ROBERT TANCREDI 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NOT FOR PUBLICATION WITHOUT THE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-0

ROBERT TANCREDI,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

___________________________________

December 21, 2015

Submitted November 2, 2015 Decided

Before Judges Lihotz and Higbee.

On appeal from New Jersey Department of Corrections.

Robert Tancredi, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).

PER CURIAM

Robert Tancredi, a New Jersey State Prison inmate, appeals from a September 17, 2014 final administrative decision by the Department of Corrections (DOC) adjudicating him guilty of institutional infractions *004, "fighting with another person," and *306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility." N.J.A.C. 10A:4-4.1(a). Tancredi appeals, arguing the DOC's decision must be reversed because it failed to properly consider his self-defense claim. For the reasons set forth below, we reverse.

We discern the following facts from the record. On August 26, 2014, Tancredi and his special needs cellmate began fighting. A responding corrections officer observed both inmates throwing punches at each other. The corrections officer ordered them to stop but neither complied. Another corrections officer reported the inmates were ordered to step back, Tancredi's cellmate then stepped toward him causing the responding corrections officer to use his O.C. spray.1 The same report stated Tancredi explained the inmates were fighting because his "[cellmate] is fucking crazy." A code was called and several corrections officers responded. The code delayed a yard movement. Tancredi was taken to the nurse for a scratch and Tancredi's cellmate was taken for a scratch and a bloody nose.

The incident was investigated, and Tancredi was charged with *004 and *306. In the investigation report, Tancredi stated he spoke with staff regarding his cellmate hearing voices and not taking his prescribed medication.

After being adjourned twice, a disciplinary hearing took place on September 4, 2014. Tancredi argued he told multiple prison staff before the incident to remove him from his cellmate because he feared for his life due to his cellmate's unchecked illness. He stated his cellmate was not taking his medication and regularly stood by the cell door from morning until night yelling profanities. Tancredi claimed he did not want to fight his cellmate, but was forced to defend himself. He also argued when the corrections officers arrived to intervene they only pepper sprayed his cellmate, who continued to advance on Tancredi.

Multiple inmate statements in the record corroborated Tancredi's claims. They reiterated Tancredi asked to be removed from his cell because his cellmate was not taking his medication and yelled profanities all day long. One inmate's incident description stated Tancredi was attacked from behind, and that he only fought back after the corrections officers were delayed in their response.

The hearing officer found Tancredi guilty of prohibited acts *004 and *306. The hearing officer concluded Tancredi did not provide grounds for self-defense finding he continued to fight after assistance arrived, there was no evidence he did not provoke or initiate the fight, and he offered no evidence to contradict staff reports. Tancredi was sanctioned with 120 days administrative segregation, 120 days loss of commutation time, and 20 days loss of recreation privileges.

Tancredi appealed the hearing officer's decision to the Assistant Superintendent. He argued his actions were in self-defense and not mutually agreed upon, stating he neither initiated nor provoked the attack, he merely defended himself against personal harm. He stated there was no reasonable opportunity to avoid the use of force through retreat or by alerting staff, and the force he used was reasonable and did not exceed the amount of force used against him.

The Assistant Superintendent upheld the hearing officer's decision finding Tancredi admitted to fighting, and he continued to fight after being ordered to stop. The Assistant Superintendent also found self-defense was reasonable but only before corrections officers arrived and pepper spray was used.

Tancredi raises the following point on appeal

CLAIMANT FIGHTING IN ORDER TO PROTECT HIMSELF BECAUSE HE WAS ATTACKED BY A "SPECIAL NEEDS INMATE" WHO WASN'T TAKING HIS PSYC MEDS, CONSTITUTES GOOD CAUSE ATTRIBUTABLE TO HIS SAFETY AND WELL BEING AND, THEREFORE, HE SHOULD NOT HAVE BEEN PENALIZED AND SANCTIONED TO AN ADDITIONAL 120 DAYS AD-SEG / 120 DAYS LOSS OF COMM TIME.

We consider Tancredi's argument after our review of the record and the applicable legal principles. We find the hearing officer failed to address the evidence supporting Tancredi's claim of self-defense and there was no credible evidence that he acted other than in self - defense. Therefore, we reverse.

We will reverse an administrative agency decision "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Substantial evidence is evidence that "furnish[es] a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). Substantial evidence has also been defined as evidence that "a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). The burden rests on the challenging party to show the administrative agency decision was arbitrary, capricious or unreasonable. McGowan, supra, 347 N.J. Super. at 563. We do not perform a perfunctory review of the agency findings but engage in a careful and principled examination. Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). "While our scope of review is limited, we cannot be relegated to a mere rubber-stamp of agency action." Id. at 204.

An inmate can raise self-defense to a prohibited act involving force, but carries the burden to present the following evidence in support of his contention

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).]

If an inmate raises self-defense, a hearing officer should consider the claim, make specific findings on the issue, and exonerate the individual charged if the defense is established. DeCamp v. N.J. Dep't of Corr., 386 N.J. Super. 631, 640 (App. Div. 2006).

Here, we find the administrative decision was not supported by substantial credible evidence because the DOC failed to properly consider Tancredi's self-defense claim. Tancredi presented evidence that his cellmate was the aggressor which was uncontroverted by the DOC. In making its decision, the DOC relied upon a corrections officer's report that stated Tancredi and his cellmate continued fighting after being commanded to stop. We find this unpersuasive because the DOC failed to consider another corrections officer's report that explained after the inmates were ordered to step back, Tancredi's cellmate continued to advance. Considering the totality of the evidence, it was reasonable for Tancredi to continue to defend himself as he had no reasonable opportunity to escape his agitated advancing cellmate while confined in his locked cell. There is also evidence Tancredi requested multiple transfers before the fight in order to avoid confrontation. We are satisfied Tancredi used minimal force, exemplified by the cellmate's minor injuries, and this force was only used to protect against personal harm.

We find all the credible evidence presented supported appellant's version of what happened, and there was no credible evidence Tancredi continued fighting beyond the time required in order to protect himself. Accordingly, we reverse the guilty finding.

Reversed.

1 Oleoresin capsicum spray, also known as pepper spray.