MILDALIA MADLINGER VS. NEW JERSEY TRANSIT CORPORATION (L-4844-14, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 30, 2017
• Docket: A-2310-16T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2310-15T4

JAMMIE SKAZENSKI,

Appellant, v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

Submitted April 25, 2017 – Decided May 5, 2017

Before Judges Reisner and Mayer.

On appeal from the New Jersey Department of Corrections.

Jammie Skazenski, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex Zowin, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Jammie Skazenski, presently an inmate at Northern

State Prison, appeals from the January 19, 2016 disposition of

disciplinary appeal issued by the New Jersey Department of Corrections (DOC). The DOC upheld a disciplinary hearing officer's

decision, dated December 29, 2015, finding that Skazenski

committed prohibited act *.204 (use of prohibited substance). We

affirm.

Based upon information from a confidential informant, the

prison learned inmates, including Skazenski, were using drugs in

contravention of prison rules. To maintain the safety and security

of prisons, there must be assurance that drugs or illegal

substances are not present. See Jackson v. Dep't of Corrections,

335 N.J. Super. 227, 233-34 (App. Div. 2000), certif. denied, 167

N.J. 630 (2001). Consequently, prisons may require urine samples

from inmates. See Hamilton v. N.J. Dep't of Corrections, 366 N.J.

Super. 284, 291 (App. Div. 2004). Because Skazenski was suspected

of illegal drug use, he was required to provide a urine sample.

Appellant claims that on December 1, 2015, he provided an

initial urine sample which tested negative. He also alleges that

on December 2, 2015, the prison required a second urine sample

without a reasonable factual basis. According to appellant, the

prison improperly handled and improperly labeled his second urine

sample.

According to the DOC's evidence, only one sample was taken -

on December 2 - and that sample tested positive for drug use. A

2 A-2310-15T4 notice of violation for commission of prohibited act *.204 was

issued based upon that positive urine test.

Appellant alleged that the prison confused his December 2

urine sample with that of another inmate. He contended that the

disciplinary report issued to him identified "Inmate Vazquez,

Edwin" in the body of the report. Appellant further argued that

the time listed on the second sample indicated he voided eight

minutes prior to the time he claims that he voided.

Because of those issues, the DOC hearing officer postponed

the hearing to address the discrepancies in the disciplinary report

issued to plaintiff. The hearing officer accepted the prison's

explanation that insertion of another inmate's name in the

disciplinary report was a clerical error, resulting from the use

of a "template" for issuance of the report. The corrections

officer issuing the disciplinary report explained he failed to

change the name in the body of the charge, which contained language

taken from a charge issued to another inmate. The hearing officer

found Skazenski's name and SBI number were correctly identified

in the top section of the disciplinary report. Concerning the

timing of the alleged second sample, the "continuity of evidence"

form signed by Skazenski indicated his sample was collected at

"11:33 AM" and the disciplinary report indicated the sample was

collected at "1133 hours."

3 A-2310-15T4 Upon determining there was no mislabeling or other mistake

concerning the second sample, the hearing officer found Skazenski

committed prohibited act *.204. The resulting sanctions included

segregation, daily urine monitoring, loss of commutation credits,

loss of recreation time, and loss of contact visits. Skazenski

filed an administrative appeal from the hearing officer's guilty

finding. In a written report dated January 19, 2016, the DOC

denied the appeal and affirmed the hearing officer's findings and

sanctions.

Skazenski presents two arguments on this appeal. First, he

claims the purported second urine test violated N.J.A.C. 10A:3-

5.10(b)(8) as no factual basis was provided to support a second

sample. Second, he argues a denial of due process and a fair

hearing because he lacked access to evidence related to the

disciplinary hearing.

Prison disciplinary hearings are not criminal prosecutions,

and "thus the full panoply of rights due a defendant in such a

proceeding does not apply." Avant v. Clifford, 67 N.J. 496, 522

(1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct.

2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). Prisoners receive

limited due process protections. Ibid. The protections extended

to prisoners include written notice of the charges a minimum of

twenty-four hours prior to the hearing, an impartial tribunal to

4 A-2310-15T4 consider the charges, a limited right to call witnesses, assistance

of counsel substitute, and a right to a written statement of

evidence relied upon and the reasons for the sanctions imposed.

Id. at 525-33.

The scope of appellate review of an administrative agency's

final decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007).

Decisions by an agency will be upheld, unless the decision 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). Our review is

limited to whether the agency's findings could reasonably have

been reached based on substantial evidence in the record. In re

Taylor, 158 N.J. 644, 656 (1999). See also Avant, supra, 67 N.J.

at 530 (noting the substantial evidence standard applied to guilty

findings in DOC appeals).

During the disciplinary hearing, Skazenski had the

opportunity to present evidence and witnesses in support of his

allegations and to cross-examine adverse witnesses. Despite

having identified potential witnesses, he declined to present any

witnesses in his favor. He also declined to cross-examine adverse

witnesses. His evidence was limited to a written statement in

support of his claims.

5 A-2310-15T4 Appellant received the protections afforded to prisoners

subjected to disciplinary proceedings, including assistance of

counsel substitute, consistent with Avant, supra. His counsel

substitute requested a copy of the order to void, requested

leniency on behalf of Skazenski, and relied on the statement

previously provided by Skazenski. Appellant offered no evidence

contradicting the substantial evidence presented to the hearing

officer. "Substantial evidence" is "such evidence as a reasonable

mind might accept as adequate to support a conclusion." In re

Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956).

As previously noted, the prison received an anonymous call

that inmates in Skazenski's unit were using illegal substances.

This created the factual basis for urine testing consistent with

N.J.A.C. 10A:3-5.10(b). Skazenski was required to void a urine

specimen on December 2, 2015. The sample was closed, sealed and

labeled in his presence. The ID number on the sample he voided

was the same ID number on the continuity of evidence form.

According to the prison's continuity of evidence log, he only

voided for sampling once on December 2, 2015. No evidence was

presented to the hearing officer, other than Skazenski's own

written statement, substantiating the prison's collection of two

urine samples. He had an opportunity to call the prison officer

6 A-2310-15T4 who allegedly took the first urine sample but declined to call any

witnesses during the hearing.

Based on our review of the record, there was substantial

credible evidence to find Skazenski guilty of prohibited act *.204.

The DOC's decision comported with procedural due process. The

DOC's determination of guilt and the sanctions imposed were

supported by substantial credible evidence.

Affirmed.

7 A-2310-15T4