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Mark Morro v. New Jersey Department of Corrections

June 27, 2012


On appeal from the New Jersey Department of Corrections.

Per curiam.


Submitted: June 19, 2012

Before Judges Axelrad and Parrillo.

Mark Morro, an inmate at East Jersey State Prison, appeals from an April 13, 2011 final decision of the Department of Corrections (DOC) finding him guilty of committing prohibited act *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool," N.J.A.C. 10A:4-4.1(a), and imposing sanctions. On appeal, Morro challenges the determination as not supported by substantial credible evidence in the record. Based on our review of the record in light of the applicable legal standards, we agree and reverse.

The facts adduced before the hearing officer revealed that on April 5, 2011, during a search of Morro's cell, Trainee Daniel Gould found a clear pen with needle point, tattoo needle, components of a tattoo machine, five bottles of ink, and a modified power pack stored in a shoe box located on a shelf. The items were seized and Morro was charged with the disciplinary infraction. Morro admitted that most of the items belonged to him. During the hearing, Morro commented that he "fix[ed] things on the unit" and his counsel substitute noted that Morro was "on the hobby list." The hearing officer noted that Morro "should not be fixing things for other inmates on the unit" and found the confiscated items "included wire, an altered plug & altered additional items [which] could cause damage to the inmate & others." The hearing officer found Morro guilty of the asterisk charge and imposed sanctions.

Morro's administrative appeal was upheld by the assistant superintendent of the facility. This appeal followed. We denied the DOC's motion for a remand to permit the agency to elaborate and clarify its decision. We also denied Morro's motion for summary disposition.

In reviewing DOC decisions respecting discipline of inmates, we apply the standard of review applicable to final agency decisions in general. As a result, our review is limited to a determination of "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole.'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citation omitted). "[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citation omitted). The burden of demonstrating that the action of the agency was arbitrary, capricious or unreasonable rests upon the individual who is challenging that action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

The Legislature has provided prison authorities with broad discretion in all matters regarding the administration of the facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999). However, "although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." 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 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) (internal quotation marks and citations omitted).

DOC's regulations require any "finding of guilt at a disciplinary hearing [ ] be based upon substantial evidence that the inmate has committed a prohibited act." 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) (internal quotation marks and citations omitted).

Applying these standards, we conclude there is not substantial credible evidence to support the agency's finding of Morro's guilt of this disciplinary infraction. Morro is not charged with fixing items for other inmates; he is charged with the serious disciplinary infraction of possession of a weapon, i.e., a sharpened instrument, knife, or unauthorized tool. Morro provided evidence that the items were sold in the prison commissary or otherwise approved for retention by inmates. The list and photograph of the confiscated items do not reflect any alterations and the hearing officer failed to explain how any of the items were altered. Moreover, the Inmate Receipt, Contraband Seizure reflects the items were confiscated because they "[m]ay be harmful and/or pose[] a threat to the security or orderly operation of the correctional facility" not that they were "[a]ltered from original form." That is not to say these types of items could never be considered weapons, but this record does not support the agency's determination of guilt on the *.202 charge.


20120627 ...

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