TIVON NEALS v. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

NOT FOR PUBLICATION WITHOUT THE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-2344-20
TIVON NEALS,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted September 20, 2022 – Decided October 18, 2022
Before Judges Sumners and Susswein.
On appeal from the New Jersey Department of
Corrections.
Tivon Neals, appellant pro se.
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Donna Arons, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
State prison inmate Tivon Neals appeals from a final agency decision by
the Department of Corrections (DOC) affirming his administrative conviction
for refusing to submit to mandatory COVID-19 testing. Neals argues that DOC
violated his due process rights, contending that he could not be found guilty of
violating prison rules and regulations because COVID-19 testing was not
required by statute, regulation, or court order, and he was not provided with
written notice that such testing was mandatory. Neals also argues that his
administrative conviction was not supported by substantial evidence. After
carefully reviewing the record, we affirm the agency decision.
I.
We discern the following pertinent facts and procedural history from the
record. On March 10, 2021, Assistant DOC Commissioner Willie Bonds sent
an e-mail to DOC administrative staff with the subject line "COVID Test
Refusals." That email explained DOC's mandatory COVID-19 testing program
and the consequences of refusing a COVID-19 test. The e-mail stated:
In order [to] ensure department-wide consistency and
protect effectiveness of our mandatory COVID testing
program the following steps will be taken when an
inmate refuses his/her COVID test:
1. The inmate will be counseled by Medical staff
regarding the purpose of the test and address any
medical questions or concerns the inmate may have.
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2. If the inmate still refuses they are to be issued a direct
order by Custody staff to submit to the test.
3. If the inmate still does not comply they will be placed
in Quarantine status for a 14-day period, and issued a
.260 disciplinary charge for refusing to submit to
mandatory medical or other testing such as, but not
limited to, mandatory testing required by law or court
order.
On March 11, 2021, Nurse Supervisor Scarborough informed Neals that
COVID-19 testing was required and that he could no longer sign a waiver to
decline testing as had been previously allowed. When asked if he would submit
to testing, Neals initially responded that he would first have to check with his
attorney. Nurse Scarborough counseled Neals regarding refusal to submit to
testing and explained the purpose of quarantine housing. Lieutenant Boyle also
informed Neals that the COVID-19 saliva test was mandatory and again asked
him whether he would take the test. Neals "verbalized understanding and
advised that he would submit to testing."
Later that day, Nurse Frederic-Caldwell went to Neals's housing wing to
administer the test, but Neals refused. Neals signed a refusal form. Due to his
refusal to submit to COVID-19 testing, Neals was placed in quarantine and
charged with committing a violation of N.J.A.C. 10A:4-4.1(a)(2)(xxviii)
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(*.260),1 refusing to submit to mandatory medical or other testing such as, but
not limited to, mandatory testing required by law or court order.
On March 12, 2021, Sergeant Daley served the charge on Neals,
conducted an investigation, and referred the charge to a hearing officer for
further action. Neals requested and was granted the assistance of a counsel
substitute. The disciplinary hearing was convened on March 16, 2021, at which
Neals pled not guilty. Neals's counsel substitute submitted a written statement
requesting dismissal of the charge, arguing that the record did not indicate that
COVID-19 testing was in fact mandatory and thus Neals could not commit a
violation of refusing mandatory testing. Neals gave a statement at the hearing
asserting that "[a]ll [he] wanted was something in writing," and that he had "no
problem complying with the written rule if there is a written rule." Neals was
offered but declined the opportunity to call witnesses on his behalf at the
hearing. He was also offered but declined the opportunity to confront adverse
witnesses.
1
This infraction is an "asterisk offense." "Under DOC regulations on inmate
discipline, N.J.A.C. 10A:4-4.1, '[a]sterisk offenses' are prohibited acts
considered to be the most serious violations, resulting in the most severe
sanctions." Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div.
2007).
A-2344-20
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The hearing officer found Neals guilty and sanctioned him to forty-five
days in the Restorative Housing Unit and thirty days loss of recreation
privileges. In finding Neals guilty, the hearing officer relied on reports
submitted by Lieutenant Boyle and Nurse Scarborough, as well as the email
from Assistant Commissioner Bonds. The hearing officer noted that Neals
offered no evidence to discredit the staff reports. The hearing officer also
considered but rejected the argument set forth in the written statement submitted
by Neals's counsel substitute.
