Opinion
DOCKET NO. A-4725-11T1
07-14-2014
THEODORE FRITTS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Theodore Fritts, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Erin M. Greene, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
On appeal from the New Jersey Department of Corrections.
Theodore Fritts, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Erin M. Greene, Deputy Attorney General, on the brief). PER CURIAM
Theodore Fritts, a prison inmate, appeals from the final agency decision of the Department of Corrections (DOC) that he committed prohibited act *.204 ("use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff"), in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
The charge was based on the presence of THC in a urine sample Fritts gave on April 2, 2012, while an inmate at East Jersey State Prison ("EJSP"). On that date, Fritts went to the infirmary at approximately 2:15 p.m. He asked to use the bathroom and was ordered to submit a urine sample for testing. DOC's continuity of evidence ("COE") form for "On-Site Urine Specimen Testing" states that the reason for the request was "probable cause." The order was given and signed by a Senior Corrections Officer, O. Mendoza. Fritts provided the requested sample, which was tested on site and revealed the presence of THC. The positive test results were verified by Sergeant T. O'Keefe, and Mendoza placed the urine specimen in an evidence refrigerator at 3:07 p.m. the same day. Fritts acknowledged on the COE form that the specimen was "closed, sealed and labeled in [his] presence."
Tetrahydrocannabinol (THC) is the active chemical in cannabis.
Fritts was transferred to Bayside State Prison ("BSP") on April 13, 2012.
Fritts's urine specimen was removed from the evidence refrigerator on April 25, 2012, and transferred to the New Jersey Department of Health & Senior Services. There, the results of a laboratory test confirmed the presence of THC in Fritts's urine. The test results were reported to EJSP on April 27, 2012.
BSP was first notified of Fritts's positive drug test by fax on May 9, 2012. BSP personnel charged Fritts the same day with use of a prohibited substance and placed him in prehearing detention.
A disciplinary hearing was scheduled for May 11, 2012, but postponed until May 14 and postponed again until May 16, 2012, pending receipt of the original COE form.
At his hearing, Fritts requested and was granted a counsel substitute. Fritts entered a not guilty plea. He did not make any statement regarding the disciplinary charge and declined the opportunity to call his own witnesses or confront adverse witnesses. His counsel substitute questioned why it took twenty-three days for the specimen to be sent to the laboratory and asked for an adjudication of not guilty on that ground.
Fritts was adjudicated guilty on the morning of May 16, 2012. The summary of evidence relied upon included the following note,
There is no time schedule as to when urine specimen[s] are picked up. According to COE specimen was taken to the lab 23 [days] after [inmate] void. There is no discrepancies as how to [sic] specimen was handle[d]."
The hearing officer imposed the following sanctions: 15 days' detention with credit for time served, 180 days' loss of commutation time, 180 days' administrative segregation, and 180 days' urine monitoring.
Fritts appealed the hearing officer's adjudication through the DOC's appeals process. Fritts's counsel substitute contended that the twenty-three day delay in submitting the urine sample for further analysis constituted a "violation of Standards," citing N.J.A.C. 10A:4-9.8, and violated due process. He argued further that Fritts should have been charged within forty-eight hours of the urinalysis report being returned to DOC and that the delay in filing charges until May 9, 2012, violated N.J.A.C. 10A:4-9.2, and did not have a hearing until seven days later.
The assistant superintendent upheld the hearing officer's decision and, as explanation, stated, "There is no violation of standards."
In this appeal, Fritts presents the following argument:
POINT I
THE LONG DELAYS IN HAVING THE URINE SPECIMEN TESTED (23) DAYS RECEIVING THE DISCIPLINARY CHARGE (12) DAYS AND RECEIVING THE DISCIPLINARY HEARING (7 DAYS) VIOLATED DUE PROCESS, WHEREFORE THE MATTER SHOULD BE REVERSED AND/OR REMANDED TO BACK TO THE
DEPARTMENT OF CORRECTIONS FOR FURTHER PROCEEDINGS.
Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999).
An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). The Supreme Court articulated the due process rights of an inmate facing prison disciplinary proceedings as: (1) the right to written notice of the charges at least twenty-four hours prior to the hearing, (2) the right to an impartial tribunal, (3) a limited right to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses, (5) the right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) in appropriate circumstances, the assistance of a counsel substitute. Id. at 525-33. None of these rights were denied Fritts here.
Fritts also contends that the adjudication should be reversed because DOC failed to comply with the time limits established by the applicable regulations. Specifically, he states DOC violated: N.J.A.C. 10A:4-9.2, which requires DOC to serve him with a disciplinary report "within 48 hours after the violation" in the absence of exceptional circumstances; N.J.A.C. 10A:4-9.8(c), which requires DOC to hold his hearing within three calendar days of his placement in prehearing detention; and N.J.A.C. 10A:4-9.15, which requires a guilty finding to be based upon substantial evidence. He also contends that the regulation which governs postponements for further investigation was violated. See N.J.A.C. 10:4-9.1.
DOC failed to adhere to the time limits set by N.J.A.C. 10A:4-9.2 and 10A:4-9.8(c). However, N.J.A.C. 10A:4-9.9(a) explicitly states, "The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." Although the Disciplinary Hearing Officer or Adjustment Committee retains discretion to dismiss a disciplinary charge because of a violation of time limits, the regulation requires the exercise of such discretion to be guided by the following factors: "1. [t]he length of the delay; 2. [t]he reason for the delay; 3. [p]rejudices to the inmate in preparing his/her defense; and 4. [t]he seriousness of the alleged infraction." Ibid.
The infraction alleged here was an asterisk offense, explicitly identified as "the most serious" of the prohibited acts. N.J.A.C. 10A:4-4.1. Fritts has not identified any prejudice he suffered in his defense against the charges as a result of the delays. Although no persuasive reason has been presented for the delays, they were not excessive. Therefore, a weighing of the applicable factors does not support a conclusion that DOC abused its discretion in failing to dismiss the charge due to its delays.
Fritts also argues that the guilty finding was not based upon substantial evidence because the "23 days delay in having the urine sample tested opened the door for far too many unanswered questions concerning the continuity of evidence that the urine tested actually belonged to" him. This argument ignores the fact that the urine sample taken from Fritts was tested contemporaneously and was found to contain THC, a result consistent with that of laboratory analysis. Defendant did not deny that the sample tested on April 2 was his and, in fact, acknowledged that it was closed, sealed and labeled in his presence on the COE form. We therefore conclude that the adjudication was based upon substantial evidence of Fritts's guilt of the disciplinary charge.
Affirmed.
I hereby certify that the foregoing is a true- copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION