October 6, 2008
MICHAEL O'HARA, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Payne and Waugh.
Appellant James O'Hara, who is incarcerated at East Jersey State Prison in Rahway, appeals from the imposition of discipline by the New Jersey Department of Corrections (DOC). On October 23, 2007, a DOC hearing officer found O'Hara guilty of disciplinary infraction *.204, "use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff." N.J.A.C. 10A:4-4.1. That decision was upheld in an internal administrative appeal. O'Hara contends that his due process rights were violated because (1) there were errors with respect to the urine testing procedure; and (2) the finding of guilt was not supported by "substantial evidence" as required by N.J.A.C. 10A:4-9.15. We affirm.
We glean the following procedural and factual background from the record. On September 24, 2007, Lieutenant R. Bonilla reported that he found a folded-up piece of paper on the floor near the door of the day-room. The note read "2-Up 68, 69, 67, 66, 65 Heroin." O'Hara was one of the inmates indicated in the note. Bonilla then ordered Sergeant R. Valentine to have those inmates frisked and provide urine samples for drug testing. The initial, on-site testing of O'Hara's urine specimen was positive for opiates.
On September 25, 2007, O'Hara's urine specimen was sent to the New Jersey Department of Health and Senior Services Laboratory for additional testing. The testing results revealed that O'Hara's urine specimen tested positive for opiates. On October 3, 2007, O'Hara was charged with the *.204 violation for the use of a prohibited substance. O'Hara chose to avail himself of the services of a counsel substitute, as permitted by N.J.A.C. 10A:4-9.12.
On October 5, 2007, Hearing Officer J. Osvart postponed the disciplinary hearing because counsel substitute requested additional time to prepare the defense. The hearing was postponed a second time because O'Hara requested confrontation of Valentine and Senior Correction Officers Cabrera and Odgers, and the confrontation needed to be scheduled with the officers. On October 15, 2007, the hearing was again postponed because there was limited movement permitted at the prison and all hearings such as O'Hara's were postponed. On October 17, 2007, the confrontation of Cabrera and Odgers was completed, and the hearing was postponed to complete the confrontation of Valentine.
The hearing was reconvened and completed on October 19, 2007. O'Hara pled not guilty to the charge and was assisted by his counsel substitute. After hearing testimony, reviewing all the evidence, and considering O'Hara's arguments, Hearing Officer Osvart found O'Hara guilty of the disciplinary charge.
There was no verbatim record of the hearing. On the adjudication form, the hearing officer summarized his evidential findings as follows:
Summary of evidence relied on to reach decision[:] Officer reports that an unsign[ed] note was rec'd saying this I/M was using drugs, I/M was ordered to provide a urine. The urine tested positive for Opiates. I/M claims the urine was obtain[ed] via the search, [but] the urine was obtain[ed] due to the note. COE forms were prepared in advanced, you need to have the I/M's name/number/reason/test cup inspected and open by Ofc in advance . . . to keep track who's cup/form belongs to who, no evidence provided by I/M to prove SCO Odger was not the only individual taking the urine, no evidence provided to support the claim that SCO Cabrera obtain[ed] any of the urine samples. SCO Cabrera['s] signature on statement to I/M . . . does not prove he obtain[ed] any urine samples. No evidence to prove that any officer poured one sample into another test cup to taint the results, I/M's two witness(es) SCO Odgers/Sgt. Valentine were confronted and failed to provide any evidence to support any claim by the I/M. All relied on [to] determine guilt.
O'Hara was sanctioned as follows: 15 days detention, 300 days administrative segregation, 300 days loss of commutation credit, and 300 days urine monitoring. O'Hara's possible transfer to New Jersey State Prison Administrative Segregation was referred to the classification committee.
On October 22, 2007, O'Hara filed an administrative appeal. On October 23, 2007, Assistant Superintendent LaForgia upheld the hearing officer's decision. He found that the required "[p]rocedures and safeguards" had been followed and that the "sanction [was] appropriate to the offense." O'Hara filed a timely notice of appeal.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
We have considered each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
The hearing officer's summary decision squarely addressed O'Hara's procedural concerns. Although O'Hara claimed that Bonilla ordered the taking of urine samples because of "an unproductive search" of his housing unit, the hearing officer found that the urine samples were ordered because of the anonymous note, which was produced at the hearing and is in the record before us. The hearing officer confirmed that the specimen forms were, as O'Hara contended, filled out in advance. However, he also found that it was necessary to do so to avoid mixing up the samples. The hearing officer specifically found:
(1) no evidence that Cabrera, or anyone other than Odgers, took the urine samples; and (2) that the samples were not contaminated or mixed together. Inasmuch as O'Hara's urine tested positive for opiates, we are satisfied that there was "substantial evidence," as required by N.J.A.C. 10A:4-9.15, to support the finding that O'Hara violated N.J.A.C. 10A:4-4.1, specifically infraction *.204.
Based upon our review of the active record, we find that the due process protections required by Avant v. Clifford, 67 N.J. 496, 525-33 (1975), were afforded to O'Hara in this case. The decision of the DOC was not arbitrary, capricious, or unreasonable, Henry, supra, 81 N.J. at 579-80, but instead was supported by substantial evidence in the record. Jacobs v. Stephens, 139 N.J. 212, 222 (1995). Accordingly, we affirm the decision of the DOC.
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