EURIE NUNLEY 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NOT FOR PUBLICATION WITHOUT THE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-0

EURIE NUNLEY,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

____________________________________

February 11, 2015

Submitted January 21, 2015 Decided

Before Judges Fisher and Nugent.

On appeal from the New Jersey Department of Corrections.

Eurie Nunley, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Megan E. Shafranski, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Eurie Nunley, an inmate serving a fourteen-year custodial term at South Woods State Prison (SWSP) at the time of these events, appeals from the final decision of the Department of Corrections (DOC) that he committed 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; and prohibited act *258, refusing to submit to testing for prohibited substances. For each of those prohibited acts, appellant received the following sanctions: fifteen days of detention; 365 days of administrative segregation; 365 days of loss of commutation time; 365 days of urine monitoring; and permanent loss of contact visits. We affirm.

On September 16, 2013, Investigator Achinko of the Special Investigation Division (SID) requested that two inmates, appellant and his cellmate, be searched and urine tested. Lieutenant Nardelli and two other officers removed appellant from his cell and escorted him to a holding cell. After strip-searching appellant, Lieutenant Nardelli discovered a small blue balloon hidden in the left sleeve cuff of appellant's sweatshirt. Lieutenant Nardelli delivered the balloon to SID, where Investigator Gunn tested its contents and discovered it tested positive for marijuana.

Both appellant and his cellmate were ordered to provide a urine sample. Sergeant Charlesworth assigned Officer D'Amico to monitor appellant. Officer D'Amico reported that he observed appellant urinating in the holding cell toilet. Appellant refused to stop urinating when ordered to do so by Officer D'Amico. Appellant told the officer that "he would not give a sample without plenty of water to drink so he could 'flush' his urine."

The next day, appellant was served with disciplinary charges for prohibited acts *.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, and *.259, failure to comply with an order to submit a specimen for prohibited substance testing.

The disciplinary hearing took place from September 18, 2013 to September 23, 2013, with several postponements because appellant requested witness statements, confrontation with the officers, and a polygraph. Appellant pled not guilty and was granted the assistance of counsel substitute. In accordance with N.J.A.C. 10A:4-9.16(a), the hearing officer modified the *.259 charge to a *.258 charge because "it bec[ame] apparent . . . that an incorrect prohibited act [wa]s cited in the disciplinary report but that [appellant] may have committed another prohibited act."

SWSP Administrator Kenneth Nelsen denied appellant's request for a polygraph because there were no issues of credibility and no findings of new evidence. Appellant was granted confrontation with Lieutenant Nardelli, Sergeant Charlesworth, and Officer D'Amico and in his defense, appellant submitted a written statement and a witness statement from another inmate.

Based on the hearing officer's examination of the evidence, including the officers' reports, the SID narcotics field test, and the officers' "confrontation" testimony, the hearing officer found appellant guilty of both the *.203 and *.258 charges. The hearing officer determined that the evidence showed the blue color balloon in appellant's sleeve tested positive for marijuana and appellant provided no evidence to support his defense. Further, the hearing officer, based on the participating and investigating officers' reports and Officer D'Amico's observations, found appellant "blatantly [dis]regarded order and urinated in cup to 'flush' in system." The DOC upheld the hearing officer's findings and imposition of sanctions, which are noted above. This appeal followed. Appellant raises the following points for our consideration

POINT I

THE FINAL ADMINISTRATIVE DECISION UPHOLDING A FINDING OF GUILT FOR THE COMMISSION OF PROHIBITED ACT *.258 MUST BE REVERSED AND VACATED FOR THE AMBIGUOUS NATURE OF N.J.A.C. 10A3-5.11

POINT II

THE FINAL ADMINISTRATIVE DECISION UPHOLDING A FIND OF GUILT FOR THE COMMISSION OF PROHIBITED ACT *.203 MUST BE REVERSED AND VACATED FOR LACK OF SUBSTANTIAL EVIDENCE SINCE THERE IS NO INDEPENDENT EVIDENCE OUTSIDE THAT WHICH POSED ISSUES OF CREDIBILITY

POINT III

THE FAILURE TO PRESENT PHYSICAL EVIDENCE AND ADHERE TO N.J.A.C. 10A4-9.5(E) INVESTIGATION DEPRIVES APPELLANT OF DUE PROCESS RIGHTS

POINT IV

THE FINAL ADMINISTRATIVE DECISION TO UPHOLD A FINDING OF GUILT FOR COMMISSION OF PROHIBITED ACTS *.203 AND *.258 MUST BE REVERSED AND VACATED DUE TO THE UNDECIPHERABILITY OF HEARING OFFICERS' REFUSAL TO RESPOND TO RATIONAL ARGUMENTS PRESENTED BY THE APPELLANT

POINT V

FINAL ADMINISTRATIVE DECISION MUST BE REVERSED FOR ADMINISTRATIVE FAILURE TO ADHERE TO N.J.A.C. 10A4-11.4 INVESTIGATION OF APPEAL

POINT VI

THE FINAL ADMINISTRATIVE DECISION TO UPHOLD A FINDING OF GUILT FOR COMMISSION OF PROHIBITED ACTS *.258/*.203 MUST BE REVERSED AND VACATED FOR VIOLATION OF N.J.A.C. 10A4-9.13(E) AND 10A4-9.14(A)

In his reply brief, appellant raises the following points

POINT I

RESPONDENT'S BRIEF LACKS MERIT AND FAILS TO OPPOSE POINT III OF APPELLANT BRIEF; FAILURE TO PRESENT PHYSICAL EVIDENCE AND ADHERE TO N.J.A.C. 10A4-9.5(E) INVESTIGATION, DEPRIVES APPELLANT OF DUE PROCESS RIGHTS

POINT II

INEFFECTIVE ASSISTANCE OF COUNSEL

Having considered appellant's arguments in light of the record and controlling law, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The DOC's decision is supported by sufficient credible evidence on the record as a whole, R. 2:11-3(e)(1)(D), and is not arbitrary, capricious, or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). Appellant was afforded the process due an inmate in disciplinary proceedings. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Avant v. Clifford, 67 N.J. 496, 522-33 (1975).

Affirmed.