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Lewis v. Dep't of Corrections

May 18, 2010

TRISTAN LEWIS, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a final decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 10, 2010

Before Judges C.L. Miniman and Waugh.

Inmate Tristan Lewis appeals from a final agency decision of the Department of Corrections adjudicating him guilty of prohibited acts *.002, assaulting any person, and *.306, conduct which disrupts the orderly running of the correctional facility, both in violation of N.J.A.C. 10A:4-4.1(a). These infractions occurred while the inmate was confined at Southern State Correctional Facility (Southern State); he was subsequently moved to New Jersey State Prison. We affirm.

On March 28, 2008, Senior Corrections Officer S. Baker responded to a "code 33" in unit four at Southern State where Officer E. Oslin needed assistance with another inmate who was unruly. Lewis interceded in the altercation by kicking and punching Baker in the head, back, arms, and ribs. Oslin saw Baker on the ground trying to get a radio cord off his neck while he was being assaulted by Lewis. Oslin issued a second "code 33" and other officers arrived to assist Baker. The second "code 33" interrupted all movements and routine activities in the prison.

Lewis was placed in pre-hearing detention. On March 29, the charges were referred to a disciplinary sergeant for investigation after which Sergeant T. Stremme served the charges on Lewis. Lewis declined to make a statement, named one witness, and requested the assistance of a counsel substitute. Stremme found the charges to be meritorious and referred them to a disciplinary hearing officer.

Lewis appeared before Disciplinary Hearing Officer Salvatore Maniscalco on March 31, 2008. The initial hearing was adjourned to permit the hearing officer to obtain information on the extent of staff injuries. The second hearing date of April 1 was postponed to arrange for confrontation with Baker, and the April 3 hearing was adjourned to permit Lewis to submit questions. The April 7 and 9 hearings were adjourned for the same reason. Confrontation was then scheduled for April 11, 2008, at which time the hearing proceeded. At that hearing, Lewis and his counsel substitute both gave statements on his behalf in which Lewis denied assaulting Baker. Baker was subjected to in-person confrontation.

The hearing officer relied on Baker's report of the incident, as well as reports from other officers and the medical staff. He also relied on the testimony of Baker during cross-examination, which was consistent with his report. According to the hearing officer, "[Baker] stated that as he was assisting CO Oslin during an altercation with another inmate[,] Lewis jumped into the altercation and assaulted him by kicking him until other staff arrived." The hearing officer also found:

Inmate argued that he was asleep at the time and was only chosen because of his alleged gang membership. CO Baker, however, testified that he positively identified inmate Lewis as one of the inmate[s] that had assaulted him during the incident. Inmate witness statement offered no further information regarding the matter.

As a result, the hearing officer found that there was substantial evidence to support the charge.

With respect to the *.306 charge, the hearing officer found, "Since the inmate actions during the incident escalated the physical confrontation and caused additional injuries to the staff[,] his actions constitute[d] a disruption of the normal operation and safety of the institution. His action[s] also inhibited the facilit[y's] ability to quell the disturbance." As a result, the hearing officer determined that the *.306 charge was supported by substantial evidence.

The hearing officer sanctioned Lewis with fifteen days detention with credit for time served, 365 days administrative segregation, 365 days loss of commutation credit, and thirty days loss of recreation privileges on the *.002 charge. With the exception of the loss of recreation privileges, the hearing officer imposed an identical consecutive sanction for the *.306 charge. The charges were also referred to the Special Investigations Division for potential referral to the Prosecutor's Office.

Lewis appealed the hearing officer's findings and sanctions on April 14, 2008, to New Jersey State Prison Administrator Michele Ricci. The appeal was referred to Southern State, and on April 25, 2008, assistant superintendent Valetine ...


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