MAHENDER TULASIRAM 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NOT FOR PUBLICATION WITHOUT THE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-01274-12T2

MAHENDER TULASIRAM,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________________________________________

November 14, 2013

Submitted November 6, 2013 Decided

Before Judges Koblitz and O'Connor.

On appeal from the New Jersey Department of Corrections.

Mahender Tulasiram, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Mahender Tulasiram is serving a five-year sentence with a three-year mandatory-minimum term at Northern State Prison for a conviction of terroristic threats and weapons offenses. He appeals the October 17, 2012 final decision of the Department of Corrections finding him guilty of prohibited act *.203, possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff. N.J.A.C. 10A:4-4.1(a). He was sanctioned to ten days detention, permanent loss of contact visits, 365 days of urine monitoring, 365 days of administrative segregation, suspended for sixty days1, and a loss of 300 days of commutation time.

On October 2, 2012, sixteen pink and brown pills were found in Tulasiram's footlocker. He was charged and two days later was afforded a counsel-substitute and admitted the charge, stating "[I]t was penicillin.[2] I got it from someone for pain. I hurt my hand." On appeal, Tulasiram states that he cut his leg3, it became infected and the medical staff at the prison refused to treat him, so he resorted to self-help by obtaining antibiotics from another inmate. He acknowledges that he was seen by two nurses and a doctor, but claims the treatment was insufficient. After the hearing officer imposed sanctions, Tulasiram filed an administrative appeal and the decision was upheld.

The Department has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited protections. Id. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff of the prison, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, the assistance of a counsel-substitute, and a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995); Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995). Tulasiram was afforded these rights.

For the first time on appeal before us, Tulasiram argues that he did not receive a copy of the rules and regulations of the institution as required upon admission to the prison system by N.J.A.C. 10A:4-2.1(a). As this argument was not put forward in his administrative appeal, we do not consider it now. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We note that a prohibition against possession of a prescription drug without a prescription in a penal institution is a common-sense rule that an inmate could be expected to know.

The relevant standard of review is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole[.]" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted). N.J.A.C. 10A:4-9.15(a) provides that "a finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." Tulasiram admitted the possession of the pills found in his locker, providing substantial evidence of his guilt.

1 The effect of suspending a sanction for sixty days is the inmate does not have to serve that portion of the sanction if he remains free of disciplinary charges for sixty days.

2 No evidence was presented that a laboratory analysis was done to confirm the nature of the pills in his possession.

3 The Department notes that at his hearing the inmate stated that he hurt his hand and not his leg.