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Kirk v. New Jersey Dep't of Corrections

August 19, 2010

GARRICK KIRK, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 10, 2010

Before Judges Lihotz and Baxter.

This is an appeal from a June 26, 2009 final agency decision of the New Jersey Department of Corrections (DOC), in which DOC imposed disciplinary sanctions upon Garrick Kirk, then an inmate at South Woods State Prison,*fn1 for committing an act prohibited by N.J.A.C. 10A:4-4.1. In particular, on June 25, 2009, the hearing officer found Kirk guilty of *.203, possession of any prohibited substance such as a drug or intoxicant not prescribed for the inmate by medical or dental staff. The hearing officer imposed a sanction of fifteen days detention, 365 days loss of commutation credits, 365 days loss of administrative segregation, permanent loss of contact visits and confiscation of the contraband.

On appeal, Kirk maintains that the finding of guilt must be reversed because: 1) it was not based upon substantial and credible evidence in the record; 2) he was denied due process when the hearing officer denied his request for confrontation and cross-examination of witnesses and failed to document his request for same; and 3) his due process and confrontation rights were violated by the withholding of information relating to a confidential informant. We reject those contentions and affirm.

I.

On June 16, 2009, acting upon a confidential tip from an inmate, who alleged that Kirk was in possession of a prohibited cellular telephone, Sergeant McKishen placed Kirk in restraints and escorted him to holding cell 1005. The holding cell is described by DOC as a "dry cell," because it has no bed, sink or toilet. A "dry cell" is used when an inmate is under suspicion for having ingested or hidden contraband in his body. Kirk was placed in the Body Orifice Scanning System (BOSS) chair, which emitted a positive signal for a metallic foreign object. Further medical testing ultimately revealed that the BOSS chair was detecting not a concealed cell phone, but instead surgical pins that had earlier been inserted in Kirk's hip.

Prior to Kirk's placement in holding cell 1005, Officer Spindler searched the cell and found it to be clear of any contraband. When Kirk was removed from cell 1005, Senior Corrections Officer McCoy searched the cell and found three latex balloons containing a green leafy substance, which tested positive for marijuana.

Immediately after the marijuana was confiscated, Kirk was ordered to provide a urine sample. When the urine sample tested positive for the presence of THC, the active ingredient in marijuana, DOC charged Kirk with possession of a prohibited substance, *.203.

Although the hearing began on June 19, 2009, it was adjourned on three occasions, first because Kirk was on close watch in a dry cell, and later to allow the hearing officer to obtain seizure of evidence reports and to determine why Kirk had been placed in a dry cell. On June 25, the hearing was concluded.

The hearing officer's June 25, 2009 final adjudication report noted that Kirk defended the charge by maintaining that the marijuana was not his, but instead belonged to another inmate who had been in the dry cell before he was placed there and that the corrections officers failed to search the cell after the other inmate was removed and before Kirk was placed there. The hearing officer's report also specifically notes that Kirk was offered the opportunity both before the hearing, and at the hearing, to present witnesses but chose not to do so; and that when offered the opportunity to cross-examine adverse witnesses, he "declined" to do so. After considering the written reports of the corrections officers who searched dry cell 1005, discovered the marijuana and ordered the urine sample, the hearing officer found Kirk guilty of possession of marijuana. After an associate prison administrator affirmed the finding of guilt on June 26, 2009, Kirk filed the present appeal.

II.

Our scope of review is a narrow one, and Kirk's contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, capricious, unreasonable or unsupported by credible evidence in the ...


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