KHILIL BRYANT v. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

NOT FOR PUBLICATION WITHOUT THE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-3337-19

KHILIL BRYANT, a/k/a

KHILL BRYANT, and

DYMILL BRYANT,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________

Submitted January 5, 2022 – Decided March 17, 2022

Before Judges Whipple and Susswein.

On appeal from the New Jersey Department of

Corrections.

Khilil Bryant, appellant pro se.

Andrew J. Bruck, Acting Attorney General, attorney for

respondent (Donna Aarons, Assistant Attorney

General, of counsel; Chanell Branch, Deputy Attorney

General, on the brief).

PER CURIAM

Petitioner Khilil Bryant appeals from a final agency decision by the

Department of Corrections (DOC) affirming his administrative conviction for

two counts of assaulting any person, N.J.A.C. 10A:4-4.1(a)(1)(ii) (*.002), and

one count of conduct that disrupts or interferes with the orderly running of a

correctional facility, N.J.A.C. 10A:4-4.1(a)(2)(xix) (*.306). Bryant argues that

the DOC's decision was arbitrary and capricious for failing to consider his

medical condition—diabetes—as it could have explained his uncharacteristic,

violent actions. After carefully reviewing the record, we remand for a new

hearing at which the hearing officer shall make specific findings as to whether

Bryant's assaultive conduct was a voluntary act considering his medical

condition at the time of the incident.

I.

We discern the following facts and procedural history from the record.

On March 4, 2020, Bryant's cellmate, Scott Audrique, notified Corrections

Officer Mears that Bryant was banging his head against the cell doors. Officer

Mears went to the cell to evaluate the situation and witnessed Bryant

demonstrating "extremely odd behavior." The record indicates that Officer

Mears had prior knowledge that Bryant is a diabetic. Upon witnessing Bryant's

behavior, Mears initiated a "Code 53"—a procedure used when a medical

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emergency arises. Sergeant Brown and multiple staff members responded to the

call.

Officer Mears witnessed Bryant run out of his cell. When Sergeant Brown

arrived at the scene, he witnessed Bryant "shouting obscenities." Brown ordered

Bryant "to get down on the ground." Bryant refused and began running towards

Officer Mears. Mears then "took [Bryant] to the ground." Bryant "became

extremely combative" and placed his arms around Mears' head "in a head lock

fashion." At this point, another officer on the scene, Officer Y. Brown, 1 initiated

a Code 33—a procedure for when there is an emergency in the prison and an

officer requires assistance.

Sergeant Brown struck Bryant twice in the shoulders with a baton. In

addition, while attempting to handcuff Bryant, two officers "delivered a burst of

[oleoresin] OC Spray to [] Bryant." The officers handcuffed Bryant and carried

him down the stairs. The record reflects that while Bryant was being carried, he

"again became combative and delivered a front kick to the stomach" of one of

the officers. That prompted officers to take Bryant "back down to the ground."

1

In the interest of clarity, the record shows that Officer Y. Brown and Sergeant

Brown are two different people.

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Once on the ground, Bryant became compliant and medical staff placed him on

a stretcher.

Bryant was charged with two counts of assaulting any person, *.002, and

one count of conduct which disrupts or interferes with the orderly running of a

correctional facility, *.306. The hearing was initially scheduled for March 6,

2020, but was postponed for medical reasons. The hearing was convened on

March 13, 2020, at which Bryant pled not guilty. A memorandum was submitted

into evidence from Jeffrey Pomerantz, DO,2 the Site Medical Director,

explaining that "it is possible for a . . . diabetic to have a sudden drop in blood

sugar despite compliance with [a] medical regimen. The patient has not evinced

noncompliance with [his] medical regimen . . . . [I]t is possible to have no

warning symptoms of [hypoglycemia] with a brittle diabetic."

The hearing officer found Bryant guilty on all charges. The hearing

officer determined that although Bryant had no prior history of institutional

violence, on this occasion, he assaulted two officers. The hearing officer

acknowledged that Bryant suffers from a medical condition—diabetes—but

determined that Bryant "must be aware of his medical condition and the

consequences" that may be associated with that condition. The hearing officer

2

"DO" refers to Doctor of Osteopathic Medicine.

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thus rejected Bryant's contention that he had no recollection of the incident

because of low blood sugar.

Bryant was sanctioned to 365 days of administrative segregation, 120

days' loss of commutation time, and 15 days' loss of recreation privileges.

Bryant administratively appealed the decision. The DOC determined that

Bryant's "behavior was disruptive in nature and will not be tolerated. The

sanction imposed was proportionate to the offense. No leniency will be afforded

to you."

This appeal followed. Bryant raises the following contentions for our

consideration:

POINT I

GUILTY FINDING ARBITRARY AND

CAPRICIOUS WHEREIN APPELLANT'S

HYPOGLYCEMIA CLAIM WAS IGNORED.

POINT II

HEARING OFFICER DECISION IN EXPLAINING

HER FINDINGS DOES NOT SUFFICE FOR THE

RECORD.

II.

