                                NOT FOR PUBLICATION WITHOUT THE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-0618-18T1

GARY MADDOX,

         Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted November 20, 2019 – Decided December 11, 2019

                   Before Judges Koblitz and Mawla.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Gary Maddox, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Nicholas A. Sullivan, Deputy
                   Attorney General, on the brief).


PER CURIAM
      Gary Maddox is confined to prison, serving a lengthy term with a thirty-

year mandatory minimum term for leading a narcotics network and other related

charges. He appeals from a June 11, 2018 final decision of the New Jersey

Department of Corrections (DOC), finding him guilty of *.204, use of prohibited

drugs. N.J.A.C. 10A:4-4.1(a)(2)(xvi). As a result of the infraction, Maddox

received 150 days of administrative segregation, 210 days' loss of commutation

time, 365 days of urine monitoring, permanent loss of contact visits, 1 referral

for mental health care and thirty days' loss of JPay privileges. We affirm the

finding of the infraction, but vacate and remand the sanction for the DOC to

reconsider and supply appropriate reasons for the new sanction imposed.

      On April 23, 2018, the prison gave Maddox a urine test, which was

positive for opiates. Maddox accepted the assistance of a counsel substitute.

Maddox argued the prescribed drug he was taking, Benadryl, had caused a false

positive result. Because the DOC acknowledged the Benadryl could create a

false positive for methadone, his urine sample was then sent to an outside

laboratory, Atlantic Diagnostic Laboratories (Diagnostic). The Diagnostic test

results reflected the presence of morphine and hydrocodone.



1
  An inmate may apply to reinstate the permanent loss of contact visits after 365
days. N.J.A.C. 10A:18-6.20(a).
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                                       2
      Maddox sought to confront the medical personnel in the prison as well as

the laboratory workers at Diagnostic. The hearing officer (HO) denied the

request, determining that such testimony would not be relevant.

      Our role in reviewing a prison disciplinary decision is limited. Figueroa

v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). In general,

the decision must not be disturbed on appeal unless it was arbitrary, capricious,

or unreasonable, or lacked the support of "substantial credible evidence in the

record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579–80 (1980).

An adjudication of guilt of an infraction must be supported by "substantial

evidence."   N.J.A.C. 10A:4-9.15(a).       "'Substantial evidence' means 'such

evidence as a reasonable mind might accept as adequate to support a

conclusion.'" Figueroa, 414 N.J. Super. at 192 (quoting In re Pub. Serv. Elec.

& Gas Co., 35 N.J. 358, 376 (1961)). "Where there is substantial evidence in

the record to support more than one regulatory conclusion, 'it is the agency's

choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307

(App. Div. 1990) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484,

491 (App. Div. 1985)).

      On appeal, Maddox argues the decision was contrary to the evidence, and

that he should have been permitted to question the individuals who performed


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                                       3
the laboratory tests and those who were familiar with his prescription for

Benadryl.    Maddox argues before us that he was also taking two other

medications. We do not consider evidence or arguments not provided to the

agency. In re Stream Encroachment Permit, Permit No. 0200-04-002.1 FHA,

402 N.J. Super. 587, 602 (App. Div. 2008).

      We reject Maddox's due process arguments.          N.J.A.C. 10A:4-9.15(b)

states: "Evidence relied upon in making a determination shall be specified on

the Adjudication of Disciplinary Report form." The DOC complied with its

obligations. Maddox received notice of the charges, and was afforded assistance

of a counsel substitute at the hearing. See Avant v. Clifford, 67 N.J. 496, 523,

536 (1975). He was able to see the evidence the HO relied upon and the report

form set forth the statements and reports relied upon to adjudicate the infraction.

      The right of an inmate to confront witnesses is not absolute. N.J.A.C.

10A:4-9.13(a). The DOC appropriately sent the urine sample for an outside,

objective, more accurate test. See Blanchard v. N.J. Dep't of Corr., __ N.J.

Super. __, __ (App. Div. 2019) (slip op. at 1–2) (requiring the DOC to use a

confirmatory laboratory test on a substance found on an inmate).

      The HO, however, did not provide an adequate explanation for the

sanctions imposed on Maddox. The HO stated:


                                                                          A-0618-18T1
                                        4
             [Inmate] must be held responsible for his actions. His
             urine tested positive for not one, but two substances that
             he is not prescribed by Medical or Dental. The use of
             substances not prescribed poses a safety [and] security
             risk within the institution [and] will not be tolerated.
             Note C1 — yes/yes/no. [Inmate] advised he has [forty-
             eight] hours to appeal.

       C1 is a mental health "Disciplinary Report Form." The form stated that

Maddox suffered from a mental illness, yet was responsible for his actions and

competent.    The form states: "there is no evidence that [the inmate] will

decompensate if given a [twenty-one]-day [restrictive housing unit] sanction."

      The 150 days administrative segregation, a form of solitary confinement

in a restrictive housing unit, and the other sanctions imposed were not the

minimum permitted for such an offense. N.J.A.C. 10A:4-5.1(g). The DOC

offered an insufficient explanation of how the sanctions were proportionate to

the offense and the offender.        The DOC must provide an inmate with

"individualized reasons for the specific sanctions imposed." Malacow v. N.J.

Dep't of Corr., 457 N.J. Super. 87, 96–97 (App. Div. 2018); see also Mejia v.

N.J. Dep't of Corr., 446 N.J. Super. 369, 378–79 (App. Div. 2016). The DOC

must articulate the factors considered in the imposition of sanctions so that we

may perform our review of "whether a sanction is imposed for permissible

reasons."    Mejia, 446 N.J. Super. at 379; see also N.J.A.C. 10A:4-9.17(a)


                                                                          A-0618-18T1
                                         5
(providing relevant factors for individualized sanctions). One reason given, that

two "substances" were found in Maddox's urine, is specific to the offense. But

in itself this reason is insufficient. The other comments are not specific to

Maddox. Maddox claims this is his first disciplinary infraction. We therefore

reverse the sanctions and remand for a re-imposition of sanctions with valid

inmate-specific reasons.

      Affirmed in part, vacated and remanded in part.        We do not retain

jurisdiction.




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