GUILIO MESADIEU VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

G
                                NOT FOR PUBLICATION WITHOUT THE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-2547-19

GUILIO MESADIEU,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted March 9, 2021 – Decided May 19, 2021

                   Before Judges Fisher, Moynihan, and Gummer.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Guilio Mesadieu, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Chanell Branch, Deputy Attorney
                   General, on the brief).

PER CURIAM
      While incarcerated, Guilio Mesadieu was accused of returning a damaged

floppy disk to the law library and was charged initially with committing

prohibited act *.009. He appeals a final decision of the New Jersey Department

of Corrections (NJDOC), finding he committed prohibited act .152. Because

the record lacks clarity regarding the change in charge, the disciplinary hearing

officer's decision, and the administrative appeal of the decision, we reverse and

remand for a new disciplinary hearing.

      On November 19, 2019, Mesadieu requested and received from law

library staff a floppy disk assigned to him. According to instructional technician

Dwayne Parker, the disk was "fully operational and intact" when it was provided

to Mesadieu.    When Mesadieu returned the disk, Parker noticed the metal

protective covering on the disk was missing, reported it to Sargent Fronczek,

who was an officer in Mesadieu's unit, and submitted a disciplinary report,

indicating the "infraction" took place at 1:15 p.m. Mesadieu told Fronczek he

had returned the disk with the metal covering intact. Mesadieu, his cell, and the

library were searched, and the covering was not found.




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      The disciplinary report was provided to Mesadieu on November 20, 2019,

at 7:10 a.m. Mesadieu was charged with prohibited act *.0091 in violation of

N.J.A.C. 10A:4-4.1(a)(1)(v), which involves:

            misuse, possession, distribution, sale, or intent to
            distribute or sell, an electronic communication device,
            equipment, or peripheral that is capable of transmitting,
            receiving, or storing data and/or electronically
            transmitting a message, image, or data that is not
            authorized for use or retention . . . .

Pursuant to N.J.A.C. 10A:4-9.2, Mesadieu was entitled to twenty-four hours to

prepare his defense. Because he was charged with an asterisk offense, Mesadieu

had the right to request representation by a counsel substitute pursuant to

N.J.A.C. 10A:4-9.12. According to section eleven of the "Adjudication of

Disciplinary Charge" form (ADC form), Mesadieu requested and was given the

assistance of a counsel substitute and pleaded not guilty.

      A hearing was conducted during the morning of November 21, 2019.

NJDOC submitted Parker's disciplinary report, Fronczek's preliminary incident

report, and photographs of the disk. Mesadieu requested written statements

from inmates Raymond Skelton, who said "[i]nmate upon receiving his disks

from paralegal all [three] disks were intact upon his returning the disks the metal


1
  Prohibited acts preceded by an asterisk "are considered the most serious and
result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).
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                                        3
piece was missing"; Matthew Heyman, who stated Mesadieu had returned the

disk without the metal covering; and Dalal, whose statement is illegible due to

the quality of the copy contained in the NJDOC's appellate appendix.

      Mesadieu submitted a written statement, asserting he had complained to

Parker multiple times about Skelton being "belligerent by using foul language

in response to [his] requests." When Parker "refused" to resolve those issues,

Mesadieu submitted a complaint about Parker, and Parker cut his law library

time in half. Mesadieu described an incident in which he noticed the metal cover

on a disk Skelton had provided to him was bent out of shape. According to

Mesadieu, Parker told Skelton to give Mesadieu a new disk; experiencing

difficulty transferring files from the old disk to the new disk, Skelton removed

the metal cover on the old disk. After the file transfer was completed, Mesadieu

returned the old disk and its metal cover to Skelton. Mesadieu stated when he

asked for his assigned disk on November 19, he was given three disks, including

the old, damaged disk, and "returned all disk [sic] in the same condition they

were given to" him.

      Mesadieu asked to confront Parker. In response to Mesadieu's written

questions submitted pursuant to N.J.A.C. 10A:4-9.14(c), Parker stated only one




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                                       4
disk had been assigned to Mesadieu and a prior damaged disk had been

discarded.2 He denied the damaged disk had been returned to Mesadieu.