We begin our analysis by acknowledging the legal principles governing

this appeal. Our Supreme Court has held that inmates are afforded due process

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rights in disciplinary proceedings. Avant v. Clifford, 67 N.J. 496, 525–33

(1975); see also McDonald v. Pinchak, 139 N.J. 188, 193–94 (1995); Jacobs v.

Stephens, 139 N.J. 212, 215 (1995). In Malacow v. N.J. Dep't of Corr., we

summarized an inmate's due process rights:

[a]n inmate facing disciplinary action must be provided

with the following limited protections: (1) written

notice of the charges, provided at least twenty-four

hours before the hearing, so the inmate can prepare a

defense; (2) an impartial tribunal, consisting of either

one [hearing officer] or a three-member adjustment

committee; (3) the assistance of a counsel substitute if

the inmate is illiterate or unable to collect or present

evidence; (4) the right to call witnesses and present

documentary evidence, provided it is not "unduly

hazardous to institutional safety or correctional goals";

(5) the right to confront and cross-examine adverse

witnesses; and (6), quoting the Standards on the Inmate

Discipline Program section 254.283, "a written

statement of the fact-findings is given to the inmate by

the [hearing officer] or by the adjustment committee

chairman as to the evidence relied upon, decision and

the reason for the disciplinary action taken unless such

disclosure would jeopardize institutional security."

[457 N.J. Super. 87, 93–94 (App. Div. 2018) (quoting

Avant, 67 N.J. at 525–33).]

As the Supreme Court noted in McDonald, the regulatory framework for

adjudicating charges "strike[s] the proper balance between the security concerns

of the prison, the need for swift and fair discipline, and the due process rights of

the inmates." 139 N.J. at 202.

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The scope of our review is narrow. As a general matter, we will disturb

an agency's adjudicatory decision only upon a finding that the decision is

"arbitrary, capricious or unreasonable," or is unsupported "by substantial

credible evidence in the record as a whole." 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)). In determining whether an agency action is arbitrary, capricious,

or unreasonable, a reviewing court must examine:

(1) whether the agency's action violates express or

implied legislative policies, that is, did the agency

follow the law; (2) whether the record contains

substantial evidence to support the findings on which

the agency based its action; and (3) whether in applying

the legislative policies to the facts, the agency clearly

erred in reaching a conclusion that could not reasonably

have been made on a showing of the relevant factors.

[In re Carter, 191 N.J. 474, 482–83 (2007) (quoting

Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Our deference to the adjudicatory decisions made by the DOC is

especially appropriate in view of that agency's important mission to safeguard

prison safety and security, which includes the protection of corrections officers.

See Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 238–39 (App. Div.

2019) (cautioning that a reviewing court should "not substitute its own judgment

for the agency's . . . ."). In Blanchard, we emphasized that "prisons are

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dangerous places, and the courts must afford appropriate deference and

flexibility to administrators trying to manage this volatile environment." Id. at

238 (quoting Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div.

1999)). We accept that DOC must use all reasonable means to sanction and

deter violence.

Furthermore, we are deferential to an agency's expertise. See Murray v.

State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001)

(quotation marks omitted) (quoting In re Vineland Chem. Co., 243 N.J. Super.

285, 307 (App. Div. 1990)) ("[W]here there is substantial evidence in the record

to support more than one regulatory conclusion, it is the agency's choice which

governs."). We add, however, that while the DOC has unquestioned expertise

in maintaining security within an institution, it does not necessarily have

comparable expertise with respect to medical issues, especially when, as in this

case, the agency does not rely upon medical evidence in the form of an expert

opinion.

As a general matter, in an appeal from a final decision in a prisoner

disciplinary matter, we consider whether there is substantial evidence in the

record to support the Department's decision that the inmate committed the

prohibited act. Blanchard, 461 N.J. Super. at 237–38 (citing Henry, 81 N.J. at

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579–80 (1980)). "Substantial evidence has been defined alternately as 'such

evidence as a reasonable mind might accept as adequate to support a conclusion,'

and 'evidence furnishing a reasonable basis for the agency's action.'" Id. at 238

(quoting Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192, (App. Div.

2010)); see also N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary

hearing shall be based upon substantial evidence that the inmate has committed

a prohibited act."). We note, however, that "our review is not 'perfunctory,' nor

is 'our function . . . merely to rubberstamp an agency's decision.'" Ibid. (quoting

Figueroa, 414 N.J. Super. at 191). Rather, "[w]e are constrained to engage in a

'careful and principled consideration of the agency record and findings.'" Ibid.

(quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).

In a criminal prosecution, the State bears the burden of proving the

defendant committed a "voluntary" act. N.J.S.A. 2C:2-1(a) provides:

A person is not guilty of an offense unless his [or her]

liability is based on conduct which includes a voluntary

act or the omission to perform an act of which he [or

she] is capable. A bodily movement that is not a

product of the effort or determination of the actor,

either conscious or habitual, is not a voluntary act

within the meaning of this section.

