JOSHUA HALTER VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4117-19
JOSHUA HALTER,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________
Submitted April 13, 2021 – Decided May 27, 2021
Before Judges Moynihan and Gummer.
On appeal from the New Jersey Department of
Corrections.
Joshua Halter, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Tasha Marie Bradt, Deputy
Attorney General, on the brief).
PER CURIAM
While incarcerated, Joshua Halter was ordered to submit a urine sample
after synthetic marijuana was found in his cellmate's sock. He appeals a final
decision of the New Jersey Department of Corrections (NJDOC), finding he
committed prohibited act *.259 (failure to comply with an order to submit a
urine sample for prohibited-substance testing).1 He argues the hearing officer's
determination, which was upheld by the assistant superintendent, was not
supported by substantial evidence and that his due-process rights were violated
because he was not given two hours to produce a urine sample. We reverse
because we cannot conclude from the record the disciplinary hearing officer
considered all the evidence before her.
On March 27, 2020, at 9:00 a.m., an NJDOC officer observed Halter's
cellmate acting suspiciously. The officer "pat searched" the cellmate and found
two yellow pills in his pockets. The cellmate was searched again in a holding
cell. When the cellmate removed his left sock, two packages wrapped in paper
fell on the floor. The cellmate admitted the packages contained synthetic
1
See N.J.A.C. 10A:4-4.1(a)(2)(xxvi). Prohibited acts preceded by an asterisk
"are considered the most serious and result in the most severe sanctions."
N.J.A.C. 10A:4-4.1(a).
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2
marijuana, a controlled dangerous substance. Halter and their cell were
searched; no prohibited substances were found.
At 9:15 a.m., the NJDOC officer gave Halter a written order requiring him
to provide a urine sample of at least thirty milliliters2 for drug testing. The order
advised Halter that if he provided a smaller sample, he could be charged with
prohibited act *.259. The order also informed Halter he had to provide a sample
within two hours 3 or he could be charged with prohibited act *.258 (refusing to
submit to testing).4 At 10:15 a.m. the NJDOC officer requested approval for
"pre-hearing disciplinary housing placement" for Halter. He checked the
following reason for the request: "inmate has received a disciplinary charge and
. . . there is a substantial possibility that the inmate will attempt to harm,
threaten, or intimidate potential witnesses or that the inmate will attempt to
organize or encourage others to harm, threaten, or intimidate potential
witnesses." The request was granted. According to the NJDOC officer, Halter
2
A urine sample must be a minimum of thirty milliliters "to ensure a sufficient
quantity for all required testing." N.J.A.C. 10A:3-5.11(f)(1).
3
See N.J.A.C 10A:3-5.11(i) (requiring an inmate be given a "reasonable
physical opportunity" to comply with an order to submit a specimen and stating
a "two-hour period from the time of the initial order" is "a reasonable physical
opportunity" for "purposes of urine testing").
4
See N.J.A.C. 10A:4-4.1(a)(2)(xxv).
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ultimately "failed to provide a urine sample" within the two-hour time limit and
was charged with committing prohibited act *.259.
The next day, Halter was served with the disciplinary report containing
the *.259 charge. Because he was charged with an asterisk offense, he had the
right to request representation by a counsel substitute pursuant to N.J.A.C.
10A:4-9.12. Halter requested and was given the assistance of a counsel
substitute and pleaded not guilty.
