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In the Matter of Daniel Rodriguez

December 20, 2011

IN THE MATTER OF DANIEL RODRIGUEZ IN THE MATTER OF DOUGLAS TUBBY


On appeal from the New Jersey Department of Law and Public Safety.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 24, 2011 -

Before Judges Parrillo, Grall and Skillman*fn1 .

The opinion of the court was delivered by GRALL, J.A.D.

Douglas Tubby and Daniel Rodriguez are corrections officers employed by the Department of Corrections (DOC), and they are among the defendants in a civil action filed by an inmate. The inmate, Eduardo McLaughlin, alleges violations of the Civil Rights Act, N.J.S.A. 10:6-1 to 6-2, and the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3.*fn2 Tubby and Rodriguez appeal from the Attorney General's decisions denying them legal representation in McLaughlin's civil action pursuant to N.J.S.A. 59:10A-1 to -2. Because the underlying facts and legal issues are the same, we consolidate the appeals. We reverse the denials, because they lack adequate support in the record as a whole and do not address the controlling legal principles. Prado v. State, 186 N.J. 413, 427 (2006).

I

The incident that is the subject of McLaughlin's civil claims against Tubby, Rodriguez and the other corrections officers occurred on May 14, 2008. As a consequence of the encounter, McLaughlin was admitted to the infirmary and treated for multiple injuries that included three wounds on the back of his head which had to be sutured, abrasions on his right arm and back, bruises on his upper torso and a closed head injury.

The trouble started when the alarm on a metal detector sounded as McLaughlin passed through on his way to another area of the correctional facility. As directed, he walked through the detector again; this time he did not set off the alarm. Nevertheless, McLaughlin was frisked. By his account, his pants were pulled up above his knees, and when he questioned the necessity for the roughness, the officer grabbed his testicles. McLaughlin claims that in response to his objection to the touching, another officer called him a name and said McLaughlin would have enjoyed the contact if he were on the street. McLaughlin remarked that the offensive moniker better fit the officer who grabbed him.

After McLaughlin left the area of the metal detector, officers followed him through the doors and directed him to stop and submit to a second frisk in the hallway beyond. That hallway is out of the range of the security camera that captured the first frisk. There, McLaughlin faced the wall and placed his hands on the wall above his head. According to him, during the frisk one of the officers choked him, which led him to turn away from the wall. He was then hit on the head twice and fell to the ground where an officer he named, not Rodriguez or Tubby, kicked him in the head and other unnamed officers struck him with "sticks" on the right side of his body.

According to the officers who provided information about the second frisk and the struggle that followed, McLaughlin was hostile, took his hands from the wall, made a fist and violent and threatening gestures, and resisted efforts to restrain him. One of them admitted that batons were "flying" in response.

Tubby and Rodriguez admitted using their batons. Tubby was present from the time that McLaughlin first passed through the metal detector. He explained that when he saw McLaughlin take his hands off the wall during the second frisk, he turned to tell another officer to call a code. When he looked back, McLaughlin and the other officers were on the floor; accordingly, he joined the group and struck McLaughlin with his baton three or four times in the area of his thighs while McLaughlin was on the floor. Rodriguez arrived as the second frisk was ordered. He saw McLaughlin try to grab another officer, and he admits to hitting McLaughlin once in the leg with his baton before McLaughlin fell to the floor.

The accounts given by the various officers were not entirely consistent, but it is fair to say that someone crediting the versions least favorable to Tubby and Rodriguez could conclude that they each hit McLaughlin on the head with a baton before he was taken to the floor. Specifically, one officer asserts that he was hit in the hand with a baton and ...


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