Neals administratively appealed the hearing officer's decision. On March
17, 2021, Assistant Superintendent Russo upheld the guilty finding and the
sanctions imposed. Assistant Superintendent Russo determined that "there was
compliance with [the] Title 10A provision on inmate discipline which
prescribe[s] procedural due process safeguard[s]." He also concluded that there
was substantial evidence to support the hearing officer's findings and that the
sanctions were appropriate for the infraction. Neals's request for a reduced or
suspended sanction, as well as his plea of leniency, were denied.
This appeal follows. Neals raises the following contentions for our
consideration:
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POINT I
THE AGENCY'S FINDING OF GUILT SHOULD BE
VACATED AND DISMISS[ED] FOR FAILURE TO
PROVIDE APPELLANT WRITTEN NOTICE
WHERE NO STATUTE, REGULATION, OR COURT
ORDER MANDATED WEEKLY SALIVA TESTS
FOR INMATES.
POINT II
THE AGENCY'S FINDING OF GUILT SHOULD BE
VACATED AND DISMISS[ED] WHERE THE
HEARING OFFICER DID NOT IDENTIFY
SUBSTANTIAL EVIDENCE APPELLANT
REFUSED TO SUBMIT TO A MANDATED
WEEKLY COVID-19 SALIVA TEST.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. The scope of our review is narrow. We will disturb an agency's
adjudicatory decision only upon a finding that the decision is "arbitrary,
capricious or unreasonable," or is unsupported "by substantial credible evidence
in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579–80
(1980) (citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)). In
determining whether an agency action is arbitrary, capricious, or unreasonable,
a reviewing court must examine:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
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follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482–83 (2007) (quoting
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
In an appeal from a final decision in a prisoner disciplinary matter, we
consider whether there is substantial evidence in the record to support the
department's decision that the inmate committed the prohibited act. Blanchard
v. N.J. Dep't of Corr., 461 N.J. Super. 231, 237–38 (App. Div. 2019) (citing
Henry, 81 N.J. at 579–80 (1980)). "Substantial evidence has been defined
alternately as 'such evidence as a reasonable mind might accept as adequate to
support a conclusion,' and 'evidence furnishing a reasonable basis for the
agency's action.'" Id. at 238 (quoting Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186, 192 (App. Div. 2010)); see also N.J.A.C. 10A:4-9.15(a) ("A finding
of guilt at a disciplinary hearing shall be based upon substantial evidence that
the inmate has committed a prohibited act.").
The adjudicative determinations of an administrative agency are entitled
to deference and "carry with them a presumption of reasonableness." Figueroa,
414 N.J. Super. at 191. "An appellate court may not reverse an agency's
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determination 'even if [the] court may have reached a different result had it been
the initial decision maker.''' Ibid. (quoting Circus Liquors, Inc. v. Governing
Body of Middletown Twp., 199 N.J. 1, 10 (2009)). However, "our review is not
'perfunctory,' nor is 'our function . . . merely to rubberstamp an agency's
decision.'" Blanchard, 461 N.J. Super. at 239 (quoting Figueroa, 414 N.J. Super.
at 191). Rather, "[w]e are constrained to engage in a 'careful and principled
consideration of the agency record and findings.'" Ibid. (quoting Williams v.
N.J. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).
Our deference to the adjudicatory decisions made by DOC is especially
appropriate in view of that agency's important mission to protect the health,
safety, and welfare of inmate populations, as well as ensuring the safety of all
individuals within DOC facilities. See Russo v. N.J. Dep't of Corr., 324 N.J.
Super. 576, 584 (App. Div. 1999) ("Prisons are dangerous places, and the courts
must afford appropriate deference and flexibility to administrators trying to
manage this volatile environment."). DOC has a compelling interest in
controlling the spread of COVID-19 by detecting and isolating inmates who are
infected with the virus.
As our Supreme Court made clear in Avant v. Clifford, inmates are
afforded due process rights in disciplinary proceedings. 67 N.J. 496, 525–33
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(1975); see also McDonald v. Pinchak, 139 N.J. 188, 193–94 (1995). As the
Supreme Court noted in McDonald, the regulatory framework for adjudicating
charges "strike[s] the proper balance between the security concerns of the
prison, the need for swift and fair discipline, and the due process rights of the
inmates." 139 N.J. at 202.
