not guilty of same, so this charge is not discussed
in this opinion.
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the ground after turning aggressively towards custody staff." Likewise, Officer

Whitaker wrote in his report that Reed "was given multiple orders to keep his

hands on his head and to stop turning around to face the officers.         After

numerous chances of the inmate turning around, I assisted on taking the inmate

to the ground."

      During the incident, Sergeant Manion radioed "Code 33," which notified

custody staff to leave their posts and assist other officers to prevent injury or

death to the inmate or officer. Reed was restrained and escorted for a medical

examination. Subsequently, he was placed in a "dry cell," which is designed to

monitor inmates and prevent them from disposing of contraband.

      Reed was notified of the disciplinary charges against him.        Notably,

according to the DOC,

            [b]ecause Reed was in a dry cell on contraband watch,
            the Sergeant was unable to leave a copy of the charges
            on Reed's person . . . . However, the Sergeant read the
            charges to Reed and physically showed Reed the
            charges. Reed acknowledged that he understood the
            charges and the Sergeant posted a copy [on] Reed's cell
            door.
                        ....

            Thus, Reed received notice of the charges and had a
            copy of the charges in his possession, even if not
            physically in his hands.



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      Reed contends that prison cell walls are "solid," and the prison cell door

is "solid steel, with a 6" wide window," which cannot be blocked. Thus, "[e]ven

if the charge documents were on the outside of the door," he could not see or

read them.

      Reed's disciplinary hearing was conducted on May 9, 2019.           At the

hearing, Reed had the assistance of counsel substitute and entered a "no plea" to

the charges. He declined the opportunity to confront or cross-examine adverse

witnesses or to call witnesses. In his inmate statement, he asserted he was

"totally compliant" during the search, kept his "hands on [his] head [and] only

turned [his] head to speak with [Sergeant Manion]." Counsel substitute relied

on this statement and requested leniency.

      The hearing officer found Reed guilty of both charges and sanctioned him

to 120 days of administrative segregation and 120 days' loss of commutation

time. Reed pursued an administrative appeal and again argued he was innocent

of the charges. The DOC upheld the hearing officer's findings.

      On appeal, Reed contends his due process rights were violated, the finding

of guilt was not supported by sufficient credible evidence because a video taken

by an officer contradicts the hearing officer's findings, the language of

prohibited act *.306 is vague, and prison officials did not comply "with the due


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                                       4
process mandated by this prohibited act." Further, he argues "[t]he appeal

should be granted in the interests of justice."

      Our review of a final agency decision is limited. Figueroa v. N.J. Dep't

of Corr., 

414 N.J. Super. 186

, 190 (App. Div. 2010). Reversal is appropriate

only when the agency's decision is arbitrary, capricious, or unreasonable, or

unsupported by substantial credible evidence in the record as a whole. Henry v.

Rahway State Prison, 

81 N.J. 571

, 579-80 (1980); see also In re Taylor, 

158 N.J. 644

, 657 (1999) (holding that a court must uphold an agency's findings, even if

it would have reached a different result, so long as sufficient credible evidence

in the record supports the agency's conclusions).

      "[A]lthough the determination of an administrative agency is entitled to

deference, our appellate obligation requires more than a perfunctory review."

Figueroa, 414 N.J. Super. at 191

(quoting Blackwell v. Dep't of Corr., 348 N.J.

Super. 117, 123 (App. Div. 2002)). We engage in a "careful and principled

consideration of the agency record and findings" relating to inmate disciplinary

adjudications. Williams v. Dep't of Corr., 

330 N.J. Super. 197

, 204 (App. Div.

2000) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer

Affairs of Dep't of Law & Pub. Safety, 

64 N.J. 85

, 93 (1973)).




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                                         5
      In the penal setting, due process "rights may be diminished by the needs

and exigencies of the institutional environment," but they may not be

extinguished because "[t]here is no iron curtain drawn between the Constitution

and the prisons of this country." Wolff v. McDonnell, 

418 U.S. 539

, 555-56

(1974).   As our Supreme Court acknowledged long ago, in a disciplinary

proceeding, an inmate is not accorded the full panoply of rights afforded a

defendant in a criminal prosecution. Avant v. Clifford, 

67 N.J. 496

, 522 (1975).

