TRISTAN LEWIS v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5116-07T35116-07T3

TRISTAN LEWIS,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________

 

Submitted: March 10, 2010 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from a final decision of the New Jersey Department of Corrections.

Tristan Lewis, appellant pro se.

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

PER CURIAM

Inmate Tristan Lewis appeals from a final agency decision of the Department of Corrections adjudicating him guilty of prohibited acts *.002, assaulting any person, and *.306, conduct which disrupts the orderly running of the correctional facility, both in violation of N.J.A.C. 10A:4-4.1(a). These infractions occurred while the inmate was confined at Southern State Correctional Facility (Southern State); he was subsequently moved to New Jersey State Prison. We affirm.

On March 28, 2008, Senior Corrections Officer S. Baker responded to a "code 33" in unit four at Southern State where Officer E. Oslin needed assistance with another inmate who was unruly. Lewis interceded in the altercation by kicking and punching Baker in the head, back, arms, and ribs. Oslin saw Baker on the ground trying to get a radio cord off his neck while he was being assaulted by Lewis. Oslin issued a second "code 33" and other officers arrived to assist Baker. The second "code 33" interrupted all movements and routine activities in the prison.

Lewis was placed in pre-hearing detention. On March 29, the charges were referred to a disciplinary sergeant for investigation after which Sergeant T. Stremme served the charges on Lewis. Lewis declined to make a statement, named one witness, and requested the assistance of a counsel substitute. Stremme found the charges to be meritorious and referred them to a disciplinary hearing officer.

Lewis appeared before Disciplinary Hearing Officer Salvatore Maniscalco on March 31, 2008. The initial hearing was adjourned to permit the hearing officer to obtain information on the extent of staff injuries. The second hearing date of April 1 was postponed to arrange for confrontation with Baker, and the April 3 hearing was adjourned to permit Lewis to submit questions. The April 7 and 9 hearings were adjourned for the same reason. Confrontation was then scheduled for April 11, 2008, at which time the hearing proceeded. At that hearing, Lewis and his counsel substitute both gave statements on his behalf in which Lewis denied assaulting Baker. Baker was subjected to in-person confrontation.

The hearing officer relied on Baker's report of the incident, as well as reports from other officers and the medical staff. He also relied on the testimony of Baker during cross-examination, which was consistent with his report. According to the hearing officer, "[Baker] stated that as he was assisting CO Oslin during an altercation with another inmate[,] Lewis jumped into the altercation and assaulted him by kicking him until other staff arrived." The hearing officer also found:

Inmate argued that he was asleep at the time and was only chosen because of his alleged gang membership. CO Baker, however, testified that he positively identified inmate Lewis as one of the inmate[s] that had assaulted him during the incident. Inmate witness statement offered no further information regarding the matter.

As a result, the hearing officer found that there was substantial evidence to support the charge.

With respect to the *.306 charge, the hearing officer found, "Since the inmate actions during the incident escalated the physical confrontation and caused additional injuries to the staff[,] his actions constitute[d] a disruption of the normal operation and safety of the institution. His action[s] also inhibited the facilit[y's] ability to quell the disturbance." As a result, the hearing officer determined that the *.306 charge was supported by substantial evidence.

The hearing officer sanctioned Lewis with fifteen days detention with credit for time served, 365 days administrative segregation, 365 days loss of commutation credit, and thirty days loss of recreation privileges on the *.002 charge. With the exception of the loss of recreation privileges, the hearing officer imposed an identical consecutive sanction for the *.306 charge. The charges were also referred to the Special Investigations Division for potential referral to the Prosecutor's Office.

Lewis appealed the hearing officer's findings and sanctions on April 14, 2008, to New Jersey State Prison Administrator Michele Ricci. The appeal was referred to Southern State, and on April 25, 2008, assistant superintendent Valetine Rosiak upheld the findings and sanctions. This appeal followed.

