SHERRON ROBINSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2605-09T2

SHERRON ROBINSON,

a/k/a PAUL GRANDISON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________

May 9, 2011

Submitted January 5, 2011 Decided

Before Judges R. B. Coleman and Lihotz.

On appeal from the New Jersey Department of Corrections.

Sherron Robinson, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Charles S. Cohen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Sherron Robinson, an inmate at East Jersey State Prison, appeals from a final decision of the New Jersey Department of Corrections (DOC) upholding the decision of the hearing officer that found Robinson guilty of prohibited acts *.004, fighting with another person and *.306, conduct which disrupts or interferes with the security and orderly running of the correctional facility. For violation of *.004, sanctions of fifteen days of disciplinary detention and 210 days of administrative segregation were imposed. For violation of *.306, fifteen days of disciplinary detention, 365 days of administrative segregation, 365 days of loss of commutation credits and thirty days loss of recreational privileges were imposed. The sanctions are to be served consecutively.

In his appellate brief, Robinson argues that the evidence is insufficient to establish guilt because another inmate instigated the fight, that there was no protection provided by prison staff and, as such, he was acting in self-defense. Robinson also submits that the sanctions were excessive. We reject these arguments and affirm the final decision of the DOC.

In reviewing DOC decisions respecting discipline of inmates, we apply the standard of review applicable to final agency decisions in general. See, e.g., Blackwell v. Dep't of Corrs., 348 N.J. Super. 117 (App. Div. 2002); Williams v. Dep't of Corrs., 330 N.J. Super. 197 (App. Div. 2000). Thus, our review is limited to a determination of "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole.'" Close v. Kordulak, 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by the substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The burden of demonstrating that the action of the agency was arbitrary, capricious or unreasonable rests upon the individual challenging that action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). In this matter, we find no basis to disturb the findings or the disciplinary action taken.

The critical facts are concisely stated as follows. On October 21, 2009, Robinson attended breakfast in the mess hall. After being approached by inmate Bright, Robinson and Bright reportedly engaged in an argument.1 According to Sergeant Robert Baker, inmate Bright then struck Robinson twice in the face. Robinson appeared to fall to the floor at which point inmate Tolbert came from behind and hit Bright, also knocking him to the floor. Tolbert started kicking and stomping Bright, then Robinson stood up and joined in on the kicking and stomping. At this point, the fight was filmed by Senior Corrections Officer (SCO) Andrew Booker. Robinson was ordered to stop and report to the sergeant's cage, but Robinson continued stomping on Bright. Robinson and Tolbert were restrained and escorted to the institutional hospital. Bright was taken for medical treatment as well. As a result of the incident, mess was delayed by an hour and all shops and inmate yards were canceled.

Sergeant Baker's account was corroborated by SCO Booker's report and the video. The video entered into evidence confirms Robinson's contention that Bright threw the first punch and that Bright knocked Robinson to the floor. The video also shows that Bright was knocked down to the floor by inmate Tolbert and that Robinson subsequently stood up and started kicking and stomping on Bright until Bright was taken away.

Robinson's arguments on appeal rest upon our decision in DeCamp v. New Jersey Department of Corrections, 386 N.J. Super. 631, 640 (App. Div. 2006) where we held that an inmate charged with prohibited act *.004, fighting, is entitled to assert the defense of self-defense. There, we reversed an inmate's adjudication of guilty of prohibited act *.004 because the hearing officer did not consider the impact of the admission of the other inmate that he had been the aggressor. Id. at 635, 640. We remanded for a new hearing, observing that "[w]hen an inmate raises self-defense as an issue, the hearing officer must consider this defense, and make specific findings in support of his/her ultimate decision." Id. at 640. We explained the factors to be considered by a hearing officer when weighing an inmate's assertion that he acted in self-defense and found that the hearing officer should determine:

(1) who was the initial aggressor; (2) whether the force used to respond to the attack was reasonable; (3) whether the inmate claiming self-defense had a reasonable opportunity to avoid the confrontation by alerting prison authorities; and (4) any other factors that would make the use of force by the inmate claiming self-defense unreasonable, because it would interfere with or otherwise undermine the orderly administration of the prison.

[Ibid.]
 

In 2007, the DOC promulgated regulations pertaining to self-defense, N.J.A.C. 10A:4-9.13(f), (g). Those regulations provide:

(f) The New Jersey Department of Corrections has a penological interest to ensure correctional facilities are operated in a safe, secure and orderly fashion; therefore the Department prohibits all forms of violence among inmates. The Disciplinary Hearing Officer or Adjustment Committee will allow an inmate to raise self-defense to a prohibited act involving the use of force among inmates; however, the inmate claiming self-defense shall be 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.

(g) When self-defense is raised by an inmate, the Disciplinary Hearing Officer or Adjustment Committee may consider any other condition or evidence that would cause the force that was used by the inmate to be deemed unreasonable, such as, but not limited to, any use of force that would interfere with or otherwise undermine the safe, secure or orderly operation of the correctional facility.

Here, Robinson has not met the heavy burden of proof of self-defense placed upon him by DeCamp and the regulation. He failed to offer evidence that he did not provoke Bright, and he did not establish that the use of force was not by mutual agreement. Robinson gave no reason for his aggressive use of force after Bright was already on the floor.

Robinson had a reasonable opportunity to avoid the use of force once Bright was knocked down to the ground by inmate Tolbert. Instead, Robinson intentionally chose to re-engage by stomping and kicking Bright while he was on the ground. Thus, Robinson's claim of self-defense cannot reasonably serve to eliminate or reduce the sanctions imposed in this matter.

We likewise find substantial evidence to support the finding that Robinson's conduct disrupted the orderly administration of the prison. The fight was observed by prison guards, and required a substantial modification of the prison's usual procedures for prisoner movement from the mess hall.

Next, Robinson claims that the sanctions imposed on him were excessive since they were the harshest of the three individuals involved. We find nothing either manifestly excessive or unduly punitive in the sanctions imposed, which conformed to relevant administrative regulations. See N.J.A.C. 10A:4-5.1(a); Hampton v. Dep't of Corrs., 336 N.J. Super. 520, 527 (App. Div. 2001) (discussing scope of review and deference to administrative expertise). Moreover, we do not find the imposition of consecutive sanctions in this case arbitrary or capricious, nor excessive. Separate sanctions for the two violations were not inappropriate. The mere act of fighting does not necessarily cause any further consequences, but the nature and circumstances of the fighting involved here spread and caused substantial additional consequences that adversely affected the operation of the entire institution.

Affirmed.

1 The record does not disclose the full name of inmate Bright. Similarly, the full name of the other participant in the incident, inmate Tolbert, is not disclosed in the record.