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Turner v. New Jersey Dep't of Corrections

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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