The disciplinary hearing took place three days later. In support of the
charge, NJDOC submitted: the order to provide a urine sample; a seizure-of-
contraband report regarding Halter's cellmate; a request from the hearing officer
to "medical," asking "was he on any medication that would prevent him from
urinating?"; an email asking if Halter was "on any medication, or [had] any
medical condition, that would prevent him from providing a urine sample within
[two] hours" and a responding email from a doctor stating Halter did not suffer
from any medical condition and was not prescribed any medication that would
prevent him from producing urine in two hours; the preliminary incident report;
the authorization form for prehearing disciplinary housing placement; a March
27, 2020 NJDOC medical report; and the disciplinary report stating the
"infraction" took place at 11:20 a.m. NJDOC also submitted a "continuity of
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evidence – on-site urine/saliva specimen testing" report. The person who
completed the report stated the "[d]evice bag" was "inspected and opened" on
March 27 and wrote a time next to the date. A reasonable factfinder could
conclude the time was written as 11:10 a.m., or 11:20 a.m. or was changed from
11:10 a.m. to 11:20 a.m. The report contains a line for "[t]ime collected," which
was left blank. The report also contains multiple lines for the printed names and
signatures of NJDOC staff witnessing the collection, sealing, and reading of the
specimen; all were left blank.
Halter provided the hearing officer with a statement, acknowledging he
was told he had to provide a urine sample because of something his cellmate had
done. Halter claimed: he had tried but "couldn't go because of his medication";
after the NJDOC officer had left the room and returned, he did not give Halter
another opportunity to provide a sample; and the NJDOC officer did not give
Halter two hours to produce a thirty-milliliter urine sample. Halter requested a
statement from his cellmate, who said "I don't know nothing."
A typewritten version of the "adjudication of disciplinary charge" (ADC)
form indicated three pages of "confrontation questions" were admitted into
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evidence.5 A handwritten version completed by the hearing officer states
"asked, none requested." 6 The record does not include any confrontation
questions or answers. Counsel substitute signed the handwritten ADC form,
confirming the information on the form "accurately reflects what took place at
the inmate disciplinary hearing."
Determining the evidence supported the charge, the hearing officer
concluded Halter was guilty of the *.259 charge. The hearing officer found the
order for the urine sample was given at 9:15 a.m., the "charge was written" at
11:20 a.m., and Halter had "no evidence to discredit [the] staff." She sanctioned
Halter to 150 days of administrative segregation, 90 days of loss of
communication, 365 days of urine monitoring, 10 days of loss of recreation, and
permanent loss of contact visiting privileges. Noting Halter's previous
5
An inmate may request to confront NJDOC's witnesses by written questions.
N.J.A.C. 10A:4-9.14.
6
Other discrepancies exist between the typewritten and handwritten versions of
the form. Both forms indicate the hearing was adjourned once for medical
reasons. The typewritten version states the hearing was adjourned again for
"confrontation." The handwritten version states notice of the disciplinary charge
was delivered on March 28, 2020; the typewritten version states it was delivered
on February 5, 2020.
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disciplinary history, 7 the hearing officer levied those sanctions on Halter to
"deter" inmates "from failing to comply with [an] order to submit to testing for
prohibited substances and to promote a safe and secure facility."
Halter administratively appealed the decision, asserting he has trouble
urinating because of "chronic health issues" and medication he takes but "made
every effort" to comply with the order; after struggling with being able to
urinate, he was able to provide a urine sample but was told by the NJDOC officer
it did not meet the minimum thirty-milliliter standard required by N.J.A.C.
10A:3-5.11(f)(1); while he was attempting to void his sample, the NJDOC
officer standing behind him was "being belligerent, kept rushing me, and finally
grabb[ed] my shoulder at one point telling me that I was done" in violation of
N.J.A.C. 10A:3-5.11(h), which requires "[a]ll testing shall be accomplished in a
professional and dignified manner with maximum courtesy and respect for the
inmate's person"; and although the NJDOC officer had told him he had an hour
left to provide the sample, he "never returned until they finally came to place
me in restraints and tell me that I was receiving a charge for failing to void ,"
7
In 2019, Halter was found guilty of violating prohibited act *.204. See
N.J.A.C. 10A:4-4.1(a)(2)(xvi) (use of any prohibited substances such as drugs,
intoxicants, or related paraphernalia not prescribed for the inmate by the medical
or dental staff).
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thus violating his due-process right to a full two hours to comply with the order
as required by N.J.A.C. 10A:3-5.11(i)(1). The assistant superintendent upheld
the hearing officer's decision, finding NJDOC was "in compliance with
procedural safeguards," the "sanction is appropriate to the charge," and leniency
would not be afforded to Halter.
