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Ishod v. Dep't of Corrections

May 17, 2010

ISAIAH ISHOD*FN1, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the Department of Corrections.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 8, 2009

Before Judges R. B. Coleman and Graves.

Isaiah Ishod, an inmate at South Woods State Prison, appeals from a final agency decision of the New Jersey Department of Corrections (DOC) finding him guilty of prohibited act *.004, fighting, in violation of N.J.A.C. 10A:4-4.1. The fight occurred while Ishod was incarcerated at Northern State Prison in Newark. On appeal, Ishod argues that he was denied equal protection under the law because he was defending himself and not fighting. Ishod also argues that he was denied a fair and impartial hearing because he was never taken out of his cell for his hearing and because the hearing officer did not comply with promises made to induce a plea agreement. We affirm.

On February 26, 2008, Senior Corrections Officer Maurice Ware heard noise emanating from the cell that Ishod shared with inmate A. Malave. When he responded to the commotion, Officer Ware observed Ishod "beating inmate Malave #430028 [a]bout the head and face." Officer Ware ordered the two inmates to stop fighting, but they did not comply, so he issued a "code 10/33" emergency signal. The responding officers subdued the two inmates, and Ishod was escorted to the nurse on duty. Ishod and Malave were moved to separate cells. Officer Ware reported the incident, and Ishod was charged with a violation of prohibited act *.004, fighting, in violation of N.J.A.C. 10A:4-4.1.

Responding officers Morgado, Wallace, and Santiago completed incident reports describing what they saw when they arrived on the scene. Officer Morgado's report states that Ishod and Malave were "involved in a fight." Officer Wallace noted in his report that when he arrived Malave was "assaulting" Ishod. Officer Santiago's report states that he observed Malave kick and punch Ishod in the face and that "Ishod kept his hands up to his face in an attempt to protect himself." Officer Ware's initial report noted that both inmates were "beating each other about the head and face."

On February 27, 2008, Sergeant Mercado delivered a copy of a disciplinary report to Ishod containing the charge against him and conducted an investigation of the incident. Ishod made a statement claiming he was assaulted and was only blocking the punches thrown at him. Sergeant Mercado's report indicates that Ishod requested the assistance of counsel substitute and requested statements from two witnesses: an inmate named Sawab and a corrections officer named Jerry Head. Sergeant Mercado concluded that, based on the reports of the officers, the charge had merit. Accordingly, the matter was referred for a hearing before Hearing Officer James McGovern.

On February 29, 2008, Ishod appeared before Hearing Officer McGovern, but the hearing was adjourned to obtain witness statements. At the March 7, 2008 evidentiary hearing, Ishod claimed that he was assaulted by Malave and acted in self-defense by blocking punches thrown at him, but ultimately, he pled guilty to the fighting charge.

Hearing Officer McGovern imposed a disciplinary sanction of fifteen days detention, with credit for time served. On December 29, 2007, Ishod appealed the decision and sanction to the Administrator, but the Administrator upheld the hearing officer's findings and the sanction imposed.

On appeal to this court, Ishod contends:

POINT I: APPELLANT'S RIGHT TO EQUAL PROTECTION OF LAW WAS VIOLATED WHEN APPELLANT PLEAD ONLY GUILTY TO DEFENDING HIMSELF AGAINST ATTACK, AS PROTECTED BY LAW UNDER: DECAMP V. DEPT. OF CORRECTIONS, 386 N.J.S. 631, 2006 A.D. - WHICH GIVES AN INMATE A RIGHT TO PROTECT HIMSELF IN SELF DEFENSE UPON BEING ATTACKED; APPELLANT'S 7TH & 14TH AMENDMENT RIGHTS WERE VIOLATED CONTRARY TO THE UNITED STATES CONSTITUTION.

POINT II: APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS AND A FAIR AND IMPARTIAL HEARING WITHOUT DURESS WHICH IS CONTRARY TO THE 6TH, 7TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

POINT III: THE APPELLANT'S [SIC] WAS DENIED EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS AT HIS DISCIPLINARY HEARING WHICH IS A VIOLATION OF THE 7TH AND ...


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