JOHN FARKAS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 19, 2018
• Docket: A-5331-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5331-15T4

JOHN FARKAS,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent. _____________________________

Submitted September 12, 2018 – Decided September 19, 2018

Before Judges Sabatino and Mitterhoff.

On appeal from the New Jersey Department of Corrections.

John Farkas, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Suzanne M. Davies, Deputy Attorney General, on the brief).

PER CURIAM Appellant John Farkas appeals from a final agency decision of the New

Jersey Department of Corrections ("DOC"), finding him guilty of prohibited act

*.259, failure to comply with an order to submit a specimen for prohibited

substance testing, in violation of N.J.A.C. 10A:4-4.1. We affirm.

On June 22, 2016, at approximately 8:40 a.m., a corrections officer

ordered Farkas to provide a urine sample for drug testing. At that same time,

Farkas signed an "Order to Void" form, advising that he would face disciplinary

action if he failed to provide a urine sample within two hours. Farkas was

provided with about five cups of water, but stated he was unable to void at both

10:30 a.m. and 11:00 a.m. At approximately 11:15 a.m., corrections officers

removed Farkas to the medical unit. At approximately 11:37 a.m., Farkas

requested that he be provided with a cup to provide a urine sample and signed

another "Order to Void" form. He then provided a urine sample, which

ultimately tested negative for prohibited substances.

On June 23, 2016, the DOC charged Farkas with prohibited act *.259

because he failed to provide a urine specimen within two hours of the corrections

officer's order. After two postponements due to the medical monitoring of

Farkas and Farkas' request for a statement from the corrections officer involved

in the incident, the DOC held a disciplinary hearing on July 1, 2016. At this

hearing, Farkas was assisted by counsel-substitute.

A-5331-15T4 2 At the disciplinary hearing, Farkas stated that he had informed the

corrections officer that if he was forced to urinate standing up, he would defecate

on himself. Farkas further claimed that the corrections officer informed him

that he was required to produce a sample while standing. Additionally, in

response to Farkas' request for a statement, the corrections officer provided a

written statement indicating that Farkas never informed the officer that he had

to use the bathroom and that the officer "never told [Farkas] to stand the [w]hole

time." At the hearing, Farkas declined to call any witnesses on his own behalf

or confront any adverse witnesses. The disciplinary hearing officer found

Farkas guilty of prohibited act *.259, finding that the corrections officer did not

prevent Farkas from using the bathroom before giving his sample, as long as he

provided a sample within the two-hour limit. Farkas was sanctioned to ninety-

five days of administrative segregation, ninety-five days loss of commutation

time, ten days loss of recreation privileges, 365 days of random urine

monitoring, and the loss of contact visits.

Farkas administratively appealed the hearing officer's decision, with the

assistance of counsel-substitute, based on a plea of leniency. On July 1, 2016,

the DOC upheld the sanctions, finding that "[t]he sanction imposed by the

Hearing Officer is appropriate for the infraction therefore no leniency will be

considered." Farkas now seeks review of the DOC's final agency decision.

A-5331-15T4 3 On this appeal, Farkas raises a variety of arguments and seeks to vacate

the DOC's finding of guilt. First, Farkas contends the corrections officer acted

arbitrarily, capriciously, or unreasonably by failing to take into account that he

was taking medications that inhibited his ability to urinate. Second, Farkas

argues that the corrections officer's refusal to allow Farkas to evacuate his

bowels prior to providing a urine specimen was arbitrary, capricious, or

unreasonable and violated appellant's right to be treated in a courteous and

respectful manner under N.J.A.C. 10A:3-5.11(h). Third, Farkas asserts that the

DOC was required to conduct polygraph examinations of all relevant parties and

to provide the video surveillance tape of the incident. Finally, Farkas contends

the sanctions imposed were excessive and requests that the DOC reinstate his

contact visits.

We initially address Farkas' argument that actions of the corrections

officer were arbitrary, capricious, or unreasonable, such that the finding of guilt

should be vacated. Our scope of review of prison disciplinary decisions is

limited. See Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App.

Div. 2010). We will uphold an administrative decision to impose disciplinary

sanctions unless the inmate shows that the decision is arbitrary, capricious or

unreasonable, or is not supported by substantial, credible evidence in the record.

See ibid. "Substantial evidence" is "such evidence as a reasonable mind might

A-5331-15T4 4 accept as adequate to support a conclusion." In re Hackensack Water Co., 41

N.J. Super. 408, 418 (App. Div. 1956). Under the substantial evidence standard,

an agency may apply its expertise when the evidence supports more than one

conclusion. See In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.

1990) (citation omitted).

In this case, the hearing officer credited the corrections officer's statement

that he did not prevent Farkas from using a toilet prior to providing the urine

sample. Farkas declined to confront or cross-examine the corrections officer.

Thus, we find that the officer's statement constitutes substantial evidence that

supports the DOC's finding that the corrections officer did not prevent Farkas

from using the toilet prior to providing a urine sample. We therefore reject

Farkas' contentions that the correction officers acted arbitrarily, capriciously,

and unreasonably and that his finding of guilt should be vacated.

Concerning Farkas' arguments regarding medications, polygraph

examinations, and video surveillance, because Farkas failed to raise these issues

during the administrative adjudications, we decline to consider them for the first

time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973);

In re Stream Encroachment Permit, 402 N.J. Super. 587, 602 (App. Div. 2008).

"[O]ur appellate courts will decline to consider questions or issues not properly

presented to the [tribunal below] when an opportunity for such a presentation is

A-5331-15T4 5 available 'unless the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest.'" Nieder, 62 N.J. at 234

(quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div.

1959)).

In this case, Farkas failed to raise the issues of medications, polygraph

examinations, and video surveillance during the disciplinary hearing.

Additionally, Farkas did not raise these arguments in his administrative appeal

to the DOC. Indeed, neither the hearing officer’s decision nor the DOC’s final

agency decision discusses these issues. Because these arguments do not

implicate the jurisdiction of the administrative tribunal or matters of great public

interest, we decline to consider them on this appeal. See Nieder, 62 N.J. at 234.

Finally, we reject Farkas' claim that the sanctions imposed were excessive.

The sanctions imposed are within the guidelines set forth in N.J.A.C. 10A:4-5.1

for a finding of guilt of prohibited act *259. See N.J.A.C 10A:4-5.1(g) (up to

180 days of administrative segregation and up to 365 days loss of commutation

time); N.J.A.C. 10A:4-5.1(o) (termination of contact visits); N.J.A.C. 10A:4-

5.1(s) (up to 180 days loss of recreation privileges).

The remaining issues raised by Farkas lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1(D) and (E).

Affirmed.

A-5331-15T4 6