NATHANIEL FOSTER v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1753-06T11753-06T1

NATHANIEL FOSTER,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted September 5, 2007 - Decided September 7, 2007

Before Judges Cuff and Lintner.

On appeal from a Final Decision of the Department of Corrections.

Nathaniel Foster, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, Nathaniel Foster, is an inmate currently serving a life sentence at New Jersey State Prison in Trenton. Petitioner appeals from a determination of the Department of Corrections (Department) finding that he committed prohibited act *.204, use of any prohibited substance such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff, N.J.A.C. 10:4-4.1(a). Petitioner was sanctioned fifteen days of detention, 180 days of administrative segregation to be suspended for sixty days, 180 days of urine monitoring, 180 days loss of commutation time and permanent loss of contact visits. We affirm.

On June 15, 2006, petitioner was asked to provide a urine sample for testing. The disciplinary report filled out by Sergeant Newsom indicates that petitioner was requested to give a random urine test. On June 30, 2006, the sample was reported as positive for opiates. On July 1, 2006, petitioner was charged with the infraction. He responded, claiming he was "on meds that may give a false reading." Petitioner requested counsel substitute but did not ask for any witnesses. On July 10, 2006, Assistant Superintendent Donald Mee indicated in an e-mail that Foster's urine test was ordered pursuant to N.J.A.C. 10A:3-5.10(b)8. The hearing was postponed several times awaiting receipt of medical confirmation to determine whether Foster was taking medication that would cause a false reading. On July 25, 2006, Mari Knight issued a Special Incident Report, indicating that petitioner "is not on any meds that will cause a positive urine screen for opiates per Dr. Melendez, medical provider."

A hearing was held on July 26, 2006. At the hearing, Foster chose not to give a statement or offer any witnesses. Instead, counsel substitute argued that "[t]he charge states it was random, but it was not, although Mr. Mee gave a special [report][,] it was not specified in the charge." The hearing officer found that, as a wing representative, petitioner was ordered to submit to the urine test pursuant to N.J.A.C. 10A:3-5.10(b)8, and the lab report confirmed that the results were positive. On administrative appeal, Assistant Superintendent Kandell upheld the charges and sanctions recommended by the hearing officer.

On appeal, petitioner argues the following point:

BECAUSE CUSTODY STAFF HAD KNOWINGLY FALSIFIED OFFICIAL DOCUMENTS TO OBTAIN A URINE DRUG TEST FROM APPELLANT BY ASSERTING THAT IT WAS A RANDOM URINE TEST AND THE RECORD REVEALED THAT THERE WAS NO RANDOM URINE TESTING CONDUCTED ON THE DAY THE APPELLANT HAD TAKEN THE TEST OR ANY ARTICULATED REASONABLE SUSPICION OR PROBABLE CAUSE FOR THE APPELLANT TO SUBMIT TO A URINE DRUG TEST THE APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED THEREFORE THE MATTER SHOULD BE REVERSED AND VACATED.

Petitioner essentially argues that he was denied due process because the Department lacked probable cause for the ordering of a urine test and Assistant Superintendent Mee issued a "fabricated," "belated" report because the Department was aware that it had no probable cause to order the urine test. Petitioner also asserts that his hearing was unjustifiably postponed.

We are required to uphold a decision of the Department where it is supported by substantial credible evidence in the administrative record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The appropriate constitutional safeguards and the concomitant procedures outlined in Avant v. Clifford, 67 N.J. 496, 522-30 (1975), "require[] an 'intricate balancing of prison management concerns with prisoner's liberty.'" Jackson v. Dep't of Corr., 335 N.J. Super. 227, 233 (App. Div. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 478, 115 S. Ct. 2293, 2297, 132 L. Ed. 2d 418, 426 (1995)), certif. denied, 167 N.J. 630 (2001). We have recognized that "'[p]risons are dangerous places'" and accordingly "courts must afford appropriate deference and flexibility to corrections officers trying to manage a volatile environment." Id. at 233 (quoting Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 65 (App. Div.), certif. denied, 162 N.J. 196 (1999)). This is especially true when it comes to drug protection policies.

N.J.A.C. 10A:3-5.10(b)8 provides that "[i]nmates shall be tested" for prohibited substances "[w]hen 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." We have held that in the prison context, "the requirement of probable cause, or even showing of reasonable suspicion prior to drug testing [may] be impractical . . . ." Hamilton v. N.J. Dep't of Corr., 366 N.J. Super. 284, 291 (App. Div. 2004). There is nothing in the record before us to indicate that Department personnel in any way fabricated the basis for ordering the urine test in question. Petitioner's claims to the contrary lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Likewise, the record reflects that the hearing was postponed in order to substantiate petitioner's assertion that he was on medication that would adversely affect the urine test. Indeed, it was commenced one day after receipt of verification from petitioner's medical provider that such was not the case. Petitioner was accorded the appropriate safeguards and protections during the procedure in accordance with Avant, supra, 67 N.J. at 522-30.

 
Affirmed.

(continued)

(continued)

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A-1753-06T1

September 7, 2007