STANLEY SMITH 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NOT FOR PUBLICATION WITHOUT THE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-5102-07T25102-07T2

STANLEY SMITH, a/k/a

KEVIN HARMON, a/k/a

DERRICK JOHNSON, a/k/a

JERRY JOHNSON, a/k/a

STANLEY NEAL, a/k/a

DERRICK SMITH,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted March 1, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the New Jersey Department of Corrections.

Stanley Smith, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Stanley Smith (Smith), is an inmate incarcerated in New Jersey State Prison (NJSP). Smith appeals from a final determination of the Department of Corrections (DOC), finding him guilty of prohibited act *.204, use of any narcotics, drugs or intoxicants, contrary to N.J.A.C. 10A:4-4.1(a). We affirm.

This appeal arises from the following facts. On March 16, 2008, a corrections officer observed a visitor hand Smith what appeared to be contraband. Corrections officers escorted Smith from the visit hall to the clinic, where he was strip searched. An officer observed what appeared to be a white object in Smith's rectal cavity. Smith was ordered to remove the object but he refused. Smith pushed the object further into his rectal cavity.

Smith was placed in an isolation cell. He was ordered to void a urine specimen. The sample was negative for prohibited substances. On March 24, 2008, Smith was released from the isolation cell. The suspected contraband had not been recovered. Smith was ordered to void another urine specimen. It tested positive for tetrahydrocannabinol (THC), a substance found in marijuana.

On April 21, 2008, Smith was charged with committing prohibited act *.204 and placed in pre-hearing detention. The charge was investigated. Smith pled not guilty. The investigating officer found that the charge had merit and referred the matter for a hearing.

The hearing was scheduled to take place on April 23, 2008. Smith maintained that he had been required to void urine samples several times. The hearing was adjourned to April 25, 2008 so that the hearing officer could obtain documentation regarding the samples. After further adjournments, the hearing took place on May 5, 2008.

Smith again pled not guilty. He made a request for the assistance of counsel substitute, which was granted. Counsel substitute asserted that defendant had been directed to provide three urine samples. He maintained that the DOC did not have grounds to order him to void a sample on March 24, 2008.

The hearing officer found Smith guilty of committing the prohibited act. In his report, the hearing officer stated that the record indicated that on March 16, 2008, the corrections officers observed Smith receiving suspected contraband from a female visitor during a contact visit. A strip search revealed a white object at the edge of his anal cavity, and Smith had refused an order to surrender the item.

The hearing officer stated that the corrections officers' reports also indicated that Smith had been

able to place the object further inside the cavity during the incident. As a result of the inmate's actions he was escorted to the infirmary and placed in an isolation cell. The record reflects that the inmate did void a urine sample on 3/16/08 and that sample returned a negative reading for CDS [controlled dangerous substance]. The records do not reflect a second urine sample on 3/17/08. Since the suspected contraband had not been recovered the inmate was released from isolation on 3/24/08 and ordered to void a second sample. The sample returned a positive reading for the use of THC.

The hearing officer also stated that, because the suspected contraband had not been recovered, and Smith had not been on constant watch status while he was in the isolation cell, it was reasonable for the corrections officers to assume that he had ingested the contraband. The hearing officer noted that the custody staff had not been able to obtain approval for a anal cavity search. The hearing officer found that the corrections officers had reasonable suspicion that Smith was either in possession of or had used a prohibited substance and therefore were authorized to order Smith to provide the urine samples.

The hearing officer imposed the following sanctions: 180 days of administrative segregation and the loss of 180 days of commutation time, permanent loss of contact visit, and urine monitoring. The hearing officer directed that, if Smith remained sanction-free for sixty days, he would not have to serve the time in administrative segregation or lose the commutation time. Smith filed an administrative appeal from the hearing officer's decision. On May 15, 2008, the Assistant Superintendent of NJSP affirmed the hearing officer's decision. This appeal followed.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Twp. of Middletown, 199 N.J. 1, 9 (2009). We must uphold the administrative agency's decision unless there is a "'clear showing' that [the decision] is arbitrary, capricious, or unreasonable" or "lacks fair support in the record[.]" Ibid. Furthermore, when reviewing a determination of the DOC in a prisoner disciplinary matter, we must determine whether there is substantial evidence that the inmate has 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, 193-195 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).

We are convinced that there is sufficient credible evidence in the record to support the DOC's final determination. As noted previously, the urine sample that Smith provided on March 24, 2008, tested positive for THC. The positive test provided substantial evidence that Smith had secreted a prohibited substance following the contact visit on March 16, 2008, and thereafter was able to ingest the substance in order to avoid its discovery.

Smith argues, however, that the charge should have been dismissed because he was ordered to void urine samples three times for the same "incident[.]" We disagree. Certain custody staff members and investigators may order an inmate to submit a urine sample if "there is a reasonable factual basis to suspect the inmate of using or possessing a non-alcoholic prohibited substance[.]" N.J.A.C. 10A:3-5.10(a)(6). As the hearing officer found, the record does not support Smith's contention that he was ordered to submit three urine samples. However, even if that were the case, the officers were authorized to order Smith to provide the samples because they had a "reasonable factual basis" to suspect that he was "using or possessing" a prohibited substance.

Smith also argues that the DOC kept him in an isolation cell for a longer period of time that is permitted by N.J.A.C. 10A:5-7.1(a). The regulation states that

[a]n inmate may be placed in temporary close custody for a period not to exceed 72 hours unless exceptional circumstances, such as, but not limited to, other information received or other substantial evidence found warrant extension of this time period.

Here, the record shows that Smith was placed in isolation after he had been observed secreting suspected contraband on his person. Because the object had not been recovered within the time permitted by the regulation, exceptional circumstances existed to continue Smith's placement in temporary close custody. Under the circumstances, Smith's placement in the isolation cell for eight days was not unreasonable.

We have considered Smith's other contentions and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

(continued)

(continued)

7

A-5102-07T2

March 19, 2010