On appeal from the Board of Trustees, Police and Firemen's Retirement System and the Civil Service Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Fisher and Nugent.
In these consolidated appeals, appellant John C. Taylor challenges the final administrative actions of the Civil Service Commission*fn1 (CSC) and the Board of Trustees of the Police and Firemen's Retirement System (the PFRS Board). The CSC upheld Taylor's removal from his position of Senior Correction Officer (SCO) with the Garden State Youth Correctional Facility, Department of Corrections (DOC), for assaulting an inmate. The PFRS Board denied Taylor's application for accidental disability retirement benefits and imposed a one year forfeiture of pension service credit. We affirm.
The genesis of these appeals is an altercation between Taylor and an inmate. We derive the facts relating to that altercation from the administrative law hearing. On September 2, 2005, Taylor was assigned to the detention unit of the Garden State Youth Correctional Facility. The unit's inmates, agitated about a riot that had occurred the previous day, were clogging toilets and causing flooding throughout the unit. At approximately 1:00 p.m., while Taylor was escorting a minimal security inmate "down . . . the left tier so that he could push all the debris out of the hallway to unclog the drains," another inmate, Willie Jackson, threw a cup of liquid on Taylor.
Jackson claimed that the liquid was water; Taylor said that it was urine and feces.
The minimal security inmate assisting Taylor gave a written statement in which he recounted that "as [he and Taylor] walked down the wing[,] inmate Jackson threw a cup of urine hitting [the minimal security inmate's] shirt and splashing on SCO Taylor's face." According to the minimal security inmate, SCO Taylor immediately told him to exit the wing and the inmate did so with SCO Taylor. Later that day, Senior Investigator Brian Bonomo had Taylor put his uniform shirt into an evidence bag so that the shirt could be sent to a laboratory and analyzed to identify the liquid Jackson threw on Taylor. However, Taylor removed the shirt from the bag before it could be sent for testing.
Taylor testified to the following account of the incident:
As I passed by [i]nmate Jackson's cell, he reached out with his hand and hit me with [the] cup in the face and I twisted down like that and slipped, because I was standing in a bunch of water. I ordered the inmate that was working with me to exit the tier, and then when I regained myself,
[i]nmate Jackson made the comment about, "You could put cuffs on me. I don't need my hands. I'll kick you in your bad wheel.*fn2 "
When specifically asked by the Administrative Law Judge (ALJ) if he fell, Taylor explained that he "was up against the cell bars [and] when [Jackson] hit me, I twisted around and that's when I twisted my knee." When the ALJ again asked Taylor if he fell, Taylor responded, "No. I went to the -- pretty much to the wall."
After throwing the liquid, Jackson commented to Taylor, "you could put cuffs on me," and extended his arms through the jail cell bars. Taylor handcuffed Jackson and then returned to the Officers' Station, while Taylor's partner, Correction Officer recruit Elvin Urrutia, telephoned the shift commander at Center Control and reported that Taylor had been assaulted. Eric Wallenburg, then a Sergeant, responded with five other officers: William Faccone, Terence Farrell, Faustino Saucedo, S. Lee and R. Wolkock.*fn3
When Wallenburg and the other officers arrived at Jackson's cell, Jackson was still handcuffed. The officers ordered him to lie face down on the floor, which he did, and then they entered his cell, put leg irons on his legs, helped him to his feet, and escorted him "off the wing," an officer holding each of his arms. To leave the unit, they had to walk to the end of the wing, turn right, go through the Officers' Station where Taylor had gone to clean himself, walk down another hallway, then ascend a flight of stairs. The group walked to the end of the wing and as they turned the corner into the Officers' Station, Taylor punched Jackson in his upper chest and shoulder area.
Wallenburg testified that "[a]s soon as we turned that corner . . . Officer Taylor hit the inmate with . . . his closed fist." Wallenburg further testified that the two officers holding Jackson "were much, much bigger and stronger than he was," and had his arms securely restrained. Nonetheless, as the group turned the corner, before Taylor struck Jackson, Jackson moved his head and shoulder a little bit forward, but "he didn't move enough to really move towards anyone. The officers had him under control and they were holding his arms. He wasn't going anywhere." Taylor was a couple of feet away when Jackson made the motion forward, but Jackson could not have moved more than "two inches." Wallenburg testified ...