      In section three of the ADC form, prohibited act number "009" is crossed

out and "152" is written above it; the description "possession of electronic

communication" is crossed out and "destroying state property" is written above

it. Prohibited act .152 involves "destroying, altering, or damaging government

property." N.J.A.C. 10A:4-4.1(a)(4)(i). Under certain circumstances a hearing

officer has the authority to change a charge.

            Whenever it becomes apparent at a disciplinary hearing
            that an incorrect prohibited act is cited in the
            disciplinary report but that the inmate may have
            committed another prohibited act, the Adjustment
            Committee or Disciplinary Hearing Officer shall
            modify the charge. The inmate shall be given the
            option of a 24-hour postponement to prepare his or her
            defense against the new charge or have the new charge
            adjudicated at that time.

            [N.J.A.C. 10A:4-9.16(a).]

      Section eight of the ADC form states "[i]f inmate waives [twenty-four]

hours notice, obtain inmate's signature" but does not specify whether the

"[twenty-four] hours notice" references the initial twenty-four-hour notice



2
  In his statement, Skelton confirmed Mesadieu's statement that he was given
three disks and contradicted Parker's statement that he was given only one disk .
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                                        5
period provided pursuant to N.J.A.C. 10A:4-9.2 or the twenty-four-hour notice

period provided for a change in charge pursuant to N.J.A.C. 10A:4-9.16(a). A

signature appears next to the waiver statement in section eight. NJDOC asserts

Mesadieu's counsel substitute signed the form, waiving the twenty-four-hour

notice period for a change in charge on Mesadieu's behalf and signed the form

in section sixteen, confirming the information in the report "accurately reflects

what took place at the inmate disciplinary hearing." In section sixteen the space

for the "[p]rinted name of inmate or counsel substitute" is blank.

      According to information in section seventeen of the ADC form, the

hearing officer found Mesadieu guilty of the .152 charge. In section eighteen of

the ADC form, the hearing officer is required to set forth a "[s]ummary of

evidence relied on to reach decision." Unfortunately, much of the information

provided by the hearing officer in this section is indecipherable due to the poor

copying quality and difficult-to-read handwriting. The hearing officer appears

to reference a "modified charge" and seems to indicate Parker's report about a

floppy disk, the photographs, and the other inmates' statements "support

charge." She seems to reference Mesadieu's questions to Parker but we cannot

discern what she says about them. We can make out the phrase "are responsible

for property" but not the words that precede or follow that phrase. The hearing


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                                        6
officer did not make any legible credibility determinations. The hearing officer

sanctioned Mesadieu to thirty days of administrative segregation and ten days

of loss of recreational privileges.

        Mesadieu administratively appealed the decision, referencing only the

*.009 charge and arguing "[t]he allegations were unable to be corroborated with

any evidence" because "[n]o witness was able to substantiate that . . . Mesadieu

committed the damage or had knowledge of the allegations." In his appellate

appendix, Mesadieu included identical copies of a document entitled

"Disposition of Disciplinary Appeal" (disposition form). That document shows

within hours of receiving the appeal on November 22, the assistant

superintendent upheld the hearing officer's decision. Referencing only the *.009

charge, he stated the hearing officer had not misinterpreted the facts, NJDOC

was "in compliance with procedural safeguards," and the "sanction is

appropriate to the charge." The disposition form contains signature lines for the

employee who delivers the form and the inmate to whom it is delivered. Both

signature lines are blank and undated.

        In its appellate appendix, NJDOC included two versions of the disposition

form.     One NJDOC version was like the copies contained in Mesadieu's

appendix. On the other NJDOC version, the typewritten ".009" is crossed out


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                                         7
and ".152" is written in by hand. The delivery signature lines are signed, with

the employee line dated December 3, 2019. The assistant superintendent's

signature and the date and time written for his signature are the same: November

22, 2019, at 1:40 p.m. In its appellate brief, NJDOC refers to the first version

of the disposition form as the "original" and the second version as the "updated"

form, claiming it was issued, not just delivered, on December 3.