In Avant, the Court stressed that "[t]he first requirement of procedural due
process is notice," both of specific violations and "general notice of prison rules,
offenses, sanctions." 67 N.J. at 525. Such general notice is afforded by means
of the Handbook on Discipline that is provided to each inmate upon his or her
reception into the prison system. N.J.A.C. 10A:4-2.1(a). Inmates are thereby
"advised in writing of their rights and responsibilities, the acts and activities
which are prohibited, the rules which must be followed and the disciplinary
process within the correctional facilities of the Department of Corrections."
Ibid. The regulation further provides that, when changes are made to the
disciplinary rules, notice must be provided by means of written postings " in
housing units and other areas of the correctional facility," and the changes shall
be "incorporated into the next revision of the Handbook on Discipline and when
appropriate, in the correctional facility Inmate Handbook." N.J.A.C. 10A:4-
2.1(c).
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The Inmate Discipline Program, established in N.J.A.C. 10A, identifies
specific prohibited acts and provides a schedule of sanctions for violations of
the rules. See N.J.A.C. 10A:4-4.1(a). The rule at issue in this case is codified
at N.J.A.C. 10A:4-4.1(a)(2)(xxviii) (*.260), which requires inmates to "submit
to mandatory medical or other testing such as, but not limited to, mandatory
testing required by law or court order." Ibid. (emphasis added).
III.
We first address Neals's contention that DOC violated his due process
rights by sanctioning him for refusing to submit to COVID-19 testing because
such testing was not explicitly required by statute, regulation or court order, and
because inmates did receive written notice that such testing was mandatory.
These arguments lack merit. We agree with DOC that COVID-19 testing of
inmates was mandatory, at least as of March 10, 2021, as reflected in Assistant
Commissioner Bonds's e-mail to DOC staff. DOC staff verbally informed Neals
that testing was mandatory prior to his refusal and charging him with prohibited
act *.260. Neals was counseled regarding the purpose of mandatory testing as
well as the consequences of his refusal. That was sufficient to provide notice to
Neals that COVID-19 testing constituted "mandatory medical testing" for
purposes of N.J.A.C. 10A:4-4.1(a)(2)(xxviii) (*.260).
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The plain text of the rule makes clear that the requirement to submit to
mandatory testing is not limited to testing required by law or court order.
N.J.A.C. 10A:4-4.1(a)(2)(xxviii) (*.260). There is no requirement that DOC
adopt a rule or regulation that is specific to each type of medical test that may
be administered to inmates. Nor is there a requirement in the regulation that
inmates receive written notice of each mandated test. It was sufficient that Neals
was verbally informed that COVID-19 testing was a mandatory medical test.
We thus conclude that the administrative prosecution for violation of N.J.A.C.
10A:4-4.1(a)(2)(xxviii) (*.260) did not violate Neals's due process rights.
IV.
We turn next to Neals's contention that the hearing officer's decision was
not supported by substantial evidence. As we have noted in Blanchard,
substantial evidence is defined as "such evidence as a reasonable mind might
accept as adequate to support a conclusion," and "evidence furnishing a
reasonable basis for the agency's action." 461 N.J. Super. at 239 (quoting
Figueroa, 414 N.J. Super. at 192); see also N.J.A.C. 10A:4-9.15(a) ("A finding
of guilt at a disciplinary hearing shall be based upon substantial evidence that
the inmate has committed a prohibited act.").
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The record indicates that DOC staff verbally informed Neals that testing
was mandatory prior to his refusal and charging him with prohibited act *.260.
Neals was counseled regarding the purpose of mandatory testing as well as the
consequences of his refusal. The record shows that when Nurse Frederic-
Caldwell went to Neals's housing wing later that day to administer the test, Neals
refused to submit to testing. The record reflects that Neals signed a refusal form.
This evidence amply establishes the violation.
Finally, we address Neals's argument that he did not outright refuse to
submit to the COVID-19 test, but instead sought to consult with his attorney
prior to deciding whether to submit to the testing. We agree with DOC that
Neals did not have a right to consult with counsel prior to submitting to testing.
Neals cites no authority for the proposition that he had any such right to confer
with counsel. We add that such consultations would entail a delay in
administering COVID-19 tests that would frustrate the purpose of testing. Neals
was properly advised that he had no authority to refuse to submit to COVID -19
testing and nonetheless refused to comply, as clearly evidenced by the refusal
form he signed.
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To the extent we have not addressed them, any remaining contentions
raised by Neals lack sufficient merit to warrant discussion in a written opinion.
See R. 2:11-3(e)(1)(E).
Affirm.
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