FERNANDO ROSARIO v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0924-04T20924-04T2

FERNANDO ROSARIO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

__________________________________________

 

Submitted December 14, 2005 - Decided January 20, 2006

Before Judges Parker and Grall.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Fernando Rosario, appellant pro se.

Peter C. Harvey, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Walter Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Fernando Rosario, an inmate at Southern State Correctional Facility, appeals from a final decision of the Department of Corrections finding him guilty of committing prohibited act *.204, use of prohibited substances not prescribed, contrary to N.J.A.C. 10A:4-4.1. The discipline imposed was fifteen days detention, one-hundred eighty days of administrative segregation and loss of one-hundred eighty days of commutation credits. After the parties filed briefs on appeal, the Department moved for a remand to supplement the record. We granted that motion, and the Department conducted a second hearing. At that hearing Rosario, who appeared with the assistance of substitute counsel, waived his right to confront witnesses and entered a plea of guilty. Neither party filed a supplemental brief following the remand.

Rosario's contentions on appeal are that he was deprived of due process because he was directed to submit to a drug test that was not based on reasonable suspicion, contrary to N.J.A.C. 10A:3-5.10(b)6, and because the Department's reasons for directing him to submit to the test were not recorded on the "continuity of evidence" form, as required pursuant to N.J.A.C. 10A:3-5.11(e). We conclude that any deviation from the Department's regulations was technical and Rosario, who was afforded all process due at the hearing on remand, has not established prejudice affecting a fundamental right. Jacobs v. Stephens, 139 N.J. 212, 219-20 (1995).

On remand, the Department introduced the results of Rosario's drug test and the written reports of the officers who requested, ordered and collected Rosario's urine samples for drug testing. The record discloses the following. On September 14, 2004, an officer saw Rosario's cellmate accept an object from another inmate. As the officer approached, Rosario's cellmate threw a plastic box into a trash bin. The box contained three hand-rolled cigarettes and a sheet of paper that was folded and taped shut. This makeshift paper container held a white powdery substance.

The incident was reported, and a corrections officer holding the rank of lieutenant authorized drug tests of four inmates -- the two inmates involved in the transfer of the plastic box and the two inmates who shared their cells. The inmates provided urine samples on September 14, 2004. Because those samples were not properly labeled, second samples were collected and the drug tests were repeated on September 15, 2004. Rosario's urine tested positive for opiates.

At the hearing on remand, Rosario waived his right to confront the officers whose reports were filed. Instead, he entered a plea of guilty.

The evidence presented amply supports the Department's decision. The drug test was positive for opiates, and Rosario plead guilty to the charge on remand. R. 2:11-3(e)(1)(D).

Despite Rosario's plea of guilty on remand, we assume that he has not withdrawn his claim that he was deprived of due process because the Department did not follow its regulations on drug tests. After considering the record in light of his claims, we find that the arguments lack sufficient merit to warrant extended discussion in a written decision and affirm with a brief explanation for that conclusion. R. 2:11-3(e)(1)(E).

While we agree with Rosario that there were deviations from the Department's regulation setting forth the circumstances under which a drug test will be performed and the information that must be recorded on the Department's "continuity of evidence" form, we conclude that the deviations were technical, did not impact upon Rosario's fundamental rights or deprive him of the process due in his prison disciplinary proceeding and do not reflect an arbitrary exercise or abuse of administrative authority. Avant v. Clifford, 67 N.J. 496, 520 (1975); see Jacobs, supra, 139 N.J. at 219-20 (harmless error analysis is appropriate where there is technical non-compliance and no fundamental unfairness in the execution of prison disciplinary policies and procedures).

Rosario first contends that his drug test was ordered without the reasonable suspicion required by N.J.A.C. 10A:3-5.10(b)6. The regulation provides that inmates shall be tested:

When a custody staff member of the rank of Sergeant or above or a Special Investigations Division Investigator believes, based upon his or her education and experience, that there is a reasonable factual basis to suspect the inmate of using or possessing a non-alcoholic prohibited substance . . . .

