THAO KIM 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NOT FOR PUBLICATION WITHOUT THE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-2187-19
THAO KIM,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted July 6, 2021 – Decided August 19, 2021
Before Judges Messano and Smith.
On appeal from the New Jersey Department of
Corrections.
Thao Kim, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Daniel S. Shehata, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Thao Kim, an inmate, appeals the January 27, 2020 final
decision of the New Jersey Department of Corrections (DOC) finding Kim
committed various disciplinary infractions and imposing corresponding
sanctions. We reverse and remand for the reasons set forth below.
I.
We glean the facts and procedural history from the limited record. On
December 17, 2019, at 6:55 p.m., a staff member, Alpha Jabateh, observed Kim
exiting a bathroom at a DOC residential facility. Jabateh reported that Kim's
eyes were glassy and bloodshot, and his speech was slurred. Kim also had
tobacco ashes on his hood. Kim was taken to the program manager's office and
searched using a metal detector. He was found to be in possession of a black
lighter. Later that evening Kim was strip searched prior to being transported to
a detention facility. Contraband, in the form of a small resealable plastic bag
containing a green leafy substance, was discovered in Kim's underwear. On
December 18, a DOC investigator conducted a field test and concluded the leafy
green substance was not marijuana. 1
1
Officer Rodriquez, who prepared the field test report and concluded that the
green leafy substance was not marijuana, indicated in his report that the
substance would be sent out to the New Jersey State Police Lab (NJSP) for
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On December 19, at 8:00 a.m., the DOC served Kim with disciplinary
charges alleging three infractions: possession or introduction of drugs,
intoxicants or related paraphernalia not proscribed by medical staff, *.203; being
intoxicated while assigned to a residential community program, .552A; and
possession of tobacco products or matches not permitted, .554.
The record further shows that the DOC hearing officer recorded guilty
findings on charge .554 at 10:05 a.m. and charge *.203 at 10:17 a.m. and then
imposed sanctions. The hearing officer found Kim not guilty of charge .552,
being intoxicated while in a residential program. The record reveals no evidence
of Kim's presence or waiver of his presence at the disciplinary hearing.
Later on December 19, at 4:15 p.m., the DOC issued a final decision on
Kim's administrative appeal upholding the hearing officer's findings. Kim
appeals, arguing that the DOC's decision was arbitrary, capricious, or
unreasonable and unsupported by substantial credible evidence in the record.
II.
Our role in reviewing the decision of an administrative agency is limited.
In re Taylor, 158 N.J. 644, 656 (1999); Figueroa v. N.J. Dep't of Corr., 414 N.J.
further testing. The record does not contain the outcome of such an NJSP test,
or if it took place.
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Super. 186, 190 (App. Div. 2010). We will not upset the determination of an
administrative agency absent a showing that it was arbitrary, capricious, or
unreasonable; that it lacked fair support in the evidence; or that it violated
legislative policies. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)
(citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)).
We have also noted that the Legislature has provided the DOC with broad
discretion in all matters regarding the administration of a prison facility,
including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324
N.J. Super. 576, 583 (App. Div. 1999). Therefore, we may not vacate an
agency's determination because of doubts as to its wisdom or because the record
may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J.
Super. 484, 489-90 (App. Div. 1985).
However, "although 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 are not "relegated to a mere
rubber-stamp of agency action," but rather we must "engage in 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) (citations omitted).
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A prison disciplinary proceeding "is not part of a criminal prosecution and
thus the full panoply of rights due a defendant in such a proceeding does not
apply." Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v.
Brewer, 408 U.S. 471, 480 (1972)). In Avant, our Supreme Court prescribed
limited due process protections due prisoners prior to their subjection to
discipline. Id. at 519 n.21. These protections include written notice of the
charges and timely adjudication; a hearing before an impartial tribunal;
representation, if requested, by counsel-substitute; a limited ability to call
witnesses and confront adverse witnesses; and a limited ability to present
documentary evidence. Id. at 525-30.
The discipline of prisoners for violations of rules and regulations rests
solely within the discretion of the DOC. See, e.g., N.J.S.A. 30:1B-6, -10. The
due process safeguards established by the DOC for the administration and
implementation of inmate discipline are set forth in N.J.A.C. 10A:4-1.1 to -12.3.
The report containing allegations of offenses against an inmate "shall be
served upon the inmate within 48 hours after the violation . . . ." The DOC must
ensure an investigating or reporting staff member delivers the report to the
inmate, and that the date and time of delivery is recorded. The inmate "shall
have" 24 hours to prepare a defense. N.J.A.C. 10A:4-9.2.
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Inmates are permitted to be present throughout their disciplinary hearing
with limited exceptions for deliberation or facility security. The reasons for an
inmate's absence have to be "well documented." N.J.A.C. 10A:4-9.10. If the
inmate refuses to attend their own disciplinary hearing, the DOC must counsel
them on the potential consequences of not attending and then obtain a signed
waiver acknowledging their refusal to attend. If the inmate refuses to sign, the
DOC must return the waiver to the hearing officer noting the refusal on the
document. In turn, the hearing officer must document the inmate's refusal to
appear for the record on his or her adjudication report. N.J.A.C. 10A:4-9.11.
III.
Two hours and seventeen minutes elapsed from the time the DOC served
charges on Kim until the hearing officer found him guilty in absentia of charges
*.203 and .554. The DOC issued a final decision six hours later. Kim argues
that this rush to judgment was arbitrary, capricious, and unreasonable. We
agree. Although an inmate's due process protections are limited, Avant, 67 N.J.
at 525, those limited protections are meaningful, and agencies have a duty to
respect them. Ibid.We find that the DOC's: (1) failure to provide Kim twenty-four hours to
prepare his defense; (2) election to proceed without being able to show Kim
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waived his presence; and (3) near simultaneous issuance of both the initial and
final decision collectively represent arbitrary and capricious conduct by the
agency. The DOC's actions in pushing Kim's discipline through while
disregarding its own regulations were unreasonable and violative of the limited
due process rights Kim is entitled to under Avant. Like any state agency, the
DOC must "turn square corners" and "comport itself with compunction and
integrity." See F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418,
426 (1985). On this record, we need not address Kim's argument that the DOC's
final decision lacked the support of substantial and credible evidence in the
record, as we find the hearing should not have gone forward.
We reverse the DOC's final decision as well as vacate the guilty findings
and related sanctions against Kim. We remand this matter to the DOC for a new
hearing consistent with the principles set forth in this opinion.
Reversed and remanded. We do not retain jurisdiction.
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