On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Holston, Jr.
This is the appeal of Inmate Louis Marrero from the May 9, 2006 disposition of disciplinary appeal by the administrator of South Woods State Prison. The administrator upheld the May 8, 2006 decision of the hearing officer (HO), who after a disciplinary hearing found appellant guilty of a violation of prohibited act *.005, threatening another with bodily harm or with any offense against his or her person or his or her property, contrary to N.J.A.C. 10A:4-4.1. The HO imposed and the administrator upheld a sanction of fifteen days detention, 120 days loss of commutation credit and 120 days of administrative segregation.
After Marrero filed his notice of appeal with this court on May 25, 2006, we granted, on October 17, 2006, the Department of Correction's (DOC) motion for remand, in light of our holding in DeCamp v. New Jersey Department of Corrections, 386 N.J. Super. 631 (App. Div. 2006),*fn1 to allow the HO to consider Marrero's claim of self defense. At the rehearing held December 5, 2006, statements requested by Marrero from inmates Alfano, Mungro, Owens, Montanez and Sergeant Goslin were considered by the HO. The HO, based on Marrero's own statement, concluded that a "self defense argument was not supported or requested from inmate Marrero." After reviewing all the evidence presented by the reporting officers and Marrero, the HO again adjudicated Marrero guilty of the infraction and reimposed the previously imposed sanctions.
The May 4, 2006 disciplinary report of Senior Corrections Officer (SCO) Harris states, "On . . . 5/4/06 at approximately 7:40 p.m., this officer observed inmates Marrero and Montanez arguing in dayroom 1136. I went to the dayroom to remove the inmates and Inmate Marrero stated that he would have his (Muslim brothers) take care of Inmate Montanez." A May 5, 2006 investigative report by Sergeant Ballurio indicates that Marrero pleaded not guilty and claimed he had been previously threatened by Montanez. However, Ballurio concluded that "Marrero's comment witnessed by SCO Harris would warrant the charge."
At the May 8, 2006 disciplinary hearing, Marrero stated that for several weeks he had voiced complaints to prison authorities about inmates in his cell smoking and talking when he was trying to pray, which got to the point where they were threatening him. After he put in a grievance form, Montanez learned Marrero had written requests against him and "got into his face." Marrero stated that when he complained to SCO Harris,
[Harris] told him to go to the dayroom where "Montanez came in with 12 guys from Latin King and surrounded me and they tried to resolve the problems too many gang members and we left the room and he said what are you going to [do] get the Muslims and officer singled out Montanez and me . . . it seems Montanez keeps picking on Muslims they apparently picked me out to be picked on and officer picked me because of remedys written when in fact I was the one being threatened."
At the disciplinary hearing, Marrero's counsel substitute stated that Marrero went to SCO Harris three times and asked to speak to the sergeant about Montanez. Counsel substitute also argued that although Marrero denied making the statement "that statement does not rise to [the level] of [a] threat and requests leniency."
In finding Marrero guilty of the infraction, the HO considered Marrero's statement and that of his counsel substitute. However, the HO determined that SCO Harris' eyewitness report, along with Sergeant Goslin's report, supported the charge. Sergeant Goslin's report stated that Harris called Goslin via radio at 7:50 p.m. and told him Marrero and Montanez were involved in a heated dispute in the dayroom and that Harris told him that when Harris questioned the inmates, Marrero stated, "I'll get my Muslim brothers and take care of this." The HO further noted that witness statements did not support Marrero's claim of being surrounded or threatened by Montanez. Those statements were from inmates Alfano, Mangro and Owens. Alfano's statement read, "I have no knowledge of any incident or event concerning an inmate by the name of Marrero, or anything that occurred on May 4, 2006 [at the dayroom]." Mangro wrote: "Reference to an incident on May 4th 2006 at app. 7:40 p.m. didn't see or hear anything." Owens, a paralegal in the law library, reported:
On 5-4-06 at approximately 1:15 p.m. I was in the law library when the above reference I/M approached me about advice on how to resolve a problem with his cell-mate's smoking in the cell. I advised him to speak with his housing officer and then if necessary the Unit Sgt. I further advised him not to get into a confrontation with the guy's in his cell, because it would not be worth the trouble.
