MILDALIA MADLINGER VS. NEW JERSEY TRANSIT CORPORATION (L-4844-14, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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
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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."
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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
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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.
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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
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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.
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