May 23, 2008
CURTIS THROWER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2008
Before Judges Coburn and Chambers.
Appellant Curtis Thrower, an inmate at East Jersey State Prison, appeals from a final administrative determination that he failed to produce a urine sample within two hours after being asked to do so. Since the record indicates that Thrower was on medication that had as a side effect urine retention, the final administrative determination is reversed.
The facts are not in dispute. On June 18, 2007, Thrower was requested to provide a urine sample since prison officials were concerned that he might be using a controlled dangerous substance. After being provided with water to drink and waiting two hours, Thrower did not provide a urine sample. As a result, he was charged with a *.259 violation under N.J.A.C. 10A:4-4.1, which subjects an inmate to disciplinary sanctions for "failure to comply with an order to submit a specimen for prohibited substance testing."
At the time the sample was requested, Thrower was taking medication called Elavil, which has as a known side effect urine retention. The chart note from the prison infirmary dated June 19, 2007, the day after the incident, signed by Dr. David Kalal, a psychiatrist, states that:
IM [Thrower] is currently prescribed Elavil by the MH Department. Potential anticholinergic side effects from this medication include dry mouth, urinary retention, constipation, and blurred vision.
Note that IM has previously only complained of constipation to psychiatrist as a side effect. It cannot be determined to what effect this may have had on his inability to urinate.
An administrative hearing was held on June 20, 2007, in accordance with N.J.A.C. 10A:4-9.8. The hearing officer found Thrower guilty of the prohibited act. Thrower received sanctions of ninety days of administrative segregation, ninety days loss of commutation time, 180 days of urine monitoring, and permanent loss of contact visits. He did receive credit for time served for prehearing detention. In finding Thrower guilty, the hearing officer explained his decision as follows:
Inmate is on Elavil and this [urinary retention] is a side effect of Elavil.
However, Dr. Kalal reports inmate never previously reported this side effect and the inmate himself claims he never reported it previously. His claim at this point is viewed as nothing more than an opportunity to avoid responsibility for the charge.
Probable cause to request a urine sample existed. Inmate was given water to drink and he did not produce a sample within the required time period. Substantial evidence of guilt exists and the charge is upheld.
The decision of the hearing officer was upheld by the administrator on the basis that "[t]here is no direct evidence to support this inmate's claim prior to the incident with regard to urinating difficulties."
On appeal defendant contends that the record did not support a finding that he committed the violation because the medication he was taking caused urine retention as a side effect. He maintains that the hearing officer's decision was arbitrary, capricious and in violation of his rights to a fair and impartial trial.
A hearing officer's findings in an inmate's disciplinary hearing must be based on "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
In this case, the evidence indisputably shows that Thrower was on medication that had as a side effect the retention of urine. The hearing officer and administrator rejected Thrower's defense that he was experiencing the side effect because Thrower had not previously reported this side effect. However, the fact that Thrower never reported having this side effect does not mean he did not experience it. He may not have experienced the side effect earlier, or he may not have thought that the failure to urinate within a two hour period was a problem meriting complaint or medical attention. Due to the fact that the medication Thrower was taking has this known side effect and in the absence of further proof of willful conduct on his part in failing to provide the urine sample, the hearing officer's decision was not supported by substantial evidence.
The decision of the hearing officer is reversed, and the sanctions shall be vacated.
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