On appeal from a Final Administrative Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2008
Before Judges Gilroy and Chambers.
Appellant William Davis, an inmate at the East Jersey State Prison, appeals from the final decision of the Department of Corrections ("DOC"), finding him guilty of using illegal drugs in violation of N.J.A.C. 10A:4-4.1(a)*.204.
The record indicates that on September 24, 2007, Lt. R. Bonilla found an anonymous note suggesting that five named inmates, including Davis, were using heroin. Based on that information, he ordered that the inmates be frisked and that urine samples be obtained from them. While no illegal drugs were found during the search of Davis, his urine test was positive for the presence of illegal drugs.
Davis was charged with a prohibited act in violation of N.J.A.C. 10A:4-4.1(a)*.204, namely, "use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff." After a disciplinary hearing, he was found guilty of this prohibited act. He received as sanctions fifteen days of detention, 365 days of administrative segregation, 365 days of loss of commutation time, permanent loss of contact visits, 365 days of urine monitoring, and referral to the classification committee for transfer to the New Jersey State Prison Administrative Segregation Unit. This decision was upheld by the Department of Corrections' Assistant Superintendent.
On appeal to this court, Davis contends that he was denied procedural due process in the disciplinary proceeding and that the DOC decision was not based on substantial credible evidence in the record. He argues that the prison officials had no basis to order the urine testing, maintaining that the existence of the anonymous note was a fabrication. He further contends that the urine testing procedures did not comply with applicable standards, because: (1) the evidence forms had been prepared in advance; (2) Officer Cabrera participated in conducting the test although his name does not appear on the forms; and (3) his urine was transferred from a defective cup to another test cup during the testing, thereby creating the likelihood of cross-contamination and a false positive reading.
We note that regulations allow an inmate to be tested "[w]hen 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." N.J.A.C. 10A:3-5.10(b). Here the testing was done after the anonymous note was received. Davis contends that the anonymous note is a fabrication, and thus, the officers had no factual basis to order the urine testing. Davis, however, provides no evidence to sustain this assertion. Lt. Bonilla's written report states that he found the note and that he then ordered the five inmates named in the note to be frisked and subjected to urine testing. A copy of the anonymous note is in the record. Thus, the record contains substantial evidence that Lt. Bonilla had a reasonable factual basis to order the urine testing.
Davis also questions the testing procedure. He complains that the testing forms were prepared in advance of the urine test. Indeed, the DOC acknowledges that the forms were prepared in advance. The hearing officer explained that "COE [continuity of evidence] forms were prepared in advance[;] you need to have I/M's [inmate's] name/number/reason/test cup inspected and open by SCO [senior corrections officer] in advance to be place[d] with [the] cup to keep track [of] whose cup/form belong[s] to who[m]." There is no showing that this practice would impugn the validity of the testing.
Davis also contends that Officer Cabrera took urine samples although Officer Cabrera is not identified on the forms as having done so. In support of this contention, Davis points to a form he received from Officer Cabrera advising Davis of the minimum quantity of urine that must be collected during the test. Officer Cabrera signed the form, verifying that he had given it to Davis on the date indicated. The fact that Officer Cabrera delivered this form to Davis is not substantial proof that the Officer administered the test to Davis. In his written statement, Officer Cabrera indicated that he did not collect the urine samples although he was present as back-up during the testing in case "something went wrong." According to Davis, the other two officers involved in the testing testified before the hearing officer that Officer Cabrera did not participate in conducting the tests, but he was present for security purposes only. The hearing officer found no evidence to support Davis' claim that Officer Cabrera collected urine samples. That determination is supported by substantial credible evidence in the record.
When inmates undergo urine testing, the administrative code provides that: "specimens taken from inmates shall be voided directly into an approved specimen container and immediately labeled in the presence of the inmate and at least one custody staff member or other authorized staff member of the same gender as the inmate." N.J.A.C. 10A:3-5.11(f).
Davis asserts error during the collection process, contending that his urine was transferred from one cup to another, thereby tainting the test results. The other four inmates, who also had provided urine samples, stated to the DOC investigator that the officers performing the urine testing had transferred Davis' urine from one cup to another. Their statements were placed into the record at the disciplinary hearing below. However, in response to written questions, the three corrections officers present at the testing denied that Davis' urine was transferred from a defective cup to another one. These officers also appeared at the hearing for confrontation as requested by Davis' counsel substitute. In light of these proofs, there was substantial evidence to support the hearing officer's determination that Davis had not proven his contention that an officer had poured a sample of the urine from one cup to another.
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)). Here, the hearing officer had the anonymous note stating that Davis was using heroin and Davis' urine test indicating the presence of illegal drugs. There was thus ample proof that Davis was using illegal drugs, a prohibited ...