JOHN FARKAS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
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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.
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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
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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
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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.
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