On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
This is a prison disciplinary appeal. Victor Peel, an inmate incarcerated in East Jersey State Prison, but confined at South Woods State Prison at the time of the underlying incident, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding him guilty of disciplinary infractions *.004, fighting with another person, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, in violation of N.J.A.C. 10A:4-4.1. We affirm.
On May 15, 2009, Peel was in the prison recreation yard participating in a game of "hacky sack" with fellow inmates including Shawn Connolly.*fn1 The inmates had agreed on a set of rules governing the conduct of the game, including one that required a player be pegged with the sack, below the knee, upon the commission of a penalty. According to Peel, Connolly committed a penalty and it being Peel's turn to enforce the penalty, he attempted to peg Connolly in the leg, but missed and the sack hit the ground. Connolly then picked up the sack, threw it, and, according to Peel, hit him in the face, causing a verbal confrontation to ensue. By his own admission, during this altercation, Peel "spit at [Connolly] hitting his leg and foot." This provoked Connolly to spit back at Peel but contact was never made as it hit the ground as Peel walked away.
Afterwards, when yard activities ceased, and once inside the correctional facility, Peel and Connolly engaged in a physical altercation. Senior Corrections Officer (SCO) Koerner observed the inmates exchanging punches and immediately called an emergency code for assistance. The emergency code ceased all institutional operations to allow officers to respond to the emergency area. SCO Koerner then ordered Peel and Connolly to cease fighting and lie on the floor.
Upon the officers' arrival, both inmates were transported to holding cells and separately interviewed. Both Peel and Connolly acknowledged that the fight was over a game of "hacky sack." During this initial interview, Peel admitted to spitting at inmate Connolly, which initiated the ensuing fight. In the course of the subsequent medical evaluations, it was noted that Connolly's hand was reddened, although he attributed the coloration to an old injury. Peel, on the other hand, was treated for multiple wounds on both of his arms and right knee, then medically cleared for placement in Pre-Hearing Detention.
Peel was served with the disciplinary charges *.004 and *.306 within twenty-four hours. An investigation was thereafter conducted, during which Peel was asked, but did not provide, the names of any witnesses. At his request, Peel received the assistance of counsel-substitute and a hearing was thereafter convened before a neutral hearing officer. Peel pled not guilty to the charges and claimed that he was acting in self-defense.
He acknowledged, however, that he had a verbal altercation with Connolly in the recreation yard, which escalated to a physical altercation once inside the correctional facility, and that he spit on inmate Connolly. Peel stated:
[W]e had words out in the Rec Yard. We came back inside[,] he grabbed me, kind of pushing. There were no punches thrown. I did get a gash on my arm. I was walking out of the cell[,] he grabbed me and pulled me back in. My arm hit the door sash. I restrained him again. Yes, I spit on I/M Connolly.
Although Peel was offered and initially declined the opportunity to call witnesses on his behalf during the investigation and earlier in the hearing,*fn2 later in the hearing Peel requested to present a witness statement. The hearing officer, however, denied the request because Peel declined to name the witnesses during investigation so the investigating Sergeant could obtain the statement first-hand. Peel also declined the opportunity to confront adverse witnesses.
In adjudicating Peel guilty of the disciplinary charges, the hearing officer relied on the officers' report and observations, Peel's statement, and the medical reports. Peel received a combined sanction of fifteen days' detention, with credit for time served, 180 days administrative segregation, 180 days' loss of computation time, and thirty days' loss of recreation privileges. On administrative appeal, the Assistant Superintendent upheld the decision of the hearing officer. This appeal follows wherein Peel argues:
I. THE FINAL AGENCY DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE PEEL FAILED TO RECEIVE ALL THE PROCEDURAL DUE PROCESS TO WHICH HE WAS ENTITLED, INCLUDING THE RIGHT TO CALL A WITNESS AND BECAUSE THE ...