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Clauso v. Dep't of Corrections

June 23, 2010

THOMAS CLAUSO, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2010

Before Judges Sapp-Peterson and Espinosa.

Thomas Clauso is an inmate confined at Northern State Prison in Newark. He appeals from the final agency decision imposing disciplinary sanctions for the commission of prohibited acts. We affirm.

On May 28, 2009, after noticing a "paper substance blocking the locking device," Senior Correction Officer (SCO) White asked Clauso to unblock the food port locking device for cell 312, located on Echo 300 East. He reportedly responded, "Hell[,] no[,] you stupid bitch[.] I will fuck you up, I am tired of [correction officers] searching my fucking cell." He also allegedly yelled at SCO White, "I will tie your black ass up and fuck you in your ass you and your mother because you think [you're] a man." Finally, he was alleged to have told SCO White, "I'm a Pagan Bike Rider[,] bitch, I'll have you eliminated asap." When assistance arrived in the area and Clauso was being escorted away, he reportedly stated that SCO was a "bitch[-]ass woman. I'm going to take a polygraph and get all of you[.] I have money."

As a result of these alleged remarks, Clauso was charged with violating the following disciplinary infractions under N.J.A.C. 10A:4-4.1(a): (1) *.005, threatening another with bodily harm; and (2) *.154, tampering with or blocking any locking device. The latter charge was modified to a.256 charge, refusing to obey an order. After being served with the charges, Clauso pled not guilty. His request for counsel substitute was granted, and after a number of postponements, the hearing was held before a hearing officer from the Department of Corrections' (DOC) Central Office.

At the hearing, Clauso denied blocking the food port or saying anything to SCO White. He told the hearing officer that if SCO White was not a lady, he "would have broke her fucking neck. This woman is a nut." His counsel substitute, on his behalf, stated: "We know he has a bad mouth. He doesn't control his language."

The hearing officer found that the *.005 charge had been sustained, finding:

Inmate stated he didn't say anything to that lady. He was referring to Officer White during the confrontation. He requested confrontation and did not address the threatening charge except in [the] question which he asked about the foul language which was reported. During his confrontation[,] his primary questions were about his [*.]154 charge and other questions which had nothing to do with either charge. The inmate clearly threatened the officer at the confrontation by stating that if she wasn't a lady[,] he would have broke[n] her fucking neck. He called her a nut and made all types of unnecessary and derogatory comments about the officer. He made his threats and comments directly in front of the disciplinary staff and paralegals. The paralegal admitted that the inmate has a bad mouth and doesn't know how to control his language. Not being willing to control his mouth and behavior deliberately is not enough of a reason to disregard the seriousness of the charge and the content of the charge. The C/O [Correction Officer] was clear that the inmate made racial and violent threats against the officer, the officer's family and the C.O's person. All requests were addressed. There were no further reasons to delay the hearing.

Charge [*].005 upheld.

With respect to the.256 charge, the hearing officer found:

Inmate was asked to remove the item(s) blocking the food port and he refused. The C/O clearly stated that the inmate refused because he said he didn't do it. Whether he did or didn't[,] he lived in the cell and when the C/O gave him an order he refused to follow the order and remove the item. The inmate became disruptive and disrespectful.

Inmate has a hx [history] of being uncooperative and disobey[ing] staff[] rules and reg. He must ...


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