JUAN REYES 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NOT FOR PUBLICATION WITHOUT THE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-1241-07T31241-07T3

JUAN REYES,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted July 21, 2008 - Decided

Before Judges Graves and Yannotti.

On appeal from a Final Decision of the New Jersey Department of Corrections.

Juan Reyes, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Juan Reyes, an inmate in the State correctional system, appeals from a final determination of the Department of Corrections (DOC), which found him guilty of having committed a disciplinary infraction and imposed sanctions. For the reasons that follow, we affirm.

On September 24, 2007, Lieutenant Bonilla, a corrections officer at East Jersey State Prison (EJSP), found a folded-up piece of paper near the door of the dayroom. The paper read, "2up, 68, 69, 67, 66, 65 Heroin." The note also stated, "43 [and] 46 High." After reading the note, Bonilla ordered Sergeant Valentin to have the inmates in the cells that were identified in the note "frisked and urined." Correction officers Kermendy, Odgers, Cabrera, and Granato conducted the search under Valentin's supervision.

Appellant was ordered to submit a urine specimen. The initial on-site test was positive for tetrahydrocannabinol and opiates. On September 25, 2007, the sample was sent to the State Department of Health, which confirmed the initial test results. The EJSP disciplinary unit received the test results on October 3, 2007.

On October 4, 2007, appellant was charged with violating N.J.A.C. 10A:4-4.1(a), *204, which proscribes the use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff. Sergeant Solsky served the charge on appellant and investigated the matter. He found that the charge had merit and referred the matter to a hearing officer for further action.

After having conducted a hearing, in which appellant was afforded the opportunity to confront officers Valentin, Cabrera and Odgers, the hearing officer found appellant guilty of the charge. The hearing officer imposed the following sanctions: fifteen days of detention, permanent loss of contact visits, the loss of 365 days of commutation credits, and urine monitoring for 365 days. The hearing officer also referred the matter to the classification committee for a possible transfer to administration segregation at New Jersey State Prison.

On October 22, 2007, appellant filed an administrative appeal. On October 23, 2007, Assistant Superintendent La Forgia upheld the hearing officer's determination. This appeal followed.

Appellant argues that the DOC's finding of guilt was not supported by substantial evidence. He maintains that his right to due process was violated because "substantial errors" were made in the urine testing process.

The standard of review that applies in this case is well established. When reviewing a final decision of the DOC in a prisoner disciplinary matter, we consider whether there is substantial evidence to support the finding that the inmate committed the prohibited act and whether, in making its decision, the DOC followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995). Applying that standard of review, we are convinced that the Department's decision must be affirmed.

Appellant first argues that the correction officers at EJSP did not have grounds to order him to provide a urine sample. We disagree. N.J.A.C. 10A:3-5.10(b)(6) provides that inmates shall be tested:

[w]hen a custody staff member of the rank of Sergeant or above or a Special Investigations Division Investigator believes, based upon his or her education and experience, that there is a reasonable factual basis to suspect the inmate of using or possessing a non-alcoholic prohibited substance[.]

As stated previously, Bonilla reported that he found a folded-up piece of paper in a dayroom of the prison, which referred to certain cells and mentioned "heroin." It is undisputed that appellant was assigned to one of the cells identified in the note. As the hearing officer found, the note provided a reasonable basis to suspect that appellant was using prohibited drugs.

Appellant argues that the note was fabricated. However, appellant provided no evidence to support that assertion. Appellant also argues that the search of his cell was "unproductive." That may be so, but the results of the search have no bearing on whether Bonilla had a reasonable factual basis to suspect that appellant was using a prohibited substance. We therefore conclude that Bonilla had a reasonable factual basis to order appellant to provide a urine sample.

Appellant also argues that the DOC failed to comply with the prescribed protocol for collecting urine samples, thereby rendering the results of the tests invalid. Appellant asserts that portions of the continuity of evidence (COE) forms for all of the inmates tested were completed before the samples were taken. Appellant argues that this indicates that the results of the tests were predetermined. The DOC does not dispute that the officers completed some sections of the forms before the tests but, as the DOC correctly points out, this does not support appellant's contention that the results of the tests were predetermined or invalid.

Appellant additionally asserts that the COE form fails to mention that Cabrera participated in the urine testing. Appellant notes that Cabrera signed a form which states that the inmate is required to provide a specified amount of urine and could be punished for refusing to comply. However, Cabrera's signature on that form merely indicates that he gave appellant a copy of the form. It is not proof that Cabrera actually participated in the collection of the urine samples.

Moreover, in responding to the written questions posed by appellant for purposes of confrontation, Cabrera denied that he assisted in the testing process. In their answers to appellant's questions, Valentin and Odgers stated that Cabrera was not involved in the process. Thus, there is no support in the record for appellant's contention that Cabrera participated directly in the tests.

Appellant additionally argues that the tests were flawed because voided samples from defective cups were transferred to other test cups. Appellant asserts that, as a consequence, there was a substantial likelihood of cross-contamination of the samples. However, Valentin and Odgers denied that any such transfers of voided samples occurred.

Appellant also maintains that the officers' statements were not worthy of belief. The hearing officer found the statements to be credible. In our view, the officers' statements provided ample support for the hearing officer's finding that Odgers did not do "anything wrong regarding the urine samples."

Affirmed.

 

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A-1241-07T3

August 1, 2008