Proof of a voluntary act is one of the minimum conditions for imposing

criminal liability. See State v. Penna, 178 N.J. 297, 304 (2004) (citing State v.

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Sexton, 160 N.J. 93, 98 (1999); N.J.S.A. 2C:2-1, -2). The drafters of the New

Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9 (penal code),

recognized that the requirement of a voluntary act "is reflective of the fact that

the law cannot hope to deter involuntary movement." N.J.S.A. 2C:2-1(a) cmt.

1 (1971). The penal code commentators further explained that N.J.S.A. 2C:2-

1(a) "should be interpreted to exclude from the definition [of voluntary act]

reflex actions, convulsions . . . [and] states of physical activity where self-

awareness is grossly impaired or even absent, such as epileptic fugues . . . ."

N.J.S.A. 2C:2-1(a) cmt. 3 (1971).

We believe the "bedrock" requirement to prove a voluntary act, see Penna,

178 N.J. at 304, applies not only to criminal prosecutions but also to

administrative prosecutions for inmate disciplinary infractions. The regulations

governing the conduct of inmates cannot hope to deter or otherwise prevent

involuntary movements resulting from a medical crisis when, as in this case, the

inmate appears to be dutifully complying with his prescribed medical regimen.

III.

We need spend little time addressing Bryant's argument that that the DOC

failed to present substantial evidence of his assaultive conduct. See N.J.A.C.

10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing shall be based upon

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substantial evidence that the inmate has committed a prohibited act."). That

portion of Bryant's argument lacks sufficient merit to warrant extensive

discussion. R. 2:11-3(e)(1)(D). The record shows that Bryant became

"extremely combative" and placed Officer Mears in a headlock. Further, the

record shows that while Bryant was being carried down the stairs, he "again

became combative and delivered a front kick to the stomach" of an officer.

Defendant's conduct, without question, constitutes an assault and disrupted or

interfered with the security or orderly running of the correctional facility .

The critical fact-sensitive issue raised in this case, however, is not whether

Bryant physically resisted and assaulted corrections officers, but rather whether

his violent outburst was a volitional act. Bryant argues that the "[g]uilty finding

[was] arbitrary and capricious wherein appellant's hypoglycemia claim was

ignored." Although we do not agree that Bryant's hypoglycemia claim was

"ignored," we do agree that the hearing officer paid insufficient attention to

whether Bryant's uncharacteristic violent outburst was the result of an acute

hypoglycemic event. The hearing officer's decision discounted the medical

evidence, reasoning that Bryant should have been aware of his medical condition

and the consequences that may be associated with that condition.

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The hearing officer's finding that Bryant was aware of his diabetes misses

the point. We are not dealing with a situation where, for example, a person with

a potentially debilitating medical condition ignores medical advice and chooses

to operate a vehicle or heavy machinery. In that example, the individual is

disregarding the risk of a seizure or other crippling medical event. Conversely,

an inmate has no choice in deciding when to interact with corrections officers

or other inmates. A diabetic inmate may be aware of the disease and yet be

unable to prevent a hypoglycemic episode.

Nor does the record suggest that Bryant was noncompliant with his

medical regimen to address his diabetes. On the contrary, the record shows

sufficient evidence that he was complying with his prescribed medical regimen.

The record also shows evidence that a sudden drop in blood sugar,

hypoglycemia, might occur without warning. In these circumstances, we are not

convinced the hearing officer made adequate findings to discount the possibility

that defendant's aberrant behavior was the result of a medical emergency rather

than a voluntary act amenable to deterrence by the threat of discipline.

We recognize that Pomerantz's report did not expressly opine that Bryant

experienced hypoglycemia at the time of the incident, much less that a sudden

drop in blood sugar level caused Bryant's bizarre and ultimately combative

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behavior. We nonetheless conclude that Pomerantz's report raised the issue

whether Bryant's uncharacteristic behavior—which led to a code 53 medical

emergency—and the ensuing violent, profanity-laced outburst was volitional.

We note the medical evidence Bryant submitted at the hearing was not listed

under the "Summary of evidence relied on to reach [a] decision." As we have

noted, although we generally defer to the DOC in matters of prison safety and

security, see Blanchard, 461 N.J. at 238–39, DOC bears responsibility to provide

proper reasons for imposing sanctions, see Malacow, 457 N.J. Super. at 94

(noting that even if an inmate's due process rights are not violated, remand may

be warranted if the hearing officer fails to provide adequate reasons for

sanctions).

Because the hearing officer in this instance failed to provide a suitable

explanation for why the medical evidence did not support Bryant's claim, we

conclude the decision as it stands is arbitrary and capricious. We therefore

remand the matter for a new hearing at which the hearing officer shall make

findings concerning the medical evidence and whether defendant's assaultive

conduct was a voluntary act or instead a result of an acute medical condition

over which Bryant had no warning or control. If the DOC chooses to present

additional medical evidence, it shall provide adequate notice to Bryant before

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the re-hearing. We offer no opinion on whether Bryant committed a voluntary

act when he resisted and assaulted the corrections officers.

Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.

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