Preview:

a1626-08.opn.html

Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is .)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1626-08T11626-08T1 SHADIR HARRIS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

Submitted June 9, 2009 - Decided Before Judges Axelrad and Winkelstein. On appeal from a final decision of the New Jersey Department of Corrections. Shadir Harris, appellant pro se. Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief). PER CURIAM Appellant, Shadir Harris, is incarcerated at East Jersey State Prison in Rahway, serving a thirty-three-year sentence for aggravated manslaughter and unlawful possession of a weapon. He appeals from an October 6, 2008, decision of the Department of Corrections, finding him guilty of disciplinary infraction *.004, fighting with another person, in violation of N.J.A.C. 10A:4-4.1. The hearing officer imposed ten days detention, ninety-five days loss of commutation credit, ninety-five days administrative segregation, and fifteen days loss of recreation privileges. Following an administrative appeal, the Assistant Superintendent modified the hearing officer's decision, suspending the

file:///C|/Users/Peter/Desktop/Opinions/a1626-08.opn.html[4/20/2013 2:49:55 PM]

a1626-08.opn.html

sanctions for sixty days on the condition that if appellant remained charge-free for that period of time, he would not have to serve the sanction. On appeal, appellant claims that the hearing officer violated his due process rights and the hearing officer's decision was arbitrary and capricious. We reject appellant's arguments and affirm. While appellant was using a telephone adjacent to the cell of inmate Rivers on October 4, 2008, Rivers threw a punch at him. According to Corrections Officer Recruit J. Humphrey, appellant then grabbed Rivers' shirt and both men fell to the floor, where they exchanged punches with closed fists. Other corrections officers saw appellant on top of Rivers, striking him with his fists. After verbally commanding the inmates to stop, corrections officers separated them. Following the fight, appellant's gray sweatshirt had blood on the sleeve, and Rivers had abrasions on his head and knee, as well as a bent nail with minor bleeding. Our review of the Department of Corrections' decision is limited. Only when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). In a disciplinary proceeding while imprisoned, 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; a limited right to 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, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33. Here, all of the above requirements were met. Appellant was given twenty-four hours notice of the charge prior to the hearing; he received a hearing before an impartial tribunal; he was afforded a counsel substitute; and during the hearing, he and his counsel substitute were provided with an opportunity to make a statement. He was also offered and declined the opportunity to confront and cross-examine adverse witnesses. Appellant's claim of self-defense was properly rejected by the hearing officer. We are mindful that "a victim of a physical attack will instinctively respond to protect his/her person from harm," and "[Department of Corrections'] 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 Corrs., 386 N.J. Super. 631, 639 (App. Div. 2006). Nevertheless, in a prison setting, a claim of self-defense that involves the use of force among inmates may be demonstrated only when the following
file:///C|/Users/Peter/Desktop/Opinions/a1626-08.opn.html[4/20/2013 2:49:55 PM]

a1626-08.opn.html

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. 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).] Here, applying those factors, appellant's self-defense claim is without merit. Although Rivers started the fight, at no time did appellant attempt to avoid the use of force by retreat or by alerting the correctional staff. When corrections officers arrived, appellant was observed on top of Rivers, striking him with closed fists. The altercation required corrections officers to physically separate the inmates. Under these circumstances, the agency's decision that appellant's self-defense claim was without merit was neither arbitrary nor capricious. Affirmed.

(continued) (continued) 5 A-1626-08T1 June 22, 2009 0x01 graphic

This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a1626-08.opn.html[4/20/2013 2:49:55 PM]



Download a1626-08.opn.pdf

New Jersey Law