We agree with Rosario's contention that this regulation requires a showing comparable to "reasonable suspicion" of use or possession of illegal drugs by the inmate to be tested. We also agree that the facts included in this record fall short of establishing reasonable suspicion of Rosario's use or possession. The record does not indicate whether the transaction took place in his cell or elsewhere in the prison, and the record is devoid of any evidence that either Rosario or his cellmate had access to illegal drugs prior to the transfer.

Rosario's argument fails, however, because it overlooks additional paragraphs of the Department's regulation that authorize testing without reasonable suspicion. N.J.A.C. 10A:3-5.10 provides for drug testing in prisons as follows:

(a) Testing for prohibited substances may be conducted for the purpose of deterring and controlling the introduction of contraband or to detect the presence of any substance not authorized for possession or use by the inmate.

(b) Inmates shall be tested:

1. When the name of the inmate appears on a computer-generated randomly selected list of names, regardless of how often the name of the inmate is randomly selected;

2. Prior to commencing participation in any unsupervised community release program such as, but not limited to, furlough or work release;

3. During the 72 hour period prior to an inmate's release from custody on parole;

4. During the 10 calendar days prior to the inmate's release from custody on expiration of maximum sentence;

5. In accordance with drug treatment program requirements;

6. When a custody staff member of the rank of Sergeant or above or a Special Investigations Division Investigator believes, based upon his or her education and experience, that there is a reasonable factual basis to suspect the inmate of using or possessing a non-alcoholic prohibited substance;

7. When a supervising staff member or a licensed medical staff persons in a residential contract facility and/or other community residential facility utilizing non-custody staff believes based upon his or her education and experience that there is a reasonable factual basis to suspect the inmate of using or possessing a non-alcoholic prohibited substance;

8. When the Administrator, Associate Administrator, Assistant Superintendent or the Director of Custody Operations orders all inmates of a particular housing unit, work detail or other functional unit to be tested;

9. When a custody staff member of the rank of Sergeant or above orders testing upon any inmate's return from furlough or other unsupervised temporary release from custody; or

10. When a Disciplinary Hearing Officer/Adjustment Committee orders testing as part of a sanction for a prohibited substance related infraction.

(c) An inmate's refusal to submit to testing, or failure to comply with an order to submit a specimen shall result in disciplinary action in accordance with N.J.A.C. 10A:4.

(d) When an inmate is scheduled for release on parole and either the initial test result is positive, or the inmate refuses to submit to testing, or the inmate fails to comply with an order to submit a specimen, the initial positive test result or documentation of the inmate's refusal to provide or failure to comply shall be forwarded to the New Jersey State Parole Board. If an inmate scheduled for release on parole receives a disciplinary charge(s) based upon either positive test results, or refusal to be tested or a failure to comply with an order to submit a specimen, the disciplinary adjudication result(s) shall be forwarded to the New Jersey State Parole Board.

Review of this regulation demonstrates that only paragraph (b)6 requires individualized suspicion. The remainder of the regulation details circumstances under which testing may be authorized without such suspicion. The exception provided in paragraph b(8) clearly authorizes testing when there is reasonable suspicion of drug use that cannot be focused on an individual but is focused on a unit of the prison. Under that circumstance, the Commissioner has determined that institutional needs may require drug testing of "all inmates of a particular housing unit" and permitted a limited group of prison officials to authorize such tests.

The record in this case demonstrates that Rosario was tested because he was a cellmate of an inmate found with what was believed to be a controlled dangerous substance. The test was based on facts related to Rosario's cellmate whose conduct raised suspicion about the presence of drugs within the housing unit. Two inmates were involved in an intra-prison transfer of drugs and those inmates and their cellmates were tested. So considered, the order for Rosario's testing was consistent with the standards set by the Commissioner, and Rosario had notice of those standards.

