THOMAS HANLEY 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NOT FOR PUBLICATION WITHOUT THE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-6198-07T16198-07T1

THOMAS HANLEY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

 

Submitted October 20, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from a Final Decision of the Department of Corrections.

Thomas Hanley, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

In this prison disciplinary appeal, appellant, Thomas Hanley, who is incarcerated at East Jersey State Prison in Rahway, appeals from the Department of Corrections' (DOC) adjudication of guilt of prohibited act *.004, fighting with fellow inmate and cellmate Dennis Clifford, in violation of N.J.A.C. 10A:4-4.1(a). A hearing officer reviewed the evidence, including appellant's proffer of self-defense, and entered a guilty adjudication. She imposed a sanction of ten days detention, ninety-five days administrative segregation, suspended for sixty days because Clifford started the fight, ninety-five days loss of commutation credit, and fifteen days loss of recreation privileges. After review by the Assistant Superintendent, the adjudication of guilt was upheld but the loss of commutation credit and recreation privileges was suspended for sixty days, such that if Hanley remained charge free during that sixty-day period, the sanction would be dropped.

On appeal, Hanley argues the determination was against the weight of the evidence he acted in self-defense and he was denied due process. After consideration of these arguments, in light of the record and the applicable law, we affirm.

Sergeant Simpkins and Senior Corrections Officer (SCO) Dixon first observed Hanley and Clifford seated at the same table in the prison dining hall. Suddenly, the two inmates stood up, began shouting and "hitting each other." A "Code 33" was called. Both inmates stopped when ordered and were separated. Responding corrections officers Sergeant Baez, Lieutenant Cunningham and SCO Coburn witnessed the altercation and filed separate reports. Simpkins' report noted that after the two inmates were separated "Clifford ran toward I/M Hanley again swing[ing] his arms . . . but did not make contact." Seconds later, the two resumed fighting. Coburn's report corroborated these facts stating Clifford appeared to be the aggressor. In the course of his disciplinary hearing, Clifford admitted he started the fight.

In addition to reviewing the reports filed by the prison authorities after the incident, the hearing officer reviewed the video of the events. She stated the video shows a physical altercation with both Hanley and Clifford throwing punches. Thereafter, "Hanley appears to be trying to stay away from Clifford & Clifford continues to come at Hanley and continue the fight." On this record, the hearing officer concluded Hanley "did fight back" and was adjudicated guilty of the charged infraction.

The scope of our review is limited. An adjudication of an infraction must be supported by substantial credible evidence. McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Jacobs v. Stephens, 139 N.J. 212, 222 (1995). See also N.J.A.C. 10A:4-9.15(a). A Department of Corrections' decision on prisoner disciplinary matters will be disturbed only upon a finding that its ruling is "arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record[.]" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956).

Here, Hanley admitted he and Clifford were fighting but insists he acted in self-defense. Because the corrections officers' reports and the hearing officer's assessment of the videotape revealed Clifford was the aggressor, Hanley concludes his defense is "irrefutable." Therefore, the hearing officer's decision was arbitrary and capricious and in violation of State due process and fairness guarantees. We reject Hanley's arguments.

"[A] victim of a physical attack will instinctively respond to protect his/her person from harm," and "[DOC's] regulations do not foreclose an inmate from raising the defense of self-defense in a prison disciplinary hearing." DeCamp v. N.J. Dep't of Corr., 386 N.J. Super. 631, 639 (App. Div. 2006). Specifically, the DOC has adopted regulation N.J.A.C. 10A:4-9.13(f), which recognizes a claim of self-defense in the context of a prison disciplinary proceeding involving the use of force among inmates. A claim of self-defense may be demonstrated when the following conditions have been met:

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. [] 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.

[Ibid.]

Hanley's arguments center on Clifford's aggression and his belief that he had no reasonable opportunity to avoid the confrontation or to alert prison authorities. He suggests that under the circumstances, he made efforts to avoid the confrontation by retreating from Clifford. The hearing officer agreed Clifford was the initial aggressor but found the corrections officers' reports described, and the video showed, repeated punches exchanged between the two inmates. Also, she made the specific finding that Hanley fought back. No evidence supports Hanley's suggestion he made an effort to alert corrections officers, and his attempts to retreat occurred after blows were exchanged. Although Hanley had a reasonable opportunity to minimize or avoid the confrontation by alerting custodial staff in the dining area when the parties began yelling, he chose to respond by striking Clifford. Accordingly, the hearing officer found Hanley was not solely defending himself and rejected his self-defense claim.

We conclude the hearing officer considered the appropriate factors in evaluating Hanley's claim of self-defense. Moreover, the Assistant Superintendent modified the sanctions in light of Clifford's aggression and Hanley's attempt to cease fighting after blows were exchanged. We are satisfied there is substantial, credible evidence in the record to support the agency's decision. Jacobs, supra, 139 N.J. at 222. We see no basis on which to reach a contrary conclusion. "Prisons are dangerous places," and prison administrators must be given latitude to control their "volatile environment[s]." Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 65 (App. Div.), certif. denied, 162 N.J. 196 (1999).

Hanley also argues he suffered a violation of his rights because the hearing officer rejected his defense. We determine Hanley's alleged due process violations are without merit. R. 2:11-3(e)(2).

In a DOC disciplinary proceeding, an inmate is not entitled to the full panoply of rights 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, as well as 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, in many instances, the assistance of a counsel substitute. Id. at 525-33.

The record supports Hanley was afforded all the process he was due. We have no basis to disturb the agency's determination.

Affirmed.

(continued)

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A-6198-07T1

November 5, 2009