BRUCE ANDERSON 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NOT FOR PUBLICATION WITHOUT THE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-0813-04T10813-04T1

BRUCE ANDERSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted December 14, 2005 - Decided May 5, 2006

Before Judges Parker and Grall.

On appeal from a Final Agency Decision of

the Department of Corrections.

Bruce Anderson, appellant pro se.

Peter C. Harvey, Attorney General of New

Jersey, attorney for respondent (Michael J.

Haas, Assistant Attorney General, of counsel;

Christopher C. Josephson, Deputy Attorney

General, on the brief).

PER CURIAM

Petitioner Bruce Anderson appeals from a final disciplinary decision by the Department of Corrections (DOC). We affirm.

Petitioner was charged with a violation of N.J.A.C. 10A:4-4.1(a)*.204, "use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff." Petitioner is serving a thirty-year term at Riverfront State Prison. On September 27, 2004, he tested positive for THC (marijuana) in a urine test. A hearing was initially scheduled for October 4, 2004, but was postponed so that the hearing officer could confer with the medical staff regarding medication petitioner was taking. On October 6, petitioner's request for counsel substitute was granted and he pled not guilty.

At the hearing, petitioner stated, "I've been locked up for 23 years and never gotten high." Counsel substitute stated, "There are medications that will test positive [for] THC." Petitioner was offered the opportunity to confront and cross-examine adverse witnesses, but he declined to do so. In considering the charge, the hearing officer noted petitioner's denial but found that the tests of the urine specimen were positive for THC and that there was no medical basis for the finding. Petitioner was sanctioned fifteen days in detention, 180 days administrative segregation, 180 days loss of commutation time, and permanent loss of all contact visits.

Petitioner administratively appealed and on October 8, 2004, the decision was upheld by the DOC and petitioner appealed. On April 1, 2005, however, the DOC moved for a remand to supplement the record with the basis for drug testing petitioner. We granted that motion and on June 15, 2005, a rehearing on the *.204 charge was conducted. At the rehearing, a special report was submitted explaining that on September 27, 2004, during a routine cell search, petitioner was observed "acting in a suspicious manner," and "appeared to be under the influence of CDS." Defendant was described as having "glassy eyes and slurred speech." On the basis of those observations, the urine test was taken.

At the rehearing, petitioner stated, "My defense is that I didn't get high. I haven't gotten high in over 20 years. I didn't use my medication as a defense." Counsel substitute stated, "Both reports were not presented at the initial hearing."

In considering the charge after the rehearing, the hearing officer indicated that the record was not only supplemented with the factual basis for the drug test, but with a medical report to clarify whether petitioner had been prescribed any medication that would have rendered a false positive result. The hearing officer made extensive findings of fact based upon the evidence submitted at the rehearing and concluded that petitioner was guilty of the charge and restated the sanctions which had been previously imposed.

In this appeal, petitioner has submitted three briefs. The first brief, filed January 11, 2005, argues:

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE IT IS BASED ON PROCEEDINGS THAT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS

In a brief filed July 11, 2005, after the rehearing, petitioner argues:

POINT ONE

REMAND FOR A FACTUAL BASIS TO BE PRODUCED AFTER THE INITIAL DISCIPLINARY HEARING VIOLATED APPELLANT'S DUE PROCESS RIGHTS ESTABLISHED THROUGHOUT THE U.S. CONST. AMEND FOURTEEN AND IN VIOLATION OF THE HOLDING IN WOLFF

POINT TWO

THE TWENTY FIVE HOUR AND FORTY FIVE MINUTE GAP BETWEEN THE URINE SPECIMEN'S REMOVAL FROM THE EVIDENCE REFRIGERATOR AND RECEPTION AT THE D.O.C. LABORATORY, COMPRISED THE INTEGRITY OF THE SAMPLE, AND THE LACK OF A REASONABLE FACTUAL BASIS VIOLATED ADMINISTRATIVE REGULATIONS AND APPELLANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS

POINT THREE

ACTING ADMINISTRATOR PARRISH'S DECISION ON THE ADMINISTRATIVE APPEAL FAILED TO ADDRESS THE MERITORIOUS ISSUES RAISED IN THIS APPEAL, AS THE DECISION WAS NOT BASED UPON SUBSTANTIAL CREDIBLE EVIDENCE AND REPLYING WITH A BOILERPLATE EXPLANATION, VIOLATED THE APPELLANT'S RIGHTS ANNOUNCED IN THE FOURTEENTH AMENDMENT

Finally, in a supplemental brief filed on October 6, 2005, petitioner argues that the hearing officer should not have considered the "additional reports which were created after the fact."

Unlike a criminal trial, a remand for a rehearing of a DOC disciplinary matter may be held and the record supplemented as it was here. R. 2:5-5. The evidence is extensive, both with respect to the reason why the urine test was administered and the results, including the medical report indicating that there was no medication which would have produced the positive urine test.

Our scope of review of an administrative decision is limited to a determination of whether there is sufficient credible evidence in the record to support the agency's determination. Clowes v. Terminix Int'l., Inc., 109 N.J. 575, 588 (1988). We have carefully considered the record in light of petitioner's arguments and the applicable law. We are satisfied that there is insufficient merit to petitioner's arguments to warrant discussion in a written decision and that the final decision of the DOC is supported by substantial credible evidence in the record, R. 2:11-3(e)(1)(D) and (E). We affirm substantially for the reasons stated in the decision rendered on June 17, 2005, after the rehearing.

Affirmed.

 

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A-0813-04T1

May 5, 2006