PAUL KULHA VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5443-18T2
PAUL KULHA, a/k/a
PAUL KUHLA,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted November 18, 2020 – Decided December 9, 2020
Before Judges Alvarez and Geiger.
On appeal from the New Jersey Department of
Corrections.
James S. Friedman, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Travis M. Anderson, Deputy
Attorney General, on the brief).
PER CURIAM
Paul Kulha, an inmate at South Woods State Prison, appeals from the final
administrative decision of the Department of Corrections (DOC) that upheld a
hearing officer's decision finding him guilty of a prohibited act and imposing
disciplinary sanctions. We affirm.
On June 17, 2019, Corrections Officer Thomas Cannon conducted a
routine bed area search of Kulha's prison cell and found three razors in Kulha's
footlocker. Closer inspection revealed that the razors were altered; two had
removed guards and exposed blades and the third had a half-inch of its blade
exposed. Cannon noted that altered razors with exposed blades are commonly
used as weapons in prisons and confiscated them. Kulha was charged with
prohibited act *.202,1 "possession or introduction of a weapon, such as, but not
limited to, a sharpened instrument, knife, or unauthorized tool," in violation of
N.J.A.C. 10A:4-4.1(a)(1).
On June 18, 2019, a Corrections Sergeant served the disciplinary charge
on Kulha, investigated the charge, found it had merit, and referred the matter to
a hearing officer for further action. The disciplinary hearing commenced on
June 19, 2019. Kulha was represented by a counsel-substitute during the
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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hearing. Kulha did not enter a plea to the charge. He was offered and declined
the opportunity to call witnesses and the opportunity to confront and cross-
examine adverse witnesses.
Cannon's reports stated that the three razors with altered blades were
found in Kulha's footlocker. Two of the razors had missing guards and the third
had a broken handle and a half-inch of blade exposed. Photographs were
presented that depicted the alterations to the razors.
Kulha argued that the razors were used for grooming purposes. His
counsel-substitute asked for leniency. After hearing the testimony and
reviewing the evidence, the hearing officer found Kulha guilty of the charge and
imposed the following sanctions: 181 days in administrative segregation; the
loss of 160 days of commutation time; and the loss of fifteen days of recreational
privileges. The sanctions fell within the range permitted under N.J.A.C. 10A:4-
5.1(e).
Kulha filed an administrative appeal. On June 20, 2019, Assistant
Superintendent Heather Griffin upheld the guilty finding and sanctions imposed
by the hearing officer. This appeal followed.
Kulha argues that the decision of prison administration must be reversed
because the hearing officer's findings and conclusions were not based on
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substantial evidence in the record. He further contends that his due process
rights were violated during the hearing by the hearing officer considering
photographs of the razors rather than physically examining the razors.
We preface our analysis by recognizing our review of the DOC's decision
is limited. 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.'" Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231,
237-38 (App. Div. 2019) (quoting Henry v. Rahway State Prison, 81 N.J. 571,
579-80 (1980)); see also In re Taylor, 158 N.J. 644, 657 (1999) (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 exists to support the agency's
conclusions). However, "although the determination of an administrative
agency is entitled to deference, our appellate obligation requires more than a
perfunctory review." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191
(App. Div. 2010) (quoting Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123
(App. Div. 2002)).
We also must consider whether, in making its decision, the DOC followed
the regulations governing prisoner disciplinary matters, which were adopted to
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afford prisoners the right to due process. See Jacobs v. Stephens, 139 N.J. 212,
220-22 (1995); McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995).
"A finding of guilt at a disciplinary hearing shall be based upon substantial
evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-
9.15(a). "Substantial evidence" is "such evidence as a reasonable mind might
accept as adequate to support a conclusion." Figueroa, 414 N.J. Super. at 192(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). In other
words, it is "evidence furnishing a reasonable basis for the agency's action."
Ibid. (quoting McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562
(2002)). "Where there is substantial evidence in the record to support more than
one regulatory conclusion, 'it is the agency's choice which governs.'" In re
Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div. 1990) (quoting De
Vitis v. N.J. Racing Comm'n., 202 N.J. Super. 484, 491 (App. Div. 1985)).
Kulha contends his right to due process was violated because the hearing
officer considered photographs of the altered razors rather than the actual razors.
He asserts that the photographs show that two of the razors "resemble standard
disposable razors that can be purchased in any drug store. Each appears to have
a plastic head which would typically contain a blade, as well as a handle that is
presumably made of plastic." He further contends that the photograph of the
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third razor "does not bear any resemblance to the disposable razors, and is
completely unidentifiable from the photograph." We are unpersuaded.
An incarcerated inmate is not entitled to "the full panoply of rights" in a
disciplinary proceeding that are afforded to defendants in a criminal prosecution.
Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408
U.S. 471, 480 (1972)). An inmate is entitled to the following: written notice of
the charges at least twenty-four hours prior to the hearing; an impartial tribunal;
a limited right to call witnesses and present documentary evidence; a limited
right to confront and cross-examine adverse witnesses; a right to a written
statement of the evidence relied upon and the reasons for the sanctions imposed;
and, where the charges are complex, the inmate is permitted the assistance of a
counsel substitute. Id. at 525-33. It is undisputed Kulha was afforded these
procedural safeguards.
Contrary to Kulha's assertions, the photographs clearly depict the
alterations to the three razors, including the removal of the blade guards. One
of the photographs shows that the blade is exposed by almost three-eighths of
an inch, which is far more than on an unaltered disposable razor. The
photographs supported the hearing officer's finding that the altered razors "could
be used to harm anyone."
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Contrary to Kulha's argument, Avant does not require that physical
evidence be considered at the hearing. 67 N.J. at 529. Moreover, as explained
by the DOC, "because the confiscated razors are considered weapons,"
producing them at the hearing "would raise security concerns." See McDonald,
139 N.J. at 196 (recognizing the hearing officer's discretion to limit presentation
of evidence that would "be unduly hazardous to correctional facility safety ").
Accordingly, Kulha's was afforded adequate due process.
Kulha does not dispute that the razors were found in his footlocker. He
admits that he purchased the razors. The hearing officer noted that Cannon
reported Kulha was in possession of a weapon and Kulha stated that he used the
razors for his hair.
Kulha contends that he purchased the razors legally at the prison's
commissary and thereby possessed them consistent with institutional rules. We
disagree. The fact that the razors were purchased at the commissary is not
controlling. In their original, unaltered state, the razors were legally possessed.
Altering the razors by removing their plastic guards, however, exposed the
blades, weaponizing the razors. As altered, the razors were properly considered
weapons in the form of sharpened instruments. Accordingly, possessing them
was a prohibited act.
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Because the charge against Kulha was supported by substantial, credible
evidence, the determination that he committed prohibited act *.202 was not
arbitrary, capricious, or unreasonable.
To the extent we have not specifically addressed any of Kulha's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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