RAMEL WALKER 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NOT FOR PUBLICATION WITHOUT THE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-4279-09T1

RAMEL WALKER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

October 20, 2011

Submitted July 12, 2011 - Decided

Before Judges R.B. Coleman and

Sapp-Peterson.

On appeal from the Department of Corrections.

Ramel Walker, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; James R. Michael, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Inmate Ramel Walker was charged with violating prohibited act *.203,1 possession or introduction of prohibited substances, specifically, drugs not prescribed by the medical staff. N.J.A.C. 10A:4-4.1. At a disciplinary hearing, where he had the assistance of counsel substitute, he declined the offer to present witnesses and pled guilty to the charge. In his statement, he indicated that he took the medication from his cellmate. The hearing officer imposed a ten-day detention, permanent loss of contact visits, 365 days of urine monitoring, a 285-day loss of commutation credit, 285 days of administrative segregation, and a thirty-five-day loss of recreation privileges.

Walker filed an administrative appeal claiming that he could not be found guilty of the charge because he was not in possession of a narcotic or controlled dangerous substance. The assistant superintendent rejected this contention and upheld the guilty finding and the sanctions imposed. The present appeal followed.

On appeal, Walker contends the hearing officer violated his due process rights. Specifically, Walker urges that since the medications he possessed were not "prohibited substance[s]," there was insufficient evidence to support the hearing officer's findings. He additionally contends the sanctions imposed were inapplicable to the specific facts of the case.

Having thoroughly reviewed the record, we are satisfied that the final decision of the administrator is supported by sufficient credible evidence in the record, Rule 2:11-3(e)(1)(D), and that Walker was afforded the process he was due. McDonald v. Pinchak, 139 N.J. 188, 202-03 (1995); Jacobs v. Stephens, 139 N.J. 212, 222 (1995); Avant v. Clifford, 67 N.J. 496, 522 (1975). Moreover, we reject Walker's narrow interpretation of *.203. The prohibition against possessing prohibited substances is directed at any individual charged with the infraction to whom a prescription for the particular drug has not been issued and who is found in possession of the prohibited substance. Thus, Walker's claim that it "is of no moment" that the medication was not prescribed to him, as long as it was prescribed for anyone by the medical staff, lacks merit. N.J.A.C. 10A:1-2.2 treats as contraband any medication possessed by an inmate, which has not been prescribed for that inmate. There is no dispute that Walker possessed medication which had not been prescribed for him.

We also find no merit in Walker's contention that since the medication was not a controlled dangerous substance, there was an insufficient basis to uphold the charge. We agree with the argument advanced by the Department of Corrections that if it intended to limit application of *.203 violations to illegal drugs, it would have plainly indicated this, as is evidenced by disciplinary infraction *.551, which prohibits making "prohibited substances such as narcotics and controlled dangerous substances."

Our scope of review of administrative decisions is quite limited. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are not to substitute our judgment for that of the agency. Brady v. Dep't of Pers., 149 N.J. 244, 264 (1997). Nor do we substitute our fact-finding for that of the agency. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide of the mark as to be manifestly mistaken." Ibid.

Judged by these standards, we are satisfied there is substantial credible evidence in the record to support the agency decision and discern no basis for our intervention.

A

1 Department of Corrections inmate disciplinary regulations classify "[a]sterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1. See also Hetsberger v. Dep't of Corrections, 395 N.J. Super. 548, 556 (App. Div. 2007).