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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3173-04T53173-04T5
JAMES McCLARY,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent-Respondent.
Submitted September 14, 2005 - Decided
Before Judges Wefing and Fuentes.
On appeal from New Jersey Department
of Corrections.
Appellant submitted a pro se brief.
Peter C. Harvey, Attorney General,
attorney for respondent (Michael J. Haas,
Assistant Attorney General, of counsel;
Walter C. Kowalski, Deputy Attorney
General, on the brief).
PER CURIAM
James McClary is an inmate at East Jersey State Prison. He is appealing from a Final Decision of the Department of
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Corrections, which imposed disciplinary sanctions upon him for committing prohibited act .254, refusing to work, or
to accept a program or housing unit assignment. He was sanctioned with fifteen days of detention, ninety days of
administrative segregation, and the loss of sixty days of commutation time.
On February 4, 2005, McClary was advised that he was being moved to a new area within the prison. He refused to
pack his belongings, alleging that he was being ordered to move for retaliatory reasons. Based upon that refusal, he
was served with a disciplinary charge.
An investigation was conducted, and McClary provided the investigating officer, Sergeant Salort, with a written
statement in which he set forth his reasons for refusing to leave his cell. McClary refused to appear at the
disciplinary hearing although a counsel substitute did appear on his behalf. The hearing officer reviewed the various
reports, as well as the written statement McClary had provided. The hearing officer determined that McClary had
committed the act charged and imposed the sanctions noted at the outset of this opinion. Following McClary's
unsuccessful administrative appeal, he appealed to this court.
We note at the outset the limited scope of our review of such a final administrative decision, which should not be
disturbed on appeal unless it is arbitrary, capricious, or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571,
579-80 (1980). The Supreme Court recently restated the four questions a court charged with reviewing a final
administrative decision should consider:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether
the agency's action violates express or implied legislative policies; (3) whether the
record contains substantial evidence to support the findings on which the agency
based its action; and (4) 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.
[Karins v. City of Atl. City, 152 N.J. 532, 540 (1998).]
Here, the record amply supports the adjudication that McClary was guilty of the disciplinary infraction; there is no
factual dispute that McClary refused the order to change his housing assignment. Further, from our review of the
record, it is clear that McClary received all the procedural protections to which he was entitled. Avant v. Clifford, 67
N.J. 496 (1975). We are, thus, satisfied that the Final Decision of the Department of Correction should be affirmed.
In connection with his appeal, McClary filed certain motions upon which we reserved decision until disposition of
his appeal. These included a motion to proceed as an indigent, a motion for assignment of counsel, and a motion for
a referral to the District VII Ethics Committee. After reviewing the papers submitted in support of and in opposition
to the motions, we have concluded that the motion to proceed as an indigent should be granted, and the balance
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of the relief denied.
The Final Decision under review is affirmed.
(continued)
(continued)
4
A-3173-04T5
September 23, 2005
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