August 24, 2012
LEMUEL SHAMBRY, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 May 31, 2012
Before Judges Sapp-Peterson and Ostrer.
Lemuel Shambry, an inmate currently incarcerated at South Woods State Prison in Bridgeton, appeals from the final agency decision finding him guilty of disciplinary infraction *.258,*fn1 refusing to submit to testing for prohibited substances, N.J.A.C. 10A:4-4.1(a). We reverse and remand for further proceedings.
The facts are not in dispute. Shambry was subject to random urinalysis testing on March 4, 2011. He was required to void a minimum of thirty milliliters of urine for testing. He indicated that he was unable to urinate. He was offered water and, two hours later, he still had not provided a urine sample. He was charged with refusing to provide a urine sample. The departmental hearing commenced on March 7, but was postponed to March 11 and then rescheduled for March 16. On the latter date, Shambry's explanation for his refusal to void the requisite urine was that the medications he was taking affected his ability to urinate. The hearing officer rejected this explanation, finding "[s]ubstantial evidence supports the charge." The evidence included the incident reports as well as a chart note, which we note was prepared on March 16, the morning of the resumed hearing, in which the nurse wrote: "Patient is not on any medications that would cause urinary retention, or difficulty with urination." The hearing officer, in her decision, reasoned that "[m]edications all have numerous side effects, this does not mean inmate experienced any or all effects." The hearing officer imposed the following sanctions: ten days detention, 120 days confinement to administrative segregation, one-year loss of contact visits, and one-year urine monitoring.
Shambry appealed to the prison administrator, seeking a new hearing. He contended he did not refuse to submit to the urine test but was unable to do so because of the medication he was taking. He presented a list of medications he claimed he was taking, along with the unpublished decision in Thrower v. N.J. Dep't of Corr., No. A-005795-06 (App. Div. May 23, 2008). The prison administrator upheld the guilty adjudication and sanctions imposed, except that he suspended the administrative segregation for sixty days. The present appeal followed.
On appeal, Shambry contends the decision should be reversed because it was based upon proceedings that violated his due process rights. Specifically, he contends the hearing officer improperly dismissed the defense, the evidence was insufficient to support guilt, there is no valid rule or regulation prohibiting his conduct, and the statement of reasons was inadequate.
Our scope of review of administrative decisions is quite limited. We will reverse an agency decision "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are not to substitute our judgment for that of the agency, Brady v. Dep't of Pers., 149 N.J. 244, 264 (1997), nor substitute our fact-finding for that of the agency. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Id. at 573-74 (citations omitted). Judged by these standards, we are constrained to reverse.
While the hearing officer's findings are entitled to our deference, those findings must be supported by "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Here, Shambry claimed he was taking medication that affected his ability to void the urine. The nursing note does not dispute that Shambry was taking medication, but in conclusory fashion, it simply states that Shambry was "not on any medications that would cause urinary retention, or difficulty with urination." While the nurse's statement implies Shambry was on medications, it is unclear what medications Shambry was taking, as the nursing chart does not identify the prescribed medications. Nor does it appear that Shambry specifically identified the medications he was taking to the hearing officer.
In his appeal to the prison administrator, Shambry states: "Inmate paralegal argued the fact that when the medical department stated 'that inmate does not take any medication that would prevent inmate not to urinate' . . . paralegal submitted that medication does prevent urination (see disciplinary packet marked D-)[.]" To the extent this is a fair representation of what transpired at the hearing, this was an argument to the hearing officer supported by reference to an unpublished Appellate Division decision, but not a specific representation that Shambry was in fact taking the same medication as the inmate in the unpublished opinion.
Given the conclusory nature of the nurse's entry in the medical chart and the lack of other facts before the hearing officer regarding the nature of the medications Shambry was taking, or what, if any, prior reported side effects Shambry experienced from the medications, we cannot conclude that the agency's decision is supported by "substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80. A reversal and remand are therefore warranted.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.