                                NOT FOR PUBLICATION WITHOUT THE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-0463-18T2

ANDRE GREEN,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted October 3, 2019 – Decided October 18, 2019

                    Before Judges Koblitz and Mawla.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Andre Green, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Beonica A. McClanahan, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant Andre Green is confined to Northern State Prison. He appeals

from an August 27, 2018 decision by the New Jersey Department of Corrections

(DOC), finding him guilty of *.204: use of any prohibited substances, such as

drugs, not prescribed. As a result of the infraction, Green received 180 days of

administrative segregation, sixty days loss of commutation time, and ten days

loss of recreation privileges. We affirm the finding of the infraction, but vacate

and remand the sanction for the DOC to reconsider and supply reasons for the

new sanction imposed.

      On August 6, 2018, Green was randomly selected for a urine drug screen,

pursuant to the DOC's monthly testing policy. The DOC sent Green's urine

specimen to a diagnostic laboratory and test results confirmed the specimen

tested positive for THC.1 Green was charged and served with disciplinary

infraction *.204. The DOC investigated and referred the matter to a hearing

officer. Green testified at the hearing and denied using marijuana. He was

shown the evidence the hearing officer relied upon, but did not cross-examine

the DOC witnesses. The hearing officer found Green guilty of the infraction




1
  THC or Delta-9-tetrahydrocannabinol is the main ingredient that produces the
psychoactive effect in marijuana. Marijuana, DEA (Oct. 7, 2019, 2:13 PM),
https://www.dea.gov/factsheets/marijuana.
                                                                          A-0463-18T2
                                        2
and sanctioned him. Green filed an administrative appeal and the assistant

superintendent upheld the hearing officer's decision.

      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)

(citation omitted).

      On appeal, Green argues the DOC violated due process by failing to grant

him access to his test results. He also argues the guilty finding was arbitrary

and capricious.

      We reject Green's due process argument. 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." Pursuant to Avant v. Clifford, the

DOC complied with its obligations because Green received notice of the

charges, and was afforded assistance of a counsel substitute at the hearing. 67

N.J. 496, 523, 536 (1975). He was able to see the evidence the hearing officer

relied upon and the officer's adjudication report, setting forth the statements and

reports relied upon to adjudicate the infraction.


                                                                           A-0463-18T2
                                        3
       Green's argument that the infraction adjudication was arbitrary,

capricious, or unreasonable is unsupported by the record. N.J.A.C. 10A:4-

9.15(a) states an adjudication of an infraction must be supported by substantial

evidence. "'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)). The

positive THC test results, confirmed by an independent laboratory, constituted

substantial evidence of Green's guilt. For these reasons, we affirm the finding

of an infraction.

       Notwithstanding, the record lacks an adequate explanation for the

sanctions