June 20, 2008
JAMES ELLERBE, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Administrative Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2008
Before Judges Fuentes and Chambers.
Plaintiff James Ellerbe, an inmate at East Jersey State Prison, appeals from an administrative determination that he committed the disciplinary infraction of threatening a corrections officer with bodily harm in violation of N.J.A.C. 10A:4-4.1(a) *.005. Since the language Ellerbe used was ambiguous, we do not find substantial evidence to support the charge. Accordingly, we reverse and vacate the sanction.
On July 15, 2007, Ellerbe submitted to prison officials a remedy form used for inmate grievances. On the form, Ellerbe set forth his complaint regarding Corrections Officer Hernandez as follows:
On 7.14.07, while having visit, I was sat upon by Officer Hernandez, who wrote a bogus charge, which laid me in from visits today with my mother and sisters, my son who is 22, and I haven't seen since he was 15 years old. His mother just died 13 days ago, and what was used to target me for our past confrontations, has now grown to impact and effect my fiancee and family. The harassment needs to stop. I ain't gonna ask again, just know I finished messing around with this guy. If he want[s] to hold onto a 2 year old passions, too bad! Talk to him. (emphasis added).
Based on the highlighted language in this complaint, the officer who reviewed the form charged Ellerbe with threatening another person with bodily harm or with any offense against his person or his property in violation of N.J.A.C. 10A:4-4.1(a) *.005.
At the disciplinary hearing on July 30, 2007, Ellerbe testified that "I wrote the remedy [form] to voice my concerns. It is not a threat." Based on the language Ellerbe used on the form, the hearing officer found that "The words [are] of such a nature that a reasonable person would believe/convey the words as a threat, all [of which] is relied on to determine guilt." Ellerbe was sanctioned fifteen days detention (with credit for time served), 180 days loss of commutation time, and 180 days administrative segregation. On appeal, Paul K. Lagana, associate administrator, affirmed the hearing officer's decision, writing on August 1, 2007, that "[t]he language written is not someone voicing concerns. This is a threat and [it] is reasonable to view it as a threat."
This court will not reverse a decision of an administrative agency unless the decision is "arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The hearing officer's findings in an inmate's disciplinary hearing must be based on "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a).
Here Ellerbe was charged with the prohibited act of "threatening another with bodily harm or with any offense against his or her person or his or her property." N.J.A.C. 10A:4-4.1(a) *.005. "The determination of whether a remark constitutes a threat is made on the basis of an objective analysis of whether the remark conveys a basis for fear." Jacobs v. Stephens, 139 N.J. 212, 222-24 (1995) (agreeing that N.J.A.C. 10A:4-4.1(a) *.005 was violated where the inmate made heated, abusive, and profane statements, including "I'll fuck you up," directly to the corrections officer).
Ellerbe was found guilty of this offense based upon his written complaint that "[t]he harassment needs to stop. I ain't gonna ask again, just know I finished messing around with this guy." This language does not convey a direct threat of bodily harm or other offense against a person or property. While the statement intimates that there will be consequences if the officer does not stop harassing Ellerbe, the statement does not indicate what those consequences will be. The record provides no context that establishes by substantial evidence that the statement was threatening bodily harm or other harm to a person or property, as opposed to some other consequence such as further complaints or a lawsuit. The statement was made in a written complaint form, an unlikely forum for a threat of violence. The record does not indicate that the alleged threatened officer perceived the statement as a threat in violation of this section given the context of his relationship with the inmate. Ellerbe indicates that the statement was not intended as a threat, and thus it could also be perceived as a statement demonstrating his great frustration with the situation. Accordingly, we do not find substantial evidence to support the hearing officer's decision.
We reverse and vacate the sanctions.
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