January 19, 2011
MARVIN MAYS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011 - Decided Before Judges Wefing and Baxter.
This is an appeal from an August 27, 2009 final agency decision of the New Jersey Department of Corrections (Corrections) imposing disciplinary sanctions upon New Jersey State Prison inmate Marvin Mays pursuant to N.J.A.C. 10A:4-4.1. A hearing officer found Mays guilty of prohibited act *.708, refusal to submit to a search, and *.203, possession or introduction of any prohibited substances, such as drugs, not prescribed for the inmate by the medical or dental staff.
The charges were based on a corrections officer's claim that while conducting a routine strip search of Mays on August 6, 2009, Mays grabbed an item off a shelf in his cell and refused to unclench his hand when directed to do so. When Mays was finally subdued, the officer opened the pill bottle in Mays's hand and found in the bottle three white oval pills, later identified as Vicodin, and nineteen white round pills, later identified as MS-Contin.
At the conclusion of the August 11, 2009 hearing, the hearing officer imposed a sanction of ten days detention, 365 days of administrative segregation, 365 days loss of commutation credits, urine monitoring, and one year loss of contact visits. The sanctions were ordered to be served consecutively. Mays filed an administrative appeal. On August 27, 2009, Corrections upheld the hearing officer's decision.
On appeal, although framed as a single claim, "the decision of the hearing officer violates due process and should be vacated," appellant has actually advanced four separate arguments under that single point heading. Those claims are: 1) the hearing officer improperly conducted the hearing without appellant being present; 2) appellant was improperly denied the opportunity for confrontation of the adverse witnesses; 3) the hearing officer's findings on the charge of improperly possessing medication are not supported by substantial evidence in the record because both medications were prescribed by prison medical staff; and 4) the charge of refusing to submit to a search was improperly based on nothing other than a Corrections Officer's report and the hearing officer failed to explain why he found the officer's contentions credible.
We consider appellant's first two arguments jointly. We conclude the record does not support appellant's claim that the hearing was conducted outside of his presence and that he was denied his opportunity for confrontation. To the contrary, the official report prepared by the hearing officer specifies that Mays was present, declined to make a statement, failed to name any witnesses and was "offered and declined [the opportunity] to confront adverse [witnesses]." Mays has presented nothing other than his own uncorroborated statement to support his contention that the hearing was conducted in his absence and he was denied his right of confrontation. Because substantial evidence supports the contention by Corrections that appellant was present at the hearing and was offered the right to confront witnesses, we reject his contentions to the contrary. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (holding that a reviewing court is obliged to affirm the agency's findings unless such findings were arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law).
We turn to point three, in which appellant contends the hearing officer failed to consider evidence contained in the record establishing that the medications in question, Vicodin and MS-Contin, were both prescribed by a prison physician. The hearing officer's findings were limited to the following statement: "the pills were not prescribed by the medical department." To refute that finding, Mays points to a "Chart Document" showing that Vicodin was prescribed for him on July 13, 2009:
Orders to be Processed and/or Transcribed: New or Changed Medications & Immunizations VICODIN 5-500 Mg TABS (HYDROCODONEACETAMINOPHEN) 2 po TID prn x 30 days Abu Ahsan, M.D. July 13, 2009 3:05 p.m.
The record also contains evidence that the MS-Contin was prescribed by a physician, on July 29, 2009:
MS-CONTIN 30 MG TB 12 (MORPHINE SULFATE) 1 po BID x 90 days Abu Ahsan, M.D. July 29, 2009 9:13 a.m.
In light of those prescriptions, Mays argues that the record does not support the hearing officer's conclusion that the medications found in Mays's possession "were not prescribed by the medical department." Corrections responds to appellant's argument by pointing out that the MS-Contin was discontinued on August 7, 2009 as a result of Mays's "being found hoarding MSContin." Regardless of whether the MS-Contin may have been discontinued on August 7, 2009, the uncontroverted evidence in the record demonstrates that at the time the charges were filed against Mays on August 6, 2009, the MS-Contin was properly prescribed. We therefore reverse the finding by Corrections that Mays violated *.203 because he was illegally in possession of MS-Contin.
Corrections argues that even if appellant was properly prescribed MS-Contin, "it is not disputed that he should not have been in possession of Vicodin." The record does not support Corrections's argument, as the prescription issued by Dr. Ahsan demonstrates that the Vicodin was duly prescribed on July 13, 2009 and thus, at the time the charges were filed against Mays on August 6, 2009, the prescription for Vicodin was in effect.
Because the guilty finding on *.203, possession of prohibited substances, was not supported by the record, we reverse the guilty finding on that charge.
In point four, appellant maintains that the guilty finding on the charge of refusal to submit to a search should be reversed because it was not supported by substantial evidence. We disagree. The hearing officer relied upon a report from Senior Corrections Officer Valleau, in which Valleau stated that while searching Unit 2C, he ordered Mays to submit to a strip search. According to Valleau, during the strip search, Mays "grabbed an object off of [sic] the counter in the cell [and] . . . put the object behind his back [,] . . . refus[ing] to show this officer the object in his hand, thus causing the inmate being taken down to the ground and a code #33 to be called." This evidence was uncontroverted, and clearly establishes that Mays refused to submit to the search.
Contrary to appellant's contentions, the hearing officer was not obliged to specify why he found Valleau's report to be credible, especially since there was no contrary evidence. We thus reject appellant's argument that the *.708 charge must be reversed, as the finding of guilt was supported by substantial and credible evidence.
Affirmed in part. Reversed in part. Remanded for correction of appellant's institutional record to reflect a not guilty finding on the *.203 charge, and to vacate the sanctions that were imposed for that charge.
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