MARCELLOUS WILLITTS 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NOT FOR PUBLICATION WITHOUT THE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-0673-10T3

MARCELLOUS WILLITTS,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________

December 12, 2011

Submitted November 29, 2011 - Decided

Before Judges Reisner and Simonelli.

On appeal from the New Jersey Department of Corrections.

Marcellous Willitts, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Marcellous Willitts appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) upholding the decision of a hearing officer to impose disciplinary sanctions for committing prohibited act *.004, fighting with another person, in violation of N.J.A.C. 10A:4-4.1. We affirm.

At all times relevant to this appeal, appellant was an inmate at Southern State Correctional Facility (SSCF). At approximately 2:00 p.m. on September 8, 2010, Senior Corrections Officer Hand (SCO Hand) saw Willitts and another inmate exchanging punches on the gym floor. Additional staff responded to an emergency code and broke up the fight. A medical evaluation revealed that Willitts suffered no injuries, but the other inmate suffered a bloody nose, lacerations to his upper lip, gum and scalp, and bruising and swelling on the left side of his head.

Willitts was charged with prohibited act *.004, and served with notice of the charge on September 9, 2010. At a hearing on September 13, 2010, he received substitute counsel, and declined to call witnesses or confront adverse witnesses. He pled guilty and requested leniency, claiming that he acted in self-defense after the other inmate initiated the fight unprovoked. He also submitted answers to a self-defense questionnaire. Hearing Officer DiBenedetto considered SCO Hand's report of the incident, the medical evidence, and Willitts's answers on the self-defense questionnaire. DiBenedetto found Willitts guilty of the charge, and sanctioned him to 10 days' detention with credit for time served, 210 days' administrative segregation, and 210 days' loss of commutation time.

On September 15, 2010, Willitts administratively appealed. He again claimed that he acted in self-defense and requested leniency. On September 16, 2010, Associate Administrator Charles Warren affirmed DiBenedetto's decision. This appeal followed. On appeal, Willitts contends that DiBenedetto ignored or did not fairly consider his self-defense claim.1

We reverse an agency's decision only where it is arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). An adjudication of guilt of a charge against an inmate must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). "Substantial evidence" means "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. New Jersey State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion. See In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) ("Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" (quoting De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985))), certif. denied, 127 N.J. 323 (1990). Applying these standards, we discern no reason to disturb the DOC's decision.

When an inmate is charged with fighting, the hearing officer who adjudicated the charge should consider a proffered claim of self-defense, "and if established, exonerate the individual charged with the infraction." DeCamp v. New Jersey Dep't of Corr., 386 N.J. Super. 631, 640 (App. Div. 2006). In considering a self-defense claim, 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 accordance with DeCamp, the DOC adopted a regulation that recognizes a claim of self-defense in a disciplinary proceeding involving a use of force among inmates. See N.J.A.C. 10A:4-9.13(f). In order to prove self-defense, an inmate must present evidence establishing all 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.

[Ibid.]

DiBenedetto considered Willitts's answers on the self-defense questionnaire, and properly rejected his self-defense claim based on SCO Hand's eyewitness account that Willitts and the other inmate were engaged in mutual fighting. The medical evidence of the other inmate's injuries also established that Willitts used an excessive amount of force. There was substantial, credible evidence supporting an adjudication of guilt. The DOC's decision affirming DiBenedetto's decision was, therefore, not arbitrary, capricious, or unreasonable.

Affirmed.

1 The record does not support Willitts's contention that he was denied the opportunity to call witnesses and present evidence.