Defendant presents the following issues for our consideration:

POINT I - INMATE LEWIS CONTENDS THAT HE WAS DENIED HIS CIVIL RIGHTS WHEN THE HEARING OFFICE[R] ADJUDGED HIM GUILTY ON THE FALSE STATEMENTS USED AGAINST INMATE LEWIS IN RETALIATION FOR A CORRECTIONS OFFICER BEING BEATEN.

POINT II - APPELLANT CONTENDS THAT HIS CIVIL RIGHTS WERE VIOLATED WHEN CORRECTIONS OFFICER BRUTALLY BEAT HIM AFTER HANDCUFFING HIS HANDS BEHIND HIS BACK, IN RETALIATION FOR AN OFFICER BEING BEATEN.

As a threshold matter, we have no jurisdiction over the issues raised by Lewis in Point II. This is so because the alleged deprivation of Lewis's civil rights was not considered by the administrative agency as part of the disciplinary hearing. The scope of our appellate review is limited by Rule 2:2-3(a)(2) to final decisions or actions of any state administrative agency. As a general proposition, an appellant must exhaust all available administrative relief before taking an appeal. Ortiz v. Dep't of Corrections, 406 N.J. Super. 63, 69 (App. Div. 2009); Elon Assocs. v. Twp. of Howell, 370 N.J. Super. 475, 482-84 (App. Div.), certif. denied, 182 N.J. 149 (2004). Lewis has not advanced the claims before the Department of Corrections. Thus, we will not consider the issue raised in Point II of Lewis's brief.

Turning to Lewis's first point, the scope of our review is limited. We are required to determine whether there was substantial evidence that Lewis committed a prohibited act. Avant v. Clifford, 67 N.J. 496, 530 (1975); N.J.A.C. 10A:4-9.15(a). We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The record before us contains substantial evidence that Lewis assaulted Baker, causing a disruption in the prison facility. The hearing officer, inferentially at least, found Baker's testimony more credible than that of Lewis and his witnesses. According to the Preliminary Incident Report, six inmates were involved in the fracas and nine officers were involved in the effort to quell the disturbance. Lieutenant J. Rossiter prepared a special report in which he related that Lewis was identified as a participant in the altercation, placed in handcuffs, and removed from the area. Five officers reported injuries. Sergeant K. Keen observed Lewis resisting efforts by Oslin to restrain him and reported that he placed Lewis in handcuffs and escorted him to detention. He further reported that Lewis continued to be combative after handcuffs were applied. Oslin reported that he saw Lewis kicking Baker in the head. Baker reported that another inmate began to wrap the cord of Baker's radio around his neck and that Lewis and others helped drag Baker down the wing, all the while kicking and punching him.

Additionally, the medical staff reported that five officers were examined following the "code 33" altercation. Baker had a one centimeter laceration to the right side of his scalp. A second officer complained of pain in his right hand; redness and swelling were noted. A third officer complained of pain in his left hand; swelling and redness of the knuckles were noted. Oslin and a fifth officer did not have any injuries.

Lewis claimed that he was on his bed, not involved in the altercation, and was targeted for disciplinary action because of his alleged affiliation with gang members. He identified inmate Calvin Woolridge as a witness. However, in Woolridge's statement, he denied seeing anything that night, stating that he was asleep. We are satisfied that there was substantial evidence in the record supporting the hearing officer's determination of both charges. We find no basis for disturbing those determinations.

Lewis raises an additional argument in his reply brief. He contends that the hearing officer disallowed several crucial questions during confrontation with Baker. Of course, all issues on appeal must be raised in the appellant's initial brief in order to give the respondent an opportunity to address the issue. See R. 2:6-2(a)(5) (brief to be divided "into as many parts as there are points to be argued"); Pressler, Current N.J. Court Rules, comment on R. 2:6-5 (2010) and cases cited therein. However, even if we were to consider the issue on the merits, we are satisfied that the issue does not warrant discussion in this opinion. R. 2:11-3(e)(2). Lewis's right of confrontation was not abridged.

 
Affirmed.

(continued)

(continued)

8

A-5116-07T3

May 18, 2010