FAISAL LODHI 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NOT FOR PUBLICATION WITHOUT THE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-5979-09T3

FAISAL LODHI,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________

April 25, 2011

Submitted March 30, 2011 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Department of Corrections.

Faisal Lodhi, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Anne Marie Kelly, Senior Deputy Attorney General, on the brief).

PER CURIAM

Faisal Lodhi is an inmate confined at Bayside State Prison. He appeals from his adjudication of guilt on disciplinary infraction *.002,1 assault, as set forth in N.J.A.C. 10A:4-4.1(a). We reverse.

On April 7, 2010, Lodhi became involved in an incident with another inmate, Trapani. There were no witnesses to the incident, and according to the statement of Trapani, he did not report the incident. Rather, someone else reported the incident, and when he was questioned by Supervising Officer Keith Hooper and Dr. Cone, he told them the truth about it. Officer Hooper's report listed as physical evidence "camera footage2 and written statement from victim. Pictures of Trapani #644061 face." Lodhi declined to make a statement at that time, indicating that he would do so at the "court line." He was offered the opportunity to present witnesses but declined.

Lodhi was appointed counsel substitute and submitted a written statement on his behalf to the hearing officer. In his statement, Lodhi indicated that it was Trapani who first assaulted him and that he acted in self-defense:

On 4/17/10, at approximately 7:15 A.M., [Inmate] Trapani was standing in front of my room, 118, in Talbot Hall. In the midst of a conversation I was having with my bunky[,] [Inmate] Trapani began to fling racial slurs at me saying "get on your flying carpet and fly away, you[']re Bin Laden's nephew," and "I hate your kind." I responded with my own verbal comments, and my room residents started to laugh at him when I told him "he should cut off that fur coat he got on." At that point he entered my room and said "fuck off Habib!!" I told him to get out because he was in violation of Talbot Hall's rules. He then exited the room but he was so angry that he entered again[,] and while I was opening my locker he punched me in the side of my head knocking my glasses off of my face. By the time I picked up my glasses[,] he had left the room. I tried to go into the couns[e]lor's office, which [Inmate] Trapani was standing in front of, when he gestured toward me as if he was going to strike me again. At this time I acted to defend myself. I then went back into my room to avoid . . .3 confrontation[,] at which point [Inmate] Trapani continued to curse me out for almost five more minutes.

The hearing officer adjudicated Lodhi guilty of the charge, referencing the evidence upon which he relied as: (1) A-1, Trapani's statement; (2) A-2, photos of the victim; and (3) A-3, the nurse practitioner's (Tomasso) assessment of Trapani. The hearing officer imposed fifteen days detention, 180 days of administrative segregation, and 180 days of lost commutation time. Lodhi appealed the disciplinary decision, which was upheld by the Assistant Superintendent. The present appeal followed.

Our review of the Department of Corrections' (Department) decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if "it would have reached a different result," so long as "sufficient credible evidence in the record" exists to support the agency's conclusions).

An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of counsel substitute. Id. at 523-29.

The record shows that the disciplinary process here did not violate Lodhi's due process rights. He was provided with a counsel substitute. He was advised of his right to call witnesses on his behalf and to confront adverse witnesses and declined to do so. Moreover, he and his counsel substitute had the opportunity to review and challenge the physical evidence presented. Finally, the hearing was conducted before a neutral factfinder.

While we are satisfied the disciplinary process comported with due process, we are constrained to reverse because the hearing officer's decision is completely bereft of any consideration of Lodhi's self-defense claim. The Department argues that this contention is without merit because Lodhi did not meet the conditions for interposing the defense as set forth in N.J.A.C. 10A:4-9.13(f), which provides in pertinent part:

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.

In his statement, Lodhi indicated that he was not the initial aggressor, had not done anything to provoke Trapani, he attempted to go to the counselor's office, but Trapani was standing in front of it, and he only resorted to the use of force to defend himself when Trapani "gestured toward me as if he was going to strike me again." The fact that the evidence presented is limited to Lodhi's statement does not mean the statement is not competent evidence. This was not a situation where the fact of the assault was disputed by Lodhi. Therefore, the photographs of Trapani's injuries and Tomasso's assessment of his injuries were not helpful to a determination of whether Trapani was the victim of an unprovoked attack or whether Lodhi had been the victim of an unprovoked attack and acted in self-defense. Setting aside those two pieces of irrelevant evidence, the hearing officer was left only with Trapani's version of the events, which the hearing officer relied upon in adjudicating Lodhi's guilt. In doing so, the hearing officer inexplicably failed to comment upon whether Lodhi's statement was considered, and if considered, the reason why it was rejected. Although Officer Hopper indicated in his incident report there was a videotape, it was "subsequently determined that there was no camera in the room[.]"

We have previously stated that "although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review. Our role is to engage in a careful and principled consideration of the agency record and findings." DeCamp v. N.J. Dep't of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (citations and internal quotation marks omitted). In undertaking this task, we are satisfied, particularly in light of the hearing officer's consideration of Trapani's written statement, that Lodhi's statement warranted consideration followed by "specific findings in support of his/her ultimate decision." Id. at 640. In the absence of such findings, the Assistant Superintendent's determination that the "evidence provided is credible and supports the [*.]002 charge[,]" is nothing more than a conclusory assertion of Lodhi's guilt unexplained by or supported with reference to substantial credible evidence in the record, beyond the fact of the assault, which, as noted earlier, was never disputed. More is required to permit us to defer to the expertise of the Department and its investigators. See Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-204 (App. Div. 2000). "[W]ere we to accept the naked conclusion" of the hearing officer, as did the Assistant Superintendent, "we would merely be rubber-stamping the Department's opinion, for it provides no real guidance to the conclusion it reached. That we cannot, and will not, do." Id. at 204.

1 Disciplinary infractions preceded by an asterisk "are considered the most serious and result in the most severe sanctions[.]" N.J.A.C. 10A:4-4.1(a).

2

It was later learned, however, that there were no cameras in the location where the incident occurred.

3 This portion of copy of the handwritten statement is cut off.