VICTOR LOPEZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3969-19
VICTOR LOPEZ,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted February 17, 2022 – Decided March 2, 2022
Before Judges Alvarez and Mitterhoff.
On appeal from the New Jersey Department of
Corrections.
Victor Lopez, appellant pro se.
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Chanell Branch, Deputy Attorney
General, on the brief).
PER CURIAM
Petitioner Victor Lopez, an inmate at Bayside State Prison, appeals pro se
from the 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). The
charge stems from an incident that occurred on April 9, 2020 at Southern State
Correctional Facility when petitioner and others were housed in a "quarantine
unit" for inmates who had been in close contact with an inmate or staff me mber
who was symptomatic with COVID-19. The facts of this incident are set forth
in Disciplinary Hearing Officer DiBenedetto's report, so we do not recount them
at length. After careful review of the record and in light of our deferential
standard of review, we affirm.
We observe that the primary evidence supporting the charge against Lopez
in particular is the fact that he placed a phone call that lasted approximately ten
minutes at 10:15 p.m. after institutional "lock-up" had been called. On April 11,
2020, a Corrections Sergeant served the charge on Lopez, conducted an
investigation, and referred the charge to a hearing officer for further action. The
disciplinary hearing occurred on April 30, 2020. Lopez requested, and was
granted, the assistance of a counsel substitute and pleaded "not guilty" to the
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charge. He was also granted confrontation with Officer Russo, Officer
Valentine, and Lieutenant Ernest.
We note that 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.
After considering the hearing testimony and other evidence, Disciplinary
Hearing Officer DiBenedetto found Lopez guilty of the charge. She explained:
[a]fter reviewing the evidence, every inmate had ample
time to obey staff orders and should have followed
direction. While it is not known what each specific
inmate's role was in the disturbance, the evidence
supports that:
1. The inmate was part of a group that
received orders. (PA system announced
count up to 9:30pm) [;]
2. The orders were of such a nature that
any reasonable person would have
understood the orders, (inmates were given
several orders from officers & lieutenant to
go down [to] their wings) [;]
3. The orders were loud enough that the
entire group could have heard the orders [;]
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4. The inmate had ample time to comply
with the order [;]
5. No inmate, after receiving warnings,
complied with staff orders, (video shows
[that] inmates did not disperse) [;]
6. This inmate was part of the group as
evidenced by the escort reports. (A5-33
reports.) [.]
The above findings support that the inmate encouraged
inmates to riot.
....
Just because the inmate 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. Staff reports they cannot identify any
inmates not involved in the incident. No requirements
to be "main individual" to be considered guilty. Any
behavior that is not compliant with staff orders can be
viewed as encouraging and inciting non[-]compliant
behaviors.
Lopez received 210 days' administrative segregation, ninety days' loss of
commutation time, and ten days' loss of recreation privileges. In imposing these
sanctions, the hearing officer found:
In prison culture, said behaviors must be taken
extremely seriously and cannot be tolerated. Inmate[']s
behaviors could have led to violence and injuries for
staff and inmates. Orders are mandatory and must be
followed immediately. Inmate[']s actions caused SOG,
central transportation, [and] the K9 units' unit to be
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dispatched and mass overtime as the entire second shift
was mandatory due to this incident. Said behaviors
cannot be tolerated and any future behavior of this type
must be deterred for safety and security purposes.
Prison[]s function on order. No mental health
evaluation noted. Inmate[']s charge history noted.
Leniency provided; max sanction not given for
[C]ategory A charge.
Lopez appealed the hearing officer's decision, relying on a written
statement submitted by his counsel substitute. On May 6, 2020, DOC upheld
the guilty finding and the sanctions imposed.
Petitioner presents the following arguments for our consideration:
POINT I
THE DISCIPLINARY HEARING OFFICER'S
FINDING OF GUILT ON THE CHARGE OF RIOT
WAS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE AND THEREFORE IT MUST BE
REVERSED.
POINT II
THE DENIAL OF DEFENDANT'S RIGHT TO
RECEIVE A POLYGRAPH IN ACCORDANCE
WITH N.J.A.C. 10A:3-7 WAS ARBITRARY AS
WELL AS PRECONCEPTION DECIDED BY
ADMINISTRATOR.
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
unless it is arbitrary, capricious[,] or unreasonable or not supported by
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substantial credible evidence in the record." Jenkins v. N.J. Dep't of Corr., 412
N.J. Super. 243, 259 (App. Div. 2010).
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)).
"We are constrained to engage in a 'careful and principled consideration
of the agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super.
197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64
N.J. 85, 93 (1973)). A hearing officer's findings must be "sufficiently specific
under the 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 order." Lister v. J.B.
Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989) (quoting In N.J. Bell Tel.
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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. . . . 1
1
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,
[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
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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 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)).
In light of these principles, we reject Lopez's argument that there was an
insufficient factual basis to support the hearing officer's finding of guilt as the
record undercuts this argument. Although the inmates wore masks, the video
evidence and reporting officers' statements exposed the inmates' non -
compliance with the dispersal order. The hearing officer found the inmate
statements not credible because the inmate-witnesses had the opportunity to
collaborate on their stories while quarantined together after the incident. There
was sufficient credible evidence in the record from which to find that Lopez
defied repeated orders and refused to disperse and return to his bunk to be
counted. That conduct interfered with the facility's attempt "to manage th[e
unit's] volatile environment." Russo, 324 N.J. Super. at 584.
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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We also reject Lopez's argument that he was improperly denied the
opportunity to take a polygraph examination. We have long recognized an
inmate does not have the right to a polygraph test to contest a disciplinary
charge. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997).
"An inmate's request for a polygraph examination shall not be sufficient cause
for granting the request." N.J.A.C. 10A:3-7.1(c). Indeed, N.J.A.C. 10A:3-
7.1(c) "is designed to prevent the routine administration of polygraphs , and a
polygraph is clearly not required on every occasion that an inmate denies a
disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18,
23-24 (App. Div. 2005). "[A] prison administrator's determination not to give a
prisoner a polygraph examination is discretionary and may be reversed only
when that determination is 'arbitrary, capricious or unreasonable.'" Id. at 24.
"[A]n inmate's right to a polygraph is conditional and the request should be
granted when there is a serious question of credibility, and the denial of the
examination would compromise the fundamental fairness of the disciplinary
process." Id. at 20.
In the present matter, the administrator determined all issues raised by
Lopez could be decided by the hearing officer. The administrator concluded,
based on her evaluation of Lopez's request, charge package, and evidence, that
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a polygraph was unnecessary. We are satisfied that the administrator's
determination was not arbitrary, capricious, or unreasonable. Id. at 24.
Affirmed.
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