On appeal, Halter argues he was deprived of due process because he was
not given two hours to provide a sample and because of that due-process
violation, the hearing officer could not reasonably conclude substantial evidence
supported a finding Halter had failed to comply with the order to provide a
sample. In response, NJDOC argues Halter had the assistance of a counsel
substitute and had been given the opportunity to make a statement and review
all the evidence considered and that the hearing officer's finding of guilt was
supported by substantial credible evidence in the record.
Our review of an administrative agency's final decision is limited.
Commc'ns Workers of Am., AFL-CIO v. N.J. Civ. Serv. Comm'n, 234 N.J. 483,
515 (2018). We will not reverse an agency's decision unless "(1) it was arbitrary,
capricious, or unreasonable; (2) it violated express or implied legislative
policies; (3) it offended the State or Federal Constitution; or (4) the findings on
which it was based were not supported by substantial, credible evidence in the
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record." Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Env't Prot.,
191 N.J. 38, 48 (2007).
In an appeal from a final NJDOC decision in a prisoner disciplinary
matter, we consider whether there is substantial evidence in the record to support
the decision the inmate committed the prohibited act. Blanchard v. N.J. Dep't
of Corr., 461 N.J. Super. 231, 237-38 (App. Div. 2019); see also N.J.A.C. 10A:4-
9.15(a) ("finding of guilt at a disciplinary hearing shall be based upon substantial
evidence"). "Substantial evidence" has been defined as "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); see also
Figueroa v. N.J. Dep't of Corrs, 414 N.J. Super. 186, 192 (App. Div. 2010). We
also must consider whether, in making its decision, NJDOC followed the
departmental regulations governing disciplinary proceedings, which were
adopted to afford inmates procedural due process. See McDonald v. Pinchak,
139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 219-22 (1995).
The hearing officer found Halter had "no evidence to discredit [the] staff."
Two pieces of evidence in the record potentially raise questions as to whether
Halter received two hours to produce a sample: the authorization form for
prehearing disciplinary housing placement, which was submitted at 10:15 a.m.
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when Halter still had an hour left to comply with the 9:15 a.m. order, and the
unsigned "continuity of evidence" report, with the unclear handwritten time.
It is possible the hearing officer considered the times in the authorization
form and "continuity of evidence" report and determined the NJDOC officers
were more credible than Halter. But she made no express credibility
determinations in her decision and did not address the times contained in the
authorization form and "continuity of evidence" report. Thus, we cannot discern
whether she considered all of the evidence before her.
Our deference to an agency decision is not limitless. We are not required
to forgo
a careful review of administrative decisions simply
because an agency has exercised its expertise. We
cannot accept without question an agency's conclusory
statements, even when they represent an exercise in
agency expertise. The agency is "obliged . . . 'to tell us
why.'" In re Valley Hosp., 240 N.J. Super. 301, 306
(App. Div. 1990) (quoting Drake v. Human Servs.
Dep't, 186 N.J. Super. 532, 538 (App. Div. 1982)),
certif. denied, 126 N.J. 318 (1991).
We have repeatedly stated that while an administrative
decision is entitled to deference, we will not
perfunctorily review and rubber stamp the agency's
decision. Blackwell v. Dep't of Corr., 348 N.J. Super.
117, 123 (App. Div. 2002) (citing Williams v. Dep't of
Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).
Instead, we insist that the agency disclose its reasons
for any decision, even those based upon expertise, so
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that a proper, searching, and careful review by this
court may be undertaken.
[Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199,
202-03 (App. Div. 2003).]
Accordingly, we reverse because the hearing officer did not fully state her
findings regarding her consideration of all of the record evidence. On remand,
the disciplinary hearing officer shall consider all of the evidence and issue a
supplemental decision setting forth her credibility determinations and
addressing the information contained in the authorization form for prehearing
disciplinary housing placement and "continuity of evidence" report.
Reversed and remanded. We do not retain jurisdiction.
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