ISAIAH ISHOD v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4722-07T14722-07T1

ISAIAH ISHOD,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________________________

 

Submitted July 8, 2009 - Decided

Before Judges R. B. Coleman and Graves.

On appeal from the Department of Corrections.

Isaiah Ishod, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

The opinion of the court was delivered by

R. B. COLEMAN, J.A.D.

Isaiah Ishod, an inmate at South Woods State Prison, appeals from a final agency decision of the New Jersey Department of Corrections (DOC) finding him guilty of prohibited act *.004, fighting, in violation of N.J.A.C. 10A:4-4.1. The fight occurred while Ishod was incarcerated at Northern State Prison in Newark. On appeal, Ishod argues that he was denied equal protection under the law because he was defending himself and not fighting. Ishod also argues that he was denied a fair and impartial hearing because he was never taken out of his cell for his hearing and because the hearing officer did not comply with promises made to induce a plea agreement. We affirm.

On February 26, 2008, Senior Corrections Officer Maurice Ware heard noise emanating from the cell that Ishod shared with inmate A. Malave. When he responded to the commotion, Officer Ware observed Ishod "beating inmate Malave #430028 [a]bout the head and face." Officer Ware ordered the two inmates to stop fighting, but they did not comply, so he issued a "code 10/33" emergency signal. The responding officers subdued the two inmates, and Ishod was escorted to the nurse on duty. Ishod and Malave were moved to separate cells. Officer Ware reported the incident, and Ishod was charged with a violation of prohibited act *.004, fighting, in violation of N.J.A.C. 10A:4-4.1.

Responding officers Morgado, Wallace, and Santiago completed incident reports describing what they saw when they arrived on the scene. Officer Morgado's report states that Ishod and Malave were "involved in a fight." Officer Wallace noted in his report that when he arrived Malave was "assaulting" Ishod. Officer Santiago's report states that he observed Malave kick and punch Ishod in the face and that "Ishod kept his hands up to his face in an attempt to protect himself." Officer Ware's initial report noted that both inmates were "beating each other about the head and face."

On February 27, 2008, Sergeant Mercado delivered a copy of a disciplinary report to Ishod containing the charge against him and conducted an investigation of the incident. Ishod made a statement claiming he was assaulted and was only blocking the punches thrown at him. Sergeant Mercado's report indicates that Ishod requested the assistance of counsel substitute and requested statements from two witnesses: an inmate named Sawab and a corrections officer named Jerry Head. Sergeant Mercado concluded that, based on the reports of the officers, the charge had merit. Accordingly, the matter was referred for a hearing before Hearing Officer James McGovern.

On February 29, 2008, Ishod appeared before Hearing Officer McGovern, but the hearing was adjourned to obtain witness statements. At the March 7, 2008 evidentiary hearing, Ishod claimed that he was assaulted by Malave and acted in self-defense by blocking punches thrown at him, but ultimately, he pled guilty to the fighting charge.

Hearing Officer McGovern imposed a disciplinary sanction of fifteen days detention, with credit for time served. On December 29, 2007, Ishod appealed the decision and sanction to the Administrator, but the Administrator upheld the hearing officer's findings and the sanction imposed.

On appeal to this court, Ishod contends:

POINT I: APPELLANT'S RIGHT TO EQUAL PROTECTION OF LAW WAS VIOLATED WHEN APPELLANT PLEAD ONLY GUILTY TO DEFENDING HIMSELF AGAINST ATTACK, AS PROTECTED BY LAW UNDER: DECAMP V. DEPT. OF CORRECTIONS, 386 N.J.S. 631, 2006 A.D. - WHICH GIVES AN INMATE A RIGHT TO PROTECT HIMSELF IN SELF DEFENSE UPON BEING ATTACKED; APPELLANT'S 7TH & 14TH AMENDMENT RIGHTS WERE VIOLATED CONTRARY TO THE UNITED STATES CONSTITUTION.

POINT II: APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS AND A FAIR AND IMPARTIAL HEARING WITHOUT DURESS WHICH IS CONTRARY TO THE 6TH, 7TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

POINT III: THE APPELLANT'S [SIC] WAS DENIED EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS AT HIS DISCIPLINARY HEARING WHICH IS A VIOLATION OF THE 7TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION.

POINT IV: THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS WAS NOT BASED UPON FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ALSO LACKS THE NECESSARY ELELMENTS [SIC] TO SUSTAIN GUILT BASED UPON SUBSTANTIAL CREDIBLE & RELIABLE EVEIDENCE [SIC] IN THE RECORD AS A WHOLE.

