Opinion
DOCKET NO. A-0148-11T4
09-28-2012
KARRIEM NUNALLY, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Karriem Nunally, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and St. John.
On appeal from the New Jersey Department of Corrections.
Karriem Nunally, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief). PER CURIAM
Karriem Nunally, an inmate currently confined in Northern State Prison, appeals from the August 2, 2011 final determination of the Department of Corrections (DOC) after administrative proceedings during which he entered a guilty plea to prohibited act *.205 (misuse of authorized medication) in violation of N.J.A.C. 10A:4-4.1(a). He also appeals from the sanctions imposed: fifteen days detention with credit for time served, 183 days of administrative segregation of which 182 days were suspended for sixty days, 365 days loss of commutation time, and 365 days of random drug testing.
On July 19, 2011, Senior Corrections Officer Ronnie Perry reached into Nunally's bulging right front pocket and removed a pill dispensing cup wrapped in clear plastic, containing thirteen Vicodin and six Benadryl tablets. In accordance with prison protocol, such medications are to be consumed in the presence of the medical staff, and Vicodin pills are to be crushed on the spot before consumption.
A report prepared that same date by the Director of Custody Operations C. Prestien-LaPenta states that the day prior, Nunally's medications had been discontinued because authorities discovered he was hoarding them. On July 20, charges were served upon him and the matter was referred to a hearing officer.
The hearing was initially scheduled on July 25, 2011, but was postponed so the hearing officer could obtain photographs of the seized item. The matter concluded the following day after Nunally, with the assistance of counsel substitute, entered a guilty plea.
Nunally administratively appealed the decision and the sanctions, resulting in the reduction of the administrative segregation days from 365 to 183, of which 182 were suspended for sixty days.
Nunally raises the following issues for our consideration:
POINT ONE
THE DEVIATION FROM THE REQUIREMENT THAT INMATE[S] IN PREHEARING DETENTION SHOULD RECEIVE A HEARING WITHIN THREE CALENDAR DAYS OF THEIR PLACEMENT IN PREHEARING DETENTION FROM ALLEGED [IN]FRACTION WAS VIOLATED BY THE DEPARTMENT OF CORRECTIONS ACCORDING TO N.J.A.C. 10A:4-9.8(c), (d) AND (e).
POINT TWO
THE AGENCY'S DISPOSITION OF THE CHARGE DEVIATED FROM PROCEDURAL STANDARDS AND VIOLATED APPELLANT'S DUE PROCESS PROTECTION AS AFFORDED BY [N.J.A.C.] 10A:4-9.1(a).
POINT THREE
THE AGENCY'S DISPOSITION OF DISCIPLINARY PROCEDURES CREATED ATYPICAL AND SIGNIFICANT HARDSHIP UPON APPELLANT'S LIBERTY INTEREST WHICH VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS.
With regard to his first point, we note that N.J.A.C. 10A:4-9.9(a) provides that the "failure to adhere to any of the
time limits . . . shall not mandate the dismissal of a disciplinary charge." This means that Nunally's first argument, that the outcome of the proceedings should be vacated because of the failure to conduct the hearing within three calendar days of his being placed in pretrial detention, must fail. There was no impropriety in any delay, which in this case was minimal.
Our role in reviewing the decision of an administrative agency, such as the Prison Administrator in this case, is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will affirm an administrative agency decision unless on appeal we conclude it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. See In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Indeed, such decisions carry a presumption of reasonableness. Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).
Nunally has not directed our attention to anything in the record that establishes that his guilty plea to the prohibited act of the misuse of authorized medication was the product of a violation of the procedural requirements of Avant v. Clifford, 67 N.J. 496, 528-32 (1975), as subsequently codified in N.J.A.C. 10A:4-9.1 to -9.28, nor has he directed our attention to any violation of his due process rights generally. Therefore, this argument also lacks merit.
Nunally also fails to identify any error committed in the Prison Administrator's decision to impose the modified sanctions. They are consistent with governing regulations. See N.J.A.C. 10A:3-5.10(b)(10), :4-5.1(a). They are well within the DOC's broad discretion. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999). Therefore there is no basis to reverse the Prison Administrator's decision.
We are satisfied that the DOC's ultimate determination in this matter is sufficiently grounded in substantial credible evidence, Henry, supra, 81 N.J. at 579-80, and that the administrative adjudication comported with procedural due process. See Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION