HAKEEM F. TOLIVER 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NOT FOR PUBLICATION WITHOUT THE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-4533-13T2

HAKEEM F. TOLIVER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________

November 23, 2015

Submitted November 16, 2015 Decided

Before Judges Sabatino and O'Connor.

On appeal from the New Jersey Department of Corrections.

Hakeem F. Toliver, appellant pro se.

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

PER CURIAM

Appellant Hakeem F. Toliver appeals from a final decision of the New Jersey Department of Corrections (DOC) that found he violated prohibited act *.203, possession of a drug not prescribed by the prison's medical staff, N.J.A.C. 10A:4-4.1(a), while he was incarcerated at Bayside State Prison. After carefully reviewing the record and the briefs, we affirm.

I.

According to a DOC incident report, on May 4, 2014, a senior corrections officer observed Toliver and another inmate exchange an object. When the officer questioned Toliver about the suspected transaction, he claimed he was buying a sandwich from the other inmate. The officer frisked Toliver and found a 25 mg capsule of Diphenhydramine, the active ingredient in Benadryl. A licensed nurse practitioner at the prison advised that Toliver had never been prescribed this drug in this specific dose. Toliver was charged with infraction *.203, possession of a drug not prescribed by the medical staff, N.J.A.C. 10A:4-4.1(a). Toliver pled not guilty and was assigned counsel substitute.

At the disciplinary hearing Toliver claimed that a nurse had given him two, 25 mg Diphenhydramine capsules, which he understood he could KOP ("keep on person"). Toliver was unable to recall the name of the nurse who gave him the two 25 mg capsules. He was offered but declined the opportunity to both call and confront any witnesses.

The hearing officer found Toliver had been prescribed a 50 mg but not 25 mg dose of Diphenhydramine, and, thus, was guilty of being in possession of a drug that had not been prescribed for him. Toliver was sanctioned to fifteen-days of detention, 180 days of administrative segregation, 180 days of loss of commutation time, and 180 days of urine monitoring.

Toliver filed an administrative appeal. On May 9, 2014, an assistant superintendent affirmed the hearing officer's decision.

II.

Defendant raises the following argument in support of his appeal

THE DECISION OF THE HEARING OFFICER VIOLATES DUE PROCESS AND THEREFORE SHOULD BE VACATED.

A. The Decision of the Hearing Officer Should be Vacated Because the Determination was not Based on Substantial Evidence That Appellant was in Possession of "Unauthorized Narcotics."

We are not persuaded by these arguments and affirm.

Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). Decisions of administrative agencies carry with them a presumption of reasonableness. Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

An appellate court may not reverse an agency's determination "even if [the] court may have reached a different result had it been the initial decision maker." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, a court "may not simply 'substitute its own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)). We generally will not disturb the Department's administrative decision to impose disciplinary sanctions upon an inmate, unless the inmate demonstrates that the decision is arbitrary, capricious or unreasonable, or that the record lacks substantial, credible evidence to support that decision. Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010); Jacobs v. Stephens, 139 N.J.212, 222 (1995).

Here, Toliver's guilt was based on sufficient evidence in the record. The hearing officer found Toliver had not been prescribed Diphenhydramine in a dose of 25 mg, but a 25 mg capsule of Diphenhydramine was found in his possession. Although Toliver claimed a nurse dispensed two 25 mg capsules, there was no evidence he had been prescribed this drug in this specific dose by the medical staff.

The record does not reveal a violation of appellant's due process rights. Further, because the decision of the administrative agency is supported by sufficient credible evidence in the record, we affirm. See Circus Liquors, supra, 199 N.J. at 9-10.

Affirmed.