After adjudicating Marrero guilty of prohibited act *.005, the HO imposed the sanction of fifteen days detention, 120 days loss of commutation time, and 120 days administrative segregation. The HO's reason for the sanction was that Marrero had two previous disciplinary charges, one of which was a weapons charge. The HO stated: "Inmate capable of carrying out threat and must be deterred."
In Marrero's appeal to the prison administrator, Marrero claimed he had been the subject of prior threats by Montanez arising from Montanez and other inmates smoking in his four man cell while Marrero was praying. Marrero further wrote the administrator:
At no time did I ever say that my [M]uslim brother's would take care of the matter. It was inmate Montanez who uttered to me, "what are you going to [do,] get the [M]uslims?" This charge did not rise to the level of a threat. The hearing officer used charges from a prior bid as her reasons for not giving me any consideration. Since I have returned back, I have not received any charges (2-years). Please take into consideration my good disciplinary adjustment as well as my progress reports.
In the administrator's May 9, 2006 disposition of disciplinary appeal, the administrator upheld the decision of the HO and made the following determination: "I have reviewed your request for leniency, as well as the entire charge package. I find no misinterpretation of the facts and no compelling reason to amend the sanction. Sanction is proportionate to the offense, appeal is denied."
At the remand hearing, pursuant to DeCamp, Marrero again denied that he was guilty of the prohibited act charged. He stated that after SCO Harris told him to go to the dayroom, he told Harris that he wanted "to go get my Sahih Muslim Book." Montanez came into the dayroom along with several other inmates. At that time "Muslim Mangro" got into an argument with Montanez, which Harris observed. Marrero claims he then decided to leave the dayspace. He did not intend to "relate any fear to this individual. I just wanted him to understand the prayer [and not to smoke]." Marrero contends that Harris misunderstood what he said and what he, in fact, said was "I wanted to engage with fellow Muslims and others there and authorities about my concerns about daily worship. Officer thought I said I am going to go get the Muslims - this statement does not constitute a threat of fear."
In addressing our admonition in DeCamp that, "[w]hen an inmate raises self-defense as an issue, the [HO] must consider this defense, and make specific findings in support of his/her ultimate conclusion," 386 N.J. Super. at 631, the HO summarized Marrero's position as follows:
[T]he department wants me to plead to self defense. I am not pleading to that because I am not guilty. . . . I am 50 years old.
I am not a thug and I have an excellent record. I was there 2 years charge free and request [you] consider that as I see it there was no evidence that I made a threat against this individual and requests [you] exonerate me because [my] intent was not to harm anyone and am not capable of such a thing.
The HO relied on the following "summary evidence" in re-adjudicating Marrero guilty:
D4 Inmate's remedy form filed 4/26/06 complains about smoking in cell loud talking - no mention of any threats. D5 Note inmate submitted a citizen's complaint against Montanez July 7, 2006 - long after the alleged threat from Montanez, 5/4/06. D6 Montanez statement requested by IM he says he was arg[u]ing with Marrero because he would not give him his space in the 4 man cell then he went into the dayroom and started talking to his Muslim brothers about jumping him. In the dayroom in front of him he told his Muslim brothers that he is tired of Montanez and he does not want him in the room anymore and that he wanted them to help him jump him. D7 Sgt. (Housing Sgt.) report at no time did inmate Montanez or Marrero approach him concerning threats or problems with [each] other prior to the incident on 5/4/06. D8 Inmate remedy form of 4/11/06 also complains of smoking - no mention of threats or harassment from Montanez. Inmate's claims of being threatened are not supported. Inmate was witnessed threatening another inmate. Substantial evidence to support charge - Self defense not supported or requested from inmate.
In reimposing the sanctions previously imposed the HO stated as her reasons: "Threats must be deterred. Inmate capable of carrying out threat. Note prior 306, 267, 202 weapon ...