ADAM REED VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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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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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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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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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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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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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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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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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