On review, we must uphold a final agency decision unless it is arbitrary, capricious, unreasonable or unsupported by credible evidence. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "'whether the findings could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole . . . .'" In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotations omitted)). N.J.A.C. 10A:4-9.15(a) provides that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."

We have fully considered Ishod's substantive and procedural arguments, and are satisfied that they lack sufficient merit to be discussed in this written opinion, particularly in light of our limited scope of review. R. 2:11-3(e)(1)(E). We add only a few comments.

Ishod, citing DeCamp v. Dep't of Corrections, 386 N.J. Super. 631 (App. Div. 2006), argues he had a right to protect himself because he was acting in self-defense. This argument is related in Point One of Ishod's brief and the same argument is reiterated in Points Three and Four.

In DeCamp, we held that when an inmate raises self-defense as a defense, the hearing officer must consider it and make specific findings on the issue in support of his decision. Id. at 640. After we issued the DeCamp decision, however, the Department of Corrections adopted N.J.A.C. 10A:4-9.13(f), which places the burden of proof of self-defense on the inmate. Pursuant to that regulation, the inmate raising a claim of self-defense is

responsible for presenting supporting evidence that shall include each of the following conditions:

1. The inmate was not the initial aggressor;

2. The inmate did not provoke the attacker;

3. The use of force was not by mutual agreement;

4. The use of force was used to defend against personal harm, not to defend property or honor;

5. The inmate had no reasonable opportunity or alternative to avoid the use of force, such as, by retreat or alerting correctional facility staff; and

6. Whether the force used by the inmate to respond to the attacker was reasonably necessary for self-defense and did not exceed the amount of force used against the inmate.

[N.J.A.C. 10A:4-9.13(f).]

Officer Ware's first-hand observation of Ishod punching Malave provides sufficient evidence to conclude that Ishod was fighting with Malave. The accounts of the other officers do not contradict Officer Ware's testimony; they only suggest that by the time the other officers responded, Ishod was losing the fight.

More importantly, Ishod chose not establish that he was acting in self-defense by proving that the circumstances of the altercation met the conditions of N.J.A.C. 10A:4-9.13(f), and instead, he chose to plead guilty to the fighting charge. Presumably, he received whatever benefits accompanied his guilty plea. We are bound to affirm an agency decision if it is supported by substantial credible evidence; because substantial credible evidence supports the agency's decision, we decline to disturb it on appeal. In re Taylor, supra, 158 N.J. at 657.

In Point Two, Ishod argues that his hearing was "conducted in a way that privacy and safeguards from duress and coercion was [sic] not afforded." Specifically, he complains that his hearing was conducted in earshot of other inmates, that he was placed in pre-hearing detention with a gang member, and that Hearing Officer McGovern did not comply with promises he made to induce Ishod's guilty plea.

Inmates subject to disciplinary proceedings do not receive the full spectrum of rights accorded to criminal defendants, but must be accorded a minimum level of due process. Avant v. Clifford, 67 N.J. 496, 522 (1975). The Court in Avant clarified these rights to include: (1) notice in writing of the allegations against the inmate at least twenty-four hours before the hearing, id. at 525; (2) a hearing before an impartial tribunal, id. at 525-28; (3) the right to call witnesses and present evidence, subject to certain limitations due to the need for security and order in a prison setting, id. at 529; (4) a right to confront and cross-examine adverse witnesses, subject to the same limitations, id. at 529-30; (5) a right to a written statement specifying the evidence relied upon by the tribunal and the reasons underlying the imposed sanctions, id. at 533; and (6) the assistance of counsel substitute where the inmate is illiterate or unable to mount a defense, or where the charges are complex, id. at 529. McDonald v. Pinchak, 139 N.J. 188, 202 (1995) (stating that the Avant requirements "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates").

Ishod does not claim that he was deprived any of the rights guaranteed in Avant, and his claims of "duress" and empty promises made by the hearing officer are entirely unsupported by fact. Ishod's allegations of a deprivation of due process violations are therefore without merit. R. 2:11-3(e)(1)(E).

Affirmed.

 

In appellant's notice of appeal, his name appears as both Isod and Ishod. Because it is clear that the correct spelling of appellant's name is Ishod, we will use that spelling in this opinion.

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A-4722-07T1

May 17, 2010