It is not apparent to us that the lieutenant who authorized this test of a housing unit had the authority to do so. Under the regulation, such tests may be directed by the prison Administrator, Associate Administrator, Assistant Superintendent or the Director of Custody Operations. Ibid. The officer who directed Rosario's test was a lieutenant, whose authority to order drug testing is limited to tests based upon reasonable, individualized suspicion pursuant to paragraph (b)(6).

Nonetheless, we consider the lieutenant's failure to obtain approval of a designated superior to be a technical deviation that, on the facts of this case, was neither capable of prejudicing a substantial right nor indicative of an abuse of administrative authority. The basis for the decision to test Rosario is apparent. He and one other inmate were directed to submit to a test because they each shared a cell with an inmate in possession of drugs. Thus, the decision to test was based upon articulable facts sufficient to dispel any concern about arbitrariness, caprice or harassment. See Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 191 (1993) (noting that a purpose of reasonable suspicion "is to prevent random or arbitrary intrusions") (citations omitted).

Rosario also contends that the Department failed to comply with N.J.A.C. 10A:3-5.11(e). That regulation provides: "Each time a specimen is collected for the reasons stated in N.J.A.C. 10A:3-5.10, a continuity of evidence form shall be completed and maintained with the specimen." The form includes a heading entitled "Reason for request." In this case, the officer entered "possible CDS use." The facts that supported that suspicion were not recorded on the form. The relevant reports were not produced until the hearing following our remand. The information initially provided in this case was not adequate to permit review by superior officers or a court. The form permits the superior officer who authorizes the test to attach any reports that he or she considered in authorizing the test. Because the underlying information was provided on remand, any failure to provide an adequate description of the facts at the time of the first hearing was harmless.

Finally, Rosario has not pointed to any unfair prejudice that he suffered as a result of the technical deviations. As noted above, when this court remanded the matter for further proceedings, Rosario declined the opportunity to confront any of the witnesses and admitted that he was guilty of the charge.

Our decision should not be read as approving non-compliance with the Department's regulations governing drug tests. We simply conclude that in this case any error resulting from the deviation is harmless and not reflective of arbitrary administrative action.

The Commissioner's regulations are designed to provide inmates with notice of the circumstances under which they will be tested and to prevent individual officers from making decisions that are either arbitrary or in conflict with institutional policies set by their superiors. N.J.A.C. 10A:3-5.10; Rawlings, supra, 133 N.J. at 191. The administrators of prisons are responsible for order and rehabilitation in a "volatile environment" that can be a "dangerous place[]." Hamilton, supra, 366 N.J. Super. at 288. Adherence to the Commissioner's regulations for drug testing is important to both goals. See id. at 291 (discussing the importance of drug interdiction in prisons); Jackson v. Dep't of Corrections, 335 N.J. Super. 227, 233 (App. Div. 2000) (describing the dangers of transfer of drugs during contact visits with prisoners as a "commonly known . . . conduit for introducing contraband into correctional institutions" and describing common sense modes for accomplishing such transfers), certif. denied, 167 N.J. 630 (2001).

Although we conclude that the technical deviation was harmless in this case, we note that individual officers who assume responsibility that the Commissioner has reserved for their supervisors risk undermining respect for rules of the institution that are designed to further rehabilitation through fairness in administration. See Avant, supra, 67 N.J. at 522-23. The Commissioner's regulation provides clear guidance on drug testing and adherence to that regulation is beneficial to both those who live and work in the prison.

 
Affirmed.

Rosario does not argue that the drug test violated his constitutional right to be free from unreasonable search or seizure. Rather, he recognizes this court's decision in Hamilton v. New Jersey Department of Corrections, 366 N.J. Super. 284, 292 (App. Div. 2004) (holding that the constitutional prohibition does not preclude a drug test of an inmate "in the absence of individualized suspicion or probable cause").

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A-0924-04T2

January 20, 2006