NASIR TURNER 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NOT FOR PUBLICATION WITHOUT THE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-2729-09T2

NASIR TURNER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________

December 1, 2011

Submitted November 15, 2011 Decided

Before Judges Payne and Reisner.

On appeal from the New Jersey Department of

Corrections.

Nasir Turner, appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Charles S. Cohen, Deputy Attorney General, on the brief).

PER CURIAM

Nasir Turner, an inmate, appeals from a January 15, 2010 final decision of the Department of Corrections (DOC), finding that he engaged in prohibited act *.004 (fighting with another person). Appellant was sanctioned with 15 days detention, 180 days administrative segregation, and 180 days loss of commutation time. We affirm.

I

We begin by summarizing the evidence.1 The disciplinary charge arose out of a melee involving many inmates at Bayside State Prison. Sgt. J. Henson reported that on January 7, 2010, at 6:55 a.m., he and several other officers responded to a "Code 33" call concerning a fight on the "2-1 and 2-2 line" housing areas of the prison. When Henson arrived, two corrections officers had already secured the sliding doors to the cells, but several inmates "who refused to lock in were kicking and punching each other." Henson ordered all of the inmates who were still fighting to "immediately stop and lie on the floor face down[,]however[,] all refused and continued to fight." His report listed all of those recalcitrant inmates by name; Turner was one of them. According to another report, from Officer Saunders, "[inmate Turner] was observed fighting and throwing punches with several [inmates] on the 2-1 line."

Turner responded to the charge in a written statement dated January 7, 2010. He asserted that he initially left his cell because he was told that his friend Lampley was fighting with another inmate named Smiley. However, on seeing that the confrontation was only an argument and not a fight, Turner returned to his cell to finish his breakfast. He then "heard some kind of [stampede] outside on the tier," looked out of his cell and saw a fight going on, and "went to see who it was." At this point the "code went off," the cell doors were closing, and Turner was unable to get back into his cell before the door closed. Turner asserted that as he was waiting outside his cell, he heard an inmate named Cole tell another inmate named Tidy to "f--k me up." According to Turner, "[n]ext thing I know Smiley punches me in the face and I start fighting with Smiley & the kid Tidy. Next the CO's [sic] come and cuff us and take us [to] the lockup."

According to the disciplinary adjudication report, which was signed as to accuracy by Turner's inmate counsel substitute, at his hearing Turner declined to call defense witnesses and declined to confront any adverse witnesses. Instead, Turner relied on his written statement and the following additional statement: "I was standing by the door. I got hit. I was locked out and couldn't get back into [the cell]. That is why I was in the hall. They did not identify me fighting with nobody."

The hearing officer found Turner guilty. In a short summary of the evidence, the hearing officer noted that there were "very extensive reports over 100 pages shown to subject and counsel substitute." The hearing officer acknowledged the inmate's explanation of the event, but instead chose to credit the corrections officers' incident reports, noting that the "preliminary incident report" was "specific in describing subject's involvement."

Turner administratively appealed the decision, contending that it was not supported by sufficient credible evidence; that there were no reports identifying him "throwing punches or fighting" with another inmate; that he "was assaulted"; and that the hearing officer gave no individualized consideration to the facts of his case. However, the prison's assistant superintendent rejected the appeal, concluding that the hearing officer's decision "was based upon substantial evidence."

II

Our review of the agency's decision is limited. We will affirm the agency's determination so long as the agency provided the inmate with procedural due process, see McDonald v. Pinchak, 139 N.J. 188, 192 (1995), and so long as its decision is supported by substantial credible evidence and is consistent with applicable law. See In re Herrmann, 192 N.J. 19, 28 (2007); In re Taylor, 158 N.J. 644, 657 (1999).

On this appeal, Turner presents the following contentions:

POINT I: APPELLANT TURNER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS AND FAIRNESS WHEN THE HEARING OFFICER RENDERED AN ARBITRARY, CAPRICIOUS AND UNREASONABLE FINDING OF GUILT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

POINT II: THE APPELLANT WAS DENIED A FAIR AND IMPARTIAL HEARING WHEN THE HEARING OFFICER FAILED [TO] OBTAIN WITNESS STATEMENTS REQUESTED BY DEFENDANT APPELLANT.

POINT III: HEARING OFFICER JAMES MCGOVERN DID NOT HAVE SUBSTANTIAL EVIDENCE TO FIND APPELLANT NASIR TURNER GUILTY OF DISCIPLINARY INFRACTION *.004 FIGHTING WITH ANOTHER PERSON, THEREFORE MUST BE REVERSED.

POINT IV: THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS AND FAIRNESS WHEN THE ASSOCIATE ADMINISTRATOR RENDERED A FINAL DETERMINATION WITHOUT CITING A BASIS THEREFORE.

Having reviewed the record in light of the applicable law, we find no merit in any of those arguments. They warrant no discussion beyond the following comments. R. 2:11-3(e)(1)(E).

Turner asserts that the DOC's decision is not supported by substantial credible evidence. He also argues that the hearing officer did not let him introduce documentary evidence; failed to properly consider his claim of self-defense; and failed to identify the other inmate with whom he allegedly fought. From the fact that the hearing officer issued similar decisions in the cases of several other inmates, Turner infers that the hearing officer pre-judged his case and did not give individualized consideration to his defenses. Turner also contends that the agency's final decision contained insufficient factual findings.

Addressing the procedural issue first, there is nothing in the record to support the inmate's claim that he sought to introduce evidence that was rejected or that he needed more time to collect evidence and was refused the opportunity. The hearing decision, which his counsel substitute signed, acknowledged that he waived the right to present or confront witnesses.

We next address the issue of self-defense. In DeCamp v. N.J. Department of Corrections, 386 N.J. Super. 631, 641 (App. Div. 2006), we held that in the absence of regulations providing otherwise, the DOC must permit inmates to raise the defense of self-defense in disciplinary proceedings. Following our decision, the DOC adopted regulations allowing an inmate accused of using force to raise a claim of self-defense. N.J.A.C. 10A:4-9.13(f). However, to substantiate that defense, the inmate must present the proofs required by the regulations:

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.

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

While Turner claimed that he was fighting with inmates Smiley and Tidy because one of them attacked him first, he produced no witnesses to corroborate his version of events. He also failed to explain why he did not stop fighting when the officers arrived on the scene and ordered the inmates to desist and lie on the floor. See N.J.A.C. 10A:4-9.13(f)(5). Further, the version of the fight that he provided in his appellate brief, that he was attacked "by an unidentified inmate" and knocked unconscious, contradicts the version he presented at the administrative hearing.

We find no basis to disturb the hearing officer's decision to credit the reports of Sgt. Henson and Officer Saunders, which specifically identified Turner as one of the combatants. Further, in his own written statement, Turner identified the inmates with whom he was fighting. While the hearing officer's decision could have included more specific credibility findings, the decision, viewed as a whole, leaves no doubt that the hearing officer did not find the inmate's version believable and instead chose to credit the officers' reports. Turner did not provide us with copies of disciplinary reports concerning any other inmate, but even if he had, our focus would still be on whether the decision in his case was sufficiently specific and supported by substantial credible evidence. We conclude that it was. Finally, the assistant prison administrator's final decision gave sufficient reasons for upholding the hearing officer's determination. See N.J.A.C. 10A:4-11.5(a).

1 The hearing officer's decision referred to over one hundred pages of documentation that was introduced at the disciplinary hearing, but the parties have only provided us with a portion of those documents. We summarize what was provided to us.