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Turner v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 20, 2010

DAVID TURNER, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2010

Before Judges Wefing and Messano.

David Turner is an inmate in the custody of the Department of Corrections. He appeals a final agency decision finding him guilty of prohibited acts *.306, conduct which disrupts, and *.004, fighting, and imposing sanctions. N.J.A.C. 10A:4-4.1.

After reviewing the record in light of the contentions advanced on appeal, we remand for further proceedings. The charges were based upon an altercation between Turner and another inmate on March 3, 2009, at South Woods State Prison. In his brief to us, Turner sets forth his factual version of what occurred.

While under incarceration and on March 3, 2009 Turner was attacked by another inmate who "thought" appellant had splashed some mop water on him. Without any questing [sic] Turner regarding the mop water, inmate Perez immediately became aggressive [sic]"walked up on Turner and started (stomping & kicking a puddle of water on the appellant). As the water splashed up on Turner's body "from Turner's legs to his face" Perez approached more closer [sic] and while words exchanged (Perez took a few aggressive swings hiting [sic] Turner. At this point, Turner attempted to talk Perez down, but to no avail Perez kept swing [sic], and while doing so, Turner hit Perez with a right hook "splitting his nose" then hugged on to Perez and tempting [sic] to ask the inmate to stop fighting. . . . Turner was unable to retreat or get Perez to stop fighting . . . .

Corrections officers eventually sprayed both inmates with pepper spray to subdue them.

On appeal, Turner raises the following contentions for our consideration.

POINT ONE

THE HEARING OFFICER'S DECISION WHICH RENDERED APPELLANT GUILTY OF VIOLATING PRISON PROHIBITED ACTS AND/OR NON EXISTING RULES IS ARBITRARY AND CAPRICIOUS, AND WAS NOT BASED ON FUNDAMENTAL FAIRNESS, SUBSTANTIAL EVIDENCE AS REQUIRED BY N.J.A.C. 10A:4-9.15(a) AND 10A:31-16.1(b).

POINT TWO

THE RESPONDENTS AND THEIR HEARING OFFICER ARBITRARY [sic] AND CAPRICIOUSLY VIOLATED APPELLANT TURNER'S DUE PROCESS RIGHTS, EVEN AFTER BEING WELL AWARE OF THE APPELLATE COURT'S RULING & RECOMMENDATION, BECAUSE THE HEARING OFFICER IN THIS CASE ALSO REFUSED, NEGLECTED AND DISREGARDED TO NOT CONSIDER APPELLANT TURNER'S CLAIM OF SELF-DEFENSE, TO FIGHT OFF HIS ATTACKER TO AVOID SERIOUS INJURY OR DEATH.

POINT THREE

THE APPELLANT'S MOTION FOR TEMPORARY EMERGENT STAY OF THE RESPONDENT['S] ADMINISTRATIVE DECISION WHICH IMPOSED ARBITRARY, CAPRICIOUS AND EXCESSIVE SANCTIONS AGAINST TURNER SHOULD BE GRANTED BECAUSE THE ELEMENTS FOR SUCH EXTRAORDINARY RELIEF DO EXIST[], AND GIVEN THE FACTS THAT RESPONDENTS, KAREN BALICKI, LISA JANTZ, AND V. ROSIAK HAVE REFUSED, NEGLECTED AND DISREGARDED TO COMPEL TO THEIR OWN PROCEDURAL DUE PROCESS REGULATION, AS WELL AS THOSE ALREADY RULED/HELD BY THE SUPERIOR COURT.

We note first the limited scope of our review in a matter such as this. The final decision of an administrative body such as the Department of Corrections should not be disturbed on appeal unless it is "arbitrary, capricious or unreasonable." Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quotations omitted). However, "our appellate obligation requires more than a perfunctory review.

Our role is to engage in a careful and principled consideration of the agency record and findings." DeCamp v. New Jersey Dep't of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (quotations omitted).

The core of Turner's argument rests upon our decision in DeCamp, supra, in which we held that an inmate charged with prohibited act *.004, fighting, is entitled to assert the defense of self-defense. Id. at 640. In that case we reversed an inmate's adjudication of guilty of prohibited act *.004 because the hearing officer did not consider the impact of the admission of the other inmate that he had been the aggressor. Id. at 635, 640. We remanded the matter for a new hearing, holding that "[w]hen an inmate raises self-defense as an issue, the hearing officer must consider this defense, and make specific findings in support of his/her ultimate decision." Id. at 640. We outlined the factors to be considered by a hearing officer when weighing an inmate's assertion that he acted in self-defense.

In going about this task, the hearing officer should determine: (1) who was the initial aggressor; (2) whether the force used to respond to the attack was reasonable; (3) whether the inmate claiming self-defense had a reasonable opportunity to avoid the confrontation by alerting prison authorities; and (4) any other factors that would make the use of force by the inmate claiming self-defense unreasonable, because it would interfere with or otherwise undermine the orderly administration of the prison.

[Ibid.]

The hearing officer in this matter did not comply with the procedures we outlined in DeCamp but, rather, simply noted that Turner was guilty because he admitted engaging in the fight. There were no specific findings as to which inmate was the aggressor or whether Turner acted reasonably under the circumstances which existed at the time of the incident. We are not persuaded by the Department's assertion that Turner, by admitting he was involved in this fight, pled guilty to the charge of committing a starred offense.

Nor are we persuaded by its assertion that Turner's adjudication should be affirmed because the Department, subsequent to our decision in DeCamp, adopted N.J.A.C. 10A:4- 9.13(f), recognizing a claim of self-defense. The issue before us is not whether the Department's regulations comply with our holding in DeCamp but whether this particular hearing officer, adjudicating this particular charge, considered the elements of self-defense and made sufficient factual findings to permit a reasoned conclusion as to whether the defense had been established or not.

There is no need for us to address Turner's third argument, in which he seeks a stay of the sanctions imposed. The custodial portion of those sanctions, fifteen days in detention and 240 days in administrative segregation, have been served. The order under review is reversed, and the matter is remanded for further proceedings. We do not retain jurisdiction.

20100520

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