      On appeal, Mesadieu asserts the disk was damaged when it was given to

him with two other disks and claims Parker conspired with Skelton and filed the

disciplinary report in retaliation. He argues that the hearing officer: should

have dismissed the *.009 charge instead of downgrading it to a .152 charge ;

"exercised systemic racism" by downgrading the charge; and violated his due

process rights by failing to postpone the hearing pursuant to N.J.A.C. 10A:4-

9.16(a). He also contends NJDOC failed to "establish[] the requirement of

voluntary act under [N.J.S.A.] 2C:2-1" because the damaged disk was in

Skelton's possession. In response, NJDOC argues Mesadieu had the assistance

of a counsel substitute as he requested, the counsel substitute waived on his

behalf the twenty-four-hour notice period for a change in charge, and the hearing

officer's finding of guilt was supported by substantial credible evidence in the

record.


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                                       8
      Our review of an administrative agency's final decision is limited.

Commc'ns Workers of Am., AFL-CIO v. N.J. Civ. Serv. Comm'n, 

234 N.J. 483

,

515 (2018). We will not reverse an agency's decision unless "(1) it was arbitrary,

capricious, or unreasonable; (2) it violated express or implied legislative

policies; (3) it offended the State or Federal Constitution; or (4) the findings on

which it was based were not supported by substantial, credible evidence in the

record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Env't Prot.,

191 N.J. 38

, 48 (2007).

      In an appeal from a final NJDOC decision in a prisoner disciplinary

matter, we consider whether there is substantial evidence in the record to support

the decision that the inmate committed the prohibited act. Blanchard v. N.J.

Dep't of Corrs., 

461 N.J. Super. 231

, 237-38 (App. Div. 2019). An adjudication

of guilt on a disciplinary charge must be supported by "substantial evidence."

N.J.A.C. 10A:4-9.15(a).     "Substantial evidence" has been defined as "such

evidence as a reasonable mind might accept as adequate to support a

conclusion." In re Hackensack Water Co., 

41 N.J. Super. 408

, 418 (App. Div.

1956); see also Figueroa v. N.J. Dep't of Corrs., 

414 N.J. Super. 186

, 192 (App.

Div. 2010). We also must consider whether, in making its decision, NJDOC

followed the departmental regulations governing disciplinary proceedings,


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                                        9
which were adopted to afford inmates procedural due process. See McDonald

v. Pinchak, 

139 N.J. 188

, 194-95 (1995); Jacobs v. Stephens, 

139 N.J. 212

, 219-

22 (1995).

      We begin with what we hope is an obvious statement: we cannot affirm

a decision we are unable to read. The appellant and this court are entitled to a

clear, legible statement of the hearing officer's decision. Without that, we are

unable to determine with certainty the evidence on which she relied to reach her

decision and whether it constitutes "substantial evidence" as required in

N.J.A.C. 10A:4-9.15(a). Neither we nor the appellant should be forced to guess

at what her decision was or on what it was based. We cannot base our decisions

on speculation.

      The circumstances surrounding the change in charge are similarly unclear.

Pursuant to N.J.A.C. 10A:4-9.16(a), when the evidence presented did not

correlate to a violation of prohibited act *.009 but showed Mesadieu may have

committed the less serious prohibited act .152, the hearing officer had the

authority to modify the charge. She could do so only if Mesadieu was given

twenty-four hours to prepare to defend the new charge or waived his right to that

twenty-four-hour period. A counsel substitute can waive that notice period on

behalf of an inmate. It is not clear that happened here. The waiver section of


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                                      10
the ADC form is signed but we don't know by whom or which twenty-four-hour

notice period is being waived. Moreover, in the "original" disposition form

upholding the hearing officer's decision, the assistant superintendent references

only the *.009 charge, thereby indicating the charge was never changed to a .152

charge. The murkiness of the record regarding the change of charge prevents us

from concluding the charge was properly changed with the required notice to

Mesadieu.

        We cannot accept the "updated" disposition form as the actual disposition

form.     It appears after the assistant superintendent signed and issued the

disposition form, someone crossed out *.009 and wrote in .152. We don't know

who made that change or why it was made. The change was not confirmed by

any new signature of the assistant superintendent, which leads us to conclude

the assistant superintendent decided Mesadieu's appeal as if he had been found

guilty of and sanctioned for a *.009 violation. Because the ADC form states

Mesadieu was found guilty of a .152 violation, the assistant superintendent's

findings based on a *.009 violation cannot stand.

        Reversed and remanded for a new disciplinary hearing consistent with this

opinion. We do not retain jurisdiction.




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                                       11

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