MICHAEL MARTINEAU v. 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NOT FOR PUBLICATION WITHOUT THE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-2735-06T22735-06T2

MICHAEL MARTINEAU,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________

 

Submitted August 7, 2007 - Decided

Before Judges Sabatino and Baxter.

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

Michael Martineau, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Michael Martineau, a State prisoner, appeals a final agency decision of the Department of Corrections ("the Department") imposing discipline upon him for failing to comply with an order to submit a urine specimen, contrary to N.J.A.C. 10A:4-4.1*259. Martineau alleges that there is insufficient evidence in the record to support the failure-to-submit charge, that he was denied administrative due process, and that the Department misapplied the sanction issued by the hearing officer. We affirm.

Martineau is serving a State prison term as a consequence of his conviction in 2004 for the distribution of a controlled dangerous substances ("CDS"). The underlying incident concerned Martineau's transfer to South Woods State Prison ("South Woods") on July 29, 2006. At about 11:00 p.m. the previous evening, July 28, Martineau was found non-responsive at Kintock House, a halfway house where he was then enrolled. An ambulance transported Martineau to the South Jersey Regional Medical Center, where he was revived and treated. During the course of his treatment at the hospital, Martineau was attached to a catheter.

At about 4:00 a.m. on July 29, Martineau was released from the hospital and taken to South Woods. He was examined there by a nurse, who made a note that he was "[a]wake," and that he "denies any pain, bruises or other injuries." As part of the standard protocol for inmates returning from a halfway house, Martineau was ordered by a sergeant at South Woods to provide a urine specimen. It is undisputed that Martineau failed to produce a urine specimen, as he was ordered, within the two hours allotted for that purpose.

Consequently, Martineau was charged with asterisked offense *258, i.e., refusal to submit to testing for prohibited substances. That initial charge was later clerically amended, as is permitted by N.J.A.C. 10A:4-9.16, to allege a violation of asterisked offense *259, i.e., failure to comply with an order to submit a specimen for prohibited substance testing. After being served with the charges, Martineau pled not guilty, maintaining that he did not recall being asked to provide a specimen at South Woods.

At the ensuing disciplinary hearing, the Department relied upon a statement from the sergeant who had asked Martineau to provide a sample, as well as associated medical reports. In his defense at the hearing, Martineau stated that "I fell out. The next thing I know, I woke up at [South Woods]. I wouldn't refuse to give a urine." Martineau declined the opportunity to present any other witnesses or to cross-examine the sergeant or the authors of the medical records.

The hearing officer concluded from the evidence that Martineau was guilty of the failure-to-submit violation. His decision particularly noted the nurse's recorded observation that Martineau was "awake and alert" when he arrived at South Woods, which was contrary to Martineau's assertion that he had been asleep and did not recall being asked to provide a urine sample.

The hearing officer recommended sanctions of fifteen days detention, 185 days of lost commutation credits, 185 days of administrative segregation, permanent loss of contact visits and 365 days of urine monitoring. The officer recommended that the detention component be suspended for sixty days.

After Martineau filed an administrative appeal, an administrator with the Department upheld the finding of guilt but reduced the loss of commutation time from 185 days to 120 days, subject to Martineau successfully remaining infraction-free for sixty days. Martineau then appealed that decision to this court.

We have examined the record as a whole and have considered the various issues raised by Martineau, and are satisfied that the discipline was properly imposed upon him.

First, we discern no procedural infirmity in the investigation of the charges or in the hearing itself. The administrative procedures here adhered fully to the modified due-process standards of Avant v. Clifford, 67 N.J. 496, 522 (1975); see also McDonald v. Pinchak, 139 N.J. 188 (1995). The Department did not fail to interview any critical witnesses in this relatively-simple case. It offered Martineau ample opportunities for cross-examination and to present witnesses of his own, which he declined. The charges, once corrected to cite to the proper numerical regulation, were fairly presented in written form to Martineau, and he had the assistance of counsel-substitute at the hearing.

Second, there is clearly substantial credible evidence to support the finding of guilt. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The Department has legitimate institutional reasons to request drug screens, as a matter of course, from inmates who have returned to confinement from the less secure environs of a halfway house. See N.J.A.C. 10A:3-5.10(9). Moreover, even if that were not the routine practice, ordering a drug screen from Martineau, who is serving time for a CDS conviction, is readily justifiable in these circumstances on an individual basis.

Martineau concedes that he indeed failed to provide a urine specimen within two hours, as ordered by the sergeant. However, he has suggested, in various and somewhat inconsistent ways, that his attachment to a catheter at the hospital somehow excuses his failure to provide the sample.

At one point in the administrative proceedings, Martineau asserted that the catheter had interfered with his ability to urinate freely into a sample jar. That argument is invalid, because the sample was requested at South Woods, not at the hospital, which presumably removed the catheter before discharging him.

Subsequently on this appeal, Martineau has argued that the Department should have taken some of his urine from the collection bag while he was on the catheter, rather than later at the prison, because the catheter allegedly left him in a painful and swollen condition. But that assertion is not borne out by the medical records, which specifically note that Martineau was not observed in any pain. The assertion is also inconsistent with Martineau's contention at the hearing that he had no recollection whatsoever of being asked for a sample.

Lastly, with respect to sanctions, we are satisfied that the Department has properly interpreted and applied the prison administrator's final decision. Pursuant to the clear terms of the pertinent documents, Martineau's successful completion of the suspension period operated to reduce his loss of commutation credits to 120 days, not, as Martineau argues, from 120 days to 60 days.

Affirmed.

 

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A-2735-06T2

August 15, 2007