JONATHAN BELLAMY 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NOT FOR PUBLICATION WITHOUT THE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-03232-13T3

JONATHAN BELLAMY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

October 7, 2015

Submitted June 1, 2015 Decided

Before Judges Lihotz and Rothstadt.

On appeal from the New Jersey Department

of Corrections.

Jonathan Bellamy, appellant pro se.

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

PER CURIAM

Jonathan Bellamy, a state prisoner serving an eight year sentence, appeals from the December 18, 2013 final administrative decision of the Department of Corrections (DOC) adjudicating him guilty of institutional infraction *.004, fighting with another person. N.J.A.C. 10A:4-4.1(a). He argues his adjudication should be set aside because the evidence presented at the hearing was insufficient to prove his guilt, he was improperly denied the opportunity to assert self-defense, his due process rights were violated by being prevented from calling witnesses to testify on his behalf, and he suffered prejudice by the hearing officer's failure to follow the applicable procedural rules. In opposition, the DOC argues appellant's due process arguments should not be considered as they were not raised before the agency and his conviction should be sustained because appellant's disciplinary hearing "comported with all procedural due process requirements and the finding of guilt is supported by substantial credible evidence."

We have considered the parties' arguments in light of our review of the record and the applicable legal principles. We reverse.

The institutional charges brought against appellant were the result of a correction officer's December 11, 2013 receipt of two anonymous notes stating that appellant and three other inmates had been involved "in a serious altercation." In an ensuing investigation, a physical examination of appellant revealed "injuries consistent with a fight," but did not indicate any injuries to the other participants identified in the notes. In response to questioning about the injuries, appellant advised that he was assaulted while he was sleeping by unknown assailants, who retaliated against him for not participating in gang activities.1 Based on appellant's statement and the medical report regarding his injuries, the investigating officer served appellant on December 12, 2013, with a copy of the charge against him, to which he pled not guilty. The matter was referred to court line for a hearing. In connection with the referral, appellant did not identify any witnesses, but requested the assignment of counsel substitute, which was granted.

At the hearing, the hearing officer considered the reports submitted by the correctional facility. Those reports included a prehearing detention placement authorization, which indicated the charge was brought against appellant because of his being named in the anonymous notes and his injuries being "consistent with a fight." They also included a preliminary incident report, which stated that the two anonymous notes "stated [appellant] had been assaulted by [three other inmates], appellant, "was found with multiple injuries to the face," and appellant stated "[h]is injuries [were] in retaliation for not participating in the gang." The report also confirmed that the three other inmates' examinations were negative for injuries, specifically to their upper bodies and knuckles, and like appellant, two of the three were identified as gang members. The two anonymous notes were also produced as part of the facility's evidence. Both notes confirmed that appellant had been assaulted. However, contrary to the notes' explanation of what occurred, a physical examination report prepared in connection with appellant's pre hearing detention indicated the "[e]xplanation of inmate's complaint of injury" was that he was "injured while playing baseball." The report detailed the injuries to appellant's face and opined that they were one to two days old. Photographs of appellant's injuries were included with the report.

In another report considered by the hearing officer, an inmate's statement form dated December 11, appellant stated "I was asleep and was assaulted. Did not see who or how many." However, according to the hearing officer, at the hearing appellant also stated "I was asleep[,] I did [not] see anything[, and] how am I going to fight three people."

After considering the evidence and arguments, the hearing officer adjudicated appellant guilty of the *.004 offense. In the hearing officer's written statement of adjudication, she stated that appellant was offered the opportunity to "request witness[es but he] declined." Similarly, the statement noted appellant was offered the opportunity to cross-examine and confront adverse witnesses, but also declined that opportunity.

In her statement of reasons, the hearing officer expressly relied upon the medical evidence and upon what she perceived as an inconsistency in appellant's statements. Specifically she stated appellant "claimed he does not know who assaulted him. [He] shared that when he was beaten his face was covered with a blanket; yet, he verbalized in court line that how was he suppose[d to] fight three guys." She also noted that the other inmates identified in the anonymous notes denied being involved and, in fact, one claimed he came to appellant's aid. The hearing officer also stated

Security Staff concluded the incident [may be] gang relate[d]. [Appellant] shared that he had denounced his gang affiliation with [a gang]. Once . . . [g]ang [m]ember[s] denounce their affiliation [they] become[] "Food." [Appellant] had been assaulted for not participating in the gang.

The hearing officer concluded appellant was guilty of the charge and imposed various administrative penalties for the violation.

Appellant appealed the hearing officer's decision. In his appeal, appellant essentially argued there was insufficient "substantial" evidence to support the adjudication of his guilt. After considering his arguments, the DOC affirmed the finding of guilt, but reduced the sanctions imposed. This appeal followed.

The scope of our review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "Ordinarily, an appellate court will reverse the decision of the administrative agency 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) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). "Our role is to engage in a careful and principled consideration of the agency record and findings." DeCamp v. N.J. Dept. of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (citation and internal quotation marks omitted). "Accordingly, our function is not to merely rubberstamp an agency's decision[.]" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (citation omitted). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80).

"[A] disciplinary hearing officer's adjudication that an inmate committed a prohibited act must be based on substantial evidence in the record." Figueroa, supra, 414 N.J. Super. at 191 (citing N.J.A.C. 10A:4-9.15(a)). Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," or "evidence furnishing reasonable basis for the agency's action." Id. at 192 (citations and internal quotations marks omitted). "[D]isciplinary actions against inmates must be based on more than a subjective hunch, conjecture or surmise of the factfinder." Id. at 191.

Also, prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply to those hearings. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995).

Among the rights guaranteed to prisoners, is the ability to raise a claim of self-defense as a justification of his or her actions. Specifically, N.J.A.C. 10A:4-9.13(f) states an "inmate claiming self-defense shall be responsible for presenting supporting evidence that shall include each of" six specific "conditions." Among the six, is the requirement that "[t]he inmate had no reasonable opportunity or alternative to avoid the use of force, such as, by retreat or alerting correctional facility staff." (emphasis added). Thus, in order to invoke the defense, the inmate must have, in fact used force against an aggressor.

Applying these standards here, we conclude appellant received all of the procedural due process safeguards to which he was entitled, including the ability to raise a self-defense claim. We find that appellant in fact implicitly raised the claim, which the hearing officer implicitly rejected. We agree with that determination because we cannot discern from the facts found by the DOC that appellant ever used any force. All of the evidence was, in fact, to the contrary. The medical examinations of the alleged participants in the fight were negative for injuries and the anonymous notes and appellant's statements all confirmed he was attacked. That evidence was not refuted. Under these circumstances a self-defense claim was inapplicable.

Our determination as to the claim of self-dense, however, leads us to the conclusion that the evidence against appellant on the *.004 charge of fighting with another did not supply any support for the agency's decision. The evidence only established appellant was injured as a result of a beating by others. There was absolutely no evidence he engaged in a fight. We cannot conclude the evidence was even minimal, let alone "substantial," such that a reasonable person would conclude from it the appellant committed a *004 violation.

Reversed. The matter is remanded for vacating appellant's adjudication and sanctions. We do not retain jurisdiction.

1 In his brief to us, appellant explains that once a gang member "no longer wants to participate in the gang," and "denounces his affiliation he becomes 'food,' a term used when a member turns on their gang."