Nonetheless, an inmate is entitled to "adequate and specific notice of the

violation charged," and "[a]fter providing the inmate with the written charge,

the [assigned] investigator must also read it to the inmate and obtain his

statement concerning the incident."

Id. at 528

(emphasis supplied). The Court

subsequently held:

            At a minimum, the United States Constitution requires
            that an inmate facing disciplinary charges receive: (1)
            a written notice of the alleged violation; (2) a written
            statement of the evidence relied on and the reasons for
            the disciplinary action taken; (3) a right to call
            witnesses and a right to present documentary evidence,
            when doing so would not be unduly hazardous to
            institutional safety or correctional goals; and (4) a right
            to assistance from a counsel substitute where the inmate
            is illiterate or the issues too complex for the inmate to
            marshal an adequate defense.

            [McDonald v. Pinchak, 

139 N.J. 188

, 194-95 (1995)
            (citing 

Wolff, 418 U.S. at 563-70

) (emphasis added).]

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                                        6
      Also, the New Jersey Administrative Code confirms that when a violation

of a prohibited act has occurred, a DOC staff member or "the staff of a contracted

vendor who witnessed it or . . . has probable cause to believe that a prohibited

act has occurred shall prepare [a] . . . [d]isciplinary [r]eport." N.J.A.C. 10A:4-

9.1(a). Further,

            [t]he disciplinary report shall be served upon the inmate
            within [forty-eight] hours after the violation unless
            there are exceptional circumstances. The report shall be
            delivered by the reporting staff member or the
            investigating custody staff member. The report shall be
            signed by the person delivering it and the date and time
            of delivery shall be noted. The inmate shall have
            [twenty-four] hours to prepare his or her defense.

            [N.J.A.C. 10A:4-9.2 (emphasis added).]

      Moreover, the officer responsible for investigating the disciplinary

infraction "shall verify that the inmate has received the written charge. The

investigating officer shall also read the charge to the inmate . . ., take the

inmate's plea, and ask if the inmate wishes to make a statement concerning the

incident or infraction." N.J.A.C. 10A:4-9.5(e).

      Here, the DOC does not assert it fully complied with N.J.A.C. 10:4-9.5(e).

Instead, it contends that "[b]ecause Reed was in a dry cell on contraband watch,

the Sergeant was unable to leave a copy of the charges on Reed's person," so



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                                        7
instead, "the Sergeant read the charges to Reed and physically showed Reed the

charges." We are not persuaded these steps satisfied Reed's due process rights.

      While we appreciate Reed was housed in a dry cell when his charges were

read to him, N.J.A.C. 10A:4-9.2 specifies an inmate "shall be served" with the

written notice of the charges against him, absent "exceptional circumstances."

The DOC does not argue that Reed's mere presence in a dry cell constitutes

"exceptional circumstances." Also, the DOC does not cite to any authority

providing that the DOC is exempted from serving a prisoner written notice of

disciplinary charges when that prisoner is on "contraband watch" or in a dry cell.

Additionally, there is no explanation regarding why, if exceptional

circumstances did exist, the DOC could not have briefly postponed Reed's

hearing until he could be served with written notice of his charges. See N.J.A.C.

10A:4-9.8(b) (noting an "inmate shall be entitled to a hearing within seven

calendar days of the alleged violation . . . unless such hearing is prevented by

exceptional circumstances, unavoidable delays or reasonable postponements").

      It is well established that asterisk offenses "are considered the most

serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a). Written

notice of charges enables an inmate to "marshal the facts and prepare a defense"

to such serious offenses. 

Wolff, 418 U.S. at 564

. Here, we are satisfied the lack


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of service of written notice of Reed's charges prejudiced his ability to "marshal

the facts and prepare a defense." Moreover, the record is devoid of facts to

demonstrate that exceptional circumstances existed to warrant waiver of such

service. Accordingly, Reed is entitled to a new disciplinary hearing.

      Reed also argues that the language set forth in *.306 under N.J.A.C.

10A:4-4.1(a) is vague, depriving him of understanding what conduct constitutes

"conduct that disrupts" the prison facility. We disagree.

      "The institutional need to control the inmate population and maintain

order is manifest." Jenkins v. N.J. Dept. of Corr., 

412 N.J. Super. 243

, 252

(App. Div. 2010). As our Supreme Court observed, "the daily interaction

between inmates and prison officials can create a tense environment that

requires special measures to ensure safety. Swift and certain punishment is one

tool prison officials use to maintain order and discourage future misconduct by

a perpetrator." 

McDonald, 139 N.J. at 194

. In the context of prison disciplinary

proceedings, however, notice of prohibited conduct is a critical component of

due process and fundamental fairness. 

Avant, 67 N.J. at 525

. Such notice cannot

be vague and must "be sufficiently clear and precise so that people are given fair

notice and adequate warning of the law's reach."            Town Tobacconist v.

Kimmelman, 

94 N.J. 85

, 125 n.21 (1983). Because due process protects an


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                                        9
inmate's right to notice, "a statute which either forbids or requires the doing of

an act in terms so vague that [individuals] of common intelligence must

necessarily guess at its meaning and differ as to its application, violates the first

essential of due process of law." Connally v. Gen. Constr. Co., 

269 U.S. 385

,

391 (1926).

      To succeed on a facial vagueness challenge, the person challenging the

law must show it is "impermissibly vague in all its applications." State v.

Cameron, 

100 N.J. 586

, 594 (1985). However, when the law is challenged as

applied, it must be proven that the law lacks clarity in the context of the

particular case.

Ibid. Guided by these

standards, we are persuaded Reed failed

to demonstrate that *.306 is facially vague or unclear in the context of his case.

See Colten v. Kentucky, 

407 U.S. 104

, 110 (1972).

      We are mindful that a disciplinary infraction based on prohibited act

*.306, defined as "conduct which disrupts or interferes with the security or

orderly running of the correctional facility," does not expose Reed to either a

complete loss of freedom or a curtailment of his liberty beyond the schedule of

sanctions for asterisk offenses set forth in N.J.A.C. 10A:4-5.1(a).2 Accordingly,


2
  *.306 is defined as a Category B offense, which upon a finding of guilt f or
same "shall result in a sanction of no less than 91 days and no more than 180


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                                        10
the potential punishment for this infraction does not warrant a heightened degree

of scrutiny. Additionally, while the definition of *.306 somewhat broadly

encompasses a variety of prohibited acts, we are persuaded the offense, as

defined in N.J.A.C. 10A:4-4.1, does not suffer from vagueness. In short, the

DOC is not required to identify every act of prohibited conduct which could

disrupt or interfere with the security or orderly running of the correctional

facility. Moreover, the definition of *.306 is clear enough to provide inmates

with adequate notice that disruptive behavior will not be tolerated. The type of

behavior in which Reed purportedly engaged, which was detailed in multiple

officers' reports, certainly qualifies as "disruptive."   A person of common

intelligence would understand that ongoing resistance to an officer's commands

in a prison setting is disruptive and could trigger the involvement of other staff

or officers, thereby interfering with the "security or orderly running of the

correctional facility."




days of administrative segregation per incident," "unless a medical or mental
health professional determines that the inmate is not appropriate for
administrative segregation placement;" additional sanctions identified in
N.J.A.C. 10A:4-5.1 also may be imposed.


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                                       11
      We also consider defendant's contention that the DOC deprived him of

due process by failing to provide him with a copy of the video showing he was

escorted naked to his medical exam. Again, we are not persuaded.

      Reed argues that the missing video is "crucial to [our] evaluation of the facts

in this matter" and that the DOC "can hardly claim . . . he refused to submit to a strip

search if he is naked in the video [when he was] removed from the strip search to

the medical clinic." This argument is flawed. Indeed, Reed admits the "video begins

with moving [him] from where he was strip searched to the medical clinic."

Therefore, his state of undress in the video would not shed light on whether he

refused to submit to a search and ignored officer's commands before being

restrained.

      In light of our decision to remand, we need not address Reed's contention

that the hearing officer's finding of guilt is not supported by sufficient credible

evidence. To the extent we have not addressed Reed's remaining arguments, we

are satisfied they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      We vacate the final decision and remand the matter for a new hearing

consistent with this opinion. We do not retain jurisdiction.




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                                         12

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