KESAN TAYLOR v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5127-08T2

KESAN TAYLOR,

Appellant,

V.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________________

November 5, 2010

 

Submitted August 31, 2010 - Decided

 

Before Judges Payne and Messano.

 

On appeal from a Final Agency Decision of the New Jersey Department Of Corrections.

 

Kesan Taylor, appellant pro se.

 

Paula T. Dow, Attorney General, attorney

for respondent (Robert Lougy, Assistant

Attorney General, of counsel; Ellen M. Hale,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Kesan Taylor, appeals from a final determination by the Department of Corrections affirming the imposition of disciplinary sanctions for committing the prohibited acts of *.004, fighting, *.306 engaging in conduct that disrupts the orderly running of the correctional facility, and *.003, committing an assault with a weapon. See N.J.A.C. 10A:4-4.1(a). Sanctions were imposed in connection with the *.004 charge (fighting) of 15 days detention with credit for time served, 365 days of administrative segregation and 365 days of loss of commutation time. Consecutive sanctions were imposed on the *.003 charge (assault with a weapon) of 15 days detention, 365 days of administrative segregation, 365 days of loss of commutation time and 180 days of loss of recreational privileges. In connection with the *.306 charge (conduct that disrupts), consecutive sanctions were imposed of 365 days of administrative segregation and 365 days of loss of commutation time.

On appeal, defendant makes the following argument:

THE HEARING OFFICER FAILED TO CONSIDER MITIGATING FACTORS THAT WARRANTED MERGER OR CONCURRENCY OF THE SEVERE AND DISPROPORTIONATE SANCTIONS IMPOSED.

The record discloses that on May 7, 2009, at the conclusion of a recreation period at the East Jersey State Prison, Sergeant R. Service observed abrasions on the face of inmate Mark Pritchett as he left the recreation yard. Suspecting that the injuries resulted from a fight, Service ordered other prison officials to inspect the remaining inmates as they left the yard for injuries. To facilitate the inspection, only eight inmates were permitted to leave the yard at one time. During the course of the inspections, Service noticed that Taylor was shivering and that he appeared to have abrasions and a swollen nose.

Upon completion of the inmate movement, Service viewed the videotape that had been taken of the yard. The videotape disclosed that a verbal altercation had been instigated by inmate Pritchett, who walked around a picnic table to approach Taylor. Punches were then exchanged, and the two wrestled on the ground until they were separated. Thereafter, Pritchett sat down again at a table while Taylor walked toward the handball courts, where he was seen to be trying to locate an object on the ground. Shortly thereafter, Taylor approached Pritchett holding what appeared to be a weapon in his hand. Pritchett backed up, attempted to defend himself, and then ran toward the track, chased by Taylor. After Pritchett fell to the ground, Taylor sat on top of him, moving his hand in a stabbing fashion. After a brief struggle, the fight ended.

A subsequent search of the yard did not reveal a weapon. However, bloody clothes were found, discarded, in a garbage can, and blood was found on the ground by the yard fence near the tables. A search of Taylor's cell disclosed a six and one-half inch shank made out of sharpened fiberglass.

Following discovery of the injuries, Pritchett was escorted to the medical department, questioned, and later referred to Saint Francis Medical Center for treatment. Taylor was taken to a conference room and questioned. Taylor was then strip frisked, checked for additional injuries, handcuffed, escorted to the medical department and referred to Rahway General Hospital for further treatment of his injuries.

Both inmates sustained significant lacerations and abrasions to their faces and bodies. Pritchett had what appeared to be puncture wounds. Taylor sustained a bite to the back of his neck, allegedly inflicted by Pritchett in an effort to defend himself from the second attack.

Charges were served on both inmates, and the investigating officer referred the matter to courtline. Although a hearing was initially scheduled for May 11, 2009, it was postponed to permit the hearing officer to assess Pritchett's involvement in the incident. A hearing took place on May 13, 2009, at which time Taylor was represented by counsel substitute. Both claimed that Taylor did not have a weapon, but the hearing officer found the evidence suggested otherwise. Self-defense was also claimed. In that regard, the hearing officer stated that support for that claim "was evident from view[ing the] video initially." However, it did not explain "Taylor leaving area, retrieval of shank, return to initial fight area and his aggressive and intentional (Refer to video) attempt to stab/slash Pritchett with a weapon." The hearing office found Taylor guilty of all charges. His appeal was denied in a decision identifying all three charges.

On appeal, Taylor claims, correctly, that the incident was initiated by Pritchett, and he therefore claims he is entitled to the defense of self-defense. We disagree. As the State notes, in our decision in DeCamp v. Department of Corrections, 386 N.J. Super. 631 (App. Div. 2006), we recognized the defense of self-defense and held that when that defense is raised as an issue, "the hearing officer must consider this defense, and make specific findings in support of his/her ultimate decision." Id. at 640. In this regard, we said:

In going about this task, 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 Department of Corrections promulgated regulations pertaining to self defense, effective July 2, 2007, prior to the incident at issue. See N.J.A.C. 10A:4-9.13(f) and (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.

In the present case, Taylor has not met the heavy burden of proof place upon him by regulation. Taylor did not offer evidence that he did not provoke Pritchett, and he did not establish that, once Pritchett approached him, that the use of force was not by mutual agreement. Taylor gave no reason for the aggression, and as a result the purpose for the use of force cannot be determined. Further, it appears from the video that Taylor had a reasonable opportunity to avoid the use of force once the first fight had ended, but he intentionally chose to re-engage after arming himself with a shank. Finally, in the second confrontation, not only was Taylor the aggressor, but his use of force far exceeded that of Pritchett, who was unarmed. Thus, Taylor'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 Taylor's conduct disrupted the orderly administration of the prison. Although the fight between Taylor and Pritchett was not observed by prison guards, Pritchett's physical condition following the fight was, and the need to determine whether a fight had occurred and whether another inmate had been similarly injured required a substantial modification of the prison's usual procedures for prisoner movement from the recreation yard.

Taylor claims that the sanctions imposed on him were excessive and that charges should have been merged. Having viewed the video and photographs of the injuries sustained, we disagree. Although relatively close in time, the incident at issue had three discrete components: the initial fight, the second attack, and the substantial disruption to prison routine occurring when the correctional officers initially became aware of Pritchett's injuries and were required to determine if anyone else had sustained injury. The imposition of three consecutive sanctions was therefore justified, and neither merger nor concurrent imposition was required. Cf. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) (consecutive sentences); State v. Truglia, 97 N.J. 513, 518-19 (1984) (merger).

As a final matter, 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); N.J.A.C. 10A:4-5(a)(2); Hampton v. Dept. of Corr., 336 N.J. Super. 520, 527 (App. Div. 2001) (discussing scope of review and deference to administrative expertise).

A

ffirmed.