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Mitchell v. Dep't of Corrections

August 7, 2009

RICHARD MITCHELL, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Reisner and Sapp-Peterson.

This is a prison disciplinary appeal. Richard Mitchell, an inmate currently confined at New Jersey State Prison in Trenton, appeals a final determination of the Department of Corrections (DOC) finding him guilty of refusing to obey an order and failing to submit to drug testing. We affirm.

On June 29, 2008, Correction Officer Recruit Godfrey advised Mitchell that he was to report to Building A at 5:30 p.m. for drug testing. Mitchell told Godfrey that he was not going to take the test and that he would just go to lock-up. He was ordered a second time to report to Building A for urine testing by Sergeant Pritchett. Once again, using expletives, Mitchell refused to report for the testing and told the sergeant to put him in pre-hearing detention. The next day Mitchell was served with two disciplinary charges: (1) refusing to obey an order, .256; and (2) failure to submit to testing for prohibited substances, *.258.*fn1 A hearing was conducted on July 3.

At the hearing, Mitchell admitted that he uttered the expletive "fuck it" when ordered to report for drug testing. With respect to refusing to submit to drug testing, Mitchell's counsel substitute urged that the "clock doesn't start till 5:30 p.m." The hearing officer found the evidence presented supported the charges and found Mitchell guilty of the charges. On the .256 charge, the hearing officer imposed fifteen days detention with credit for time served, ninety days administrative segregation, and sixty days loss of commutation time. On *.258, the hearing officer imposed consecutive fifteen days detention with credit for time served, 120 days administrative segregation, 120 days loss of commutation time, 180 days of urine monitoring, and permanent loss of contact visits. Mitchell administratively appealed the hearing officer's findings and sanctions imposed. The assistant superintendent upheld the findings and sanctions imposed. The present appeal followed.

On appeal, Mitchell contends that his due process rights were violated. Specifically, he claims the testing procedure was inadequate, the guilty finding on the *.258 charge was "fundamentally unfair," and the hearing officer's statement of reasons was inadequate. We reject all of these arguments.

N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

In Avant, supra, 67 N.J. at 522, the Court held that prison disciplinary proceedings are not criminal proceedings and, therefore, inmates charged with disciplinary infractions are not entitled to the full panoply of rights afforded to criminal defendants. Nonetheless, the Court held that inmates facing disciplinary charges are entitled to limited protections before sanctions may be imposed against them. Id. at 524-25.

Consistent with the limited procedural rights which an inmate facing disciplinary sanctions must receive under Avant, the record here demonstrates that the DOC adhered to all of these procedures. Mitchell received notice of the charges at least twenty-four hours in advance of the hearing. Id. at 525. The hearing was conducted by a member of DOC's central office staff. Id. at 525-28. Because Mitchell was charged with an asterisk offense, he was provided counsel substitute. Id. at 529. Mitchell was also offered an opportunity to call witnesses on his own behalf and to confront adverse witnesses, but declined to avail himself of this opportunity. Id. at 529. Finally, Mitchell and his counsel substitute had the opportunity to review the evidence the hearing officer considered in reaching the decision, as well as the explanation for the sanction imposed. Id. at 533.

There is no dispute that Mitchell verbally refused to report to Building A for drug testing. In his letter brief, Mitchell argues that the correction officers "over-reacted and placed [him] on Pre[-]hearing Detention" and that he was not given "an opportunity to provide the sample." Mitchell did not, however, before 5:30 p.m. or over the next two hours thereafter, express a desire to comply with the order. Thus, the record does not support his contention that the correction officers overreacted in placing him in pre-hearing detention.

Likewise, Mitchell's claim that charging him with both a .256 and a *.258 infraction was prohibited because each charge was based upon the same conduct is without merit. While both infractions factually involve a refusal on his part, had he followed the order to report to Building A to submit to urine testing and, once there, refused to provide the urine sample, he would have only violated *.258, refusing to submit to testing for prohibited substances. Thus, the charges are distinct.

Finally, Mitchell's claim that the hearing officer's statement of reasons was inadequate is without sufficient merit to warrant discussion in a written opinion. R. ...


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