Opinion
DOCKET NO. A-1267-11T2
03-19-2013
THOMAS FERRELL, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Thomas Ferrell, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Roshan D. Shah, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Nugent.
On appeal from the New Jersey Department of Corrections.
Thomas Ferrell, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Roshan D. Shah, Deputy Attorney General, on the brief). PER CURIAM
Appellant Thomas Ferrell, an inmate at the New Jersey State Prison (NJSP) in Trenton, appeals from a final decision of the Department of Corrections (DOC) finding him guilty of violating *.259, "failure to comply with an order to submit a specimen for prohibited substance testing." N.J.A.C. 10A:4-4.1. Ferrell argues the hearing officer's decision was not based on substantial evidence, and the hearing officer violated the administrative code by employing an investigator who was not of "supervisory level." Ferrell also argues that he was denied due process during his administrative appeal because the Assistant Superintendent did not order a supplemental investigation and did not issue a decision in a timely manner. Having considered Ferrell's arguments in light of the record, we affirm.
On the night of September 20, 2011, Senior Corrections Officer (SCO) Leonard Bonanno removed Ferrell and his cellmate from their cell and advised them that their cell was being searched for contraband. During the search, Bonanno found four envelopes containing a powdered substance, which he suspected was a Controlled Dangerous Substance (CDS). He notified his area supervisor, Sergeant Joseph Bundy, who ordered Bonanno to confiscate the suspected CDS. Bundy "sealed" the cell pending an investigation by the Special Investigation Division.
Approximately two hours later, Sergeant Michael Anderson ordered Ferrell and his cellmate to void a urine sample. Anderson provided both men with written notice that the urine specimen had to be at least thirty milliliters and submitted within two hours; and informed them that a refusal to comply would subject them to disciplinary charges. Although Ferrell acknowledged receiving this notice, he did not sign the form and refused to timely submit the required sample. For refusing to provide the sample, Ferrell was moved to a disciplinary detention cell and charged with disciplinary infraction *.259.
The following day, Sergeant Guy Poretti was assigned to investigate the disciplinary charge. The disciplinary hearing was scheduled to take place on September 23, 2011, but was adjourned. Counsel substitute was assigned to assist Ferrell. The hearing took place on September 26, 2011. Ferrell asserted that after Anderson requested the urine sample, Ferrell disclosed that he was legally blind and asked to be placed in a cell with a bathroom so that he could sit. According to Ferrell, Anderson refused. Ferrell then requested to sit or to obtain some type of accommodation for his blindness and disability, but was denied such accommodation. Significantly, Ferrell did not dispute that he failed to void a urine specimen within the required time period.
Nevertheless, the hearing officer assigned SCO John F. Kane Jr. to inquire into the extent of Farrell's disability. Kane learned from one of the registered nurses that Ferrell suffered from blindness in his right eye, but according to Ferrell's medical file his impairment would not prevent him from complying with an order to timely provide an appropriate urine sample.
Based on the reports of Bundy and Bonanno, and the registered nurse's statement, the hearing officer found Ferrell guilty of violating *.259 and sanctioned him by imposing fifteen days' detention; thirty days' loss of recreation; 365 days' administrative segregation; 365 days' urine monitoring; and permanent loss of contact visits pursuant to the Zero Tolerance Policy.
On September 28, 2011 Ferrell filed an administrative appeal. He again argued that he was denied accommodations for his disability. He also argued that Kane improperly inquired of the medical department if Ferrell had "a recognized medical disability that requires accommodation?" Additionally, Ferrell requested leniency.
On October 13, 2011, NJSP's Assistant Superintendent, William J. Anderson, denied Ferrell's appeal, finding:
A review of the charge, investigation and its adjudication revealed that 10A and all of the safeguards therein were adhered to. Your explanation failed to disclose a valid misinterpretation of the facts as it pertains to 10A. While[] your plea for leniency is noted[,] it is denied. For this reason the decision of the Hearing Officer is upheld.Ferrell received the decision the next day.
Appellant makes the following arguments on appeal:
POINT I THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON
SUBSTANTIAL EVIDENCE, IN VIOLATION OF THE CODE.
POINT II THE HEARING OFFICER VIOLATED THE CODE BY EMPLOYING AN IMPROPER INVESTIGATOR.
POINT III APPELLANT WAS DENIED DUE PROCESS DURING THE AGENCY APPEAL, IN VIOLATION OF THE CODE.
The scope of our review of an agency decision is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is unsupported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. Dep't. of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).
Although prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply, see Avant v. Clifford, 67 N.J. 496, 522 (1975), when reviewing a determination of the DOC in a matter involving prisoner discipline, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision the DOC followed regulations adopted to afford inmates procedural due process. See McDonald v. Pinchak, 139 N.J. 188, 194-196 (1995).
Having considered the record in light of the foregoing principles, we conclude that sufficient credible evidence in the record supports the DOC's determination that Ferrell violated *.259. Unquestionably, Ferrell refused to timely provide an adequate urine sample. His excuse -- that he could not effectively give an adequate sample due to his vision impairment -- was refuted by the nurse. There was ample evidence to suggest the conclusion that Ferrell was capable of providing a urine sample without an accommodation.
Ferrell argues that his due process rights were violated because the hearing officer employed an improper investigator in violation of N.J.A.C. 10A:4-9.5, which requires that the administrator of each correctional facility appoint investigating officers who are "supervisory level employees." We decline to address this issue because Ferrell did not raise it before the hearing officer or on his administrative appeal, and only now raises it for the first time on this appeal. Brady v. Dep't of Pers., 149 N.J. 244, 266-267 (1997) (noting that appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available); State v. Robinson, 200 N.J. 1, 21 (2009) ("an appellate court should stay its hand and forego grappling with an untimely raised issue").
Ferrell also argues his due process rights were violated because Assistant Superintendent Anderson decided his administrative appeal in an untimely manner. Ferrell has shown no prejudice occasioned by the untimely decision.
N.J.A.C. 10A:4-11.7(a)(1) provides, in pertinent part:
(a) In all cases, the inmate shall be notified in writing of the results of the review of the inmate's appeal and the reasons therefor.
1. If an inmate is being held in Disciplinary Detention which resulted from disciplinary action, the written decision on the appeal shall be given to the inmate within [seventy-two] hours of receipt of the appeal, excluding weekends and holidays, in the absence of exceptional circumstances.
Anderson issued his decision fifteen days after Ferrell filed the appeal. Nevertheless, Ferrell does not explain how this delay unfairly prejudiced him. He was afforded the procedural due process required by Avant, supra, 67 N.J. at 525-30, was not prejudiced by the delay, and received an impartial review of the hearing officer's determination. The delay constituted harmless error. See Jacobs v. Stephens, 139 N.J. 212, 219 (1995) ("[a] harmless-error analysis is applied typically to a denial of rights accorded to defendants to facilitate their defense"; "a court should be reluctant to overtax and/or hamstring a prison official's execution of disciplinary policies and procedures by mandating an automatic remand for technical non-compliance with a regulation, absent some showing of prejudice . . . .") (internal quotation marks and citations omitted).
Finally, Ferrell's argument that the Assistant Superintendent failed to reinvestigate his claim on appeal does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following. N.J.A.C. 10A:4-11.4(a) provides that administrators charged with deciding administrative appeals "may order an independent investigation of the charge." (emphasis added). The decision is discretionary. In view of the substantial credible evidence that Ferrell violated *.259, and the absence of any compelling explanation of the need for additional investigation, there is no basis for concluding that the Assistant Superintendent abused his discretion in declining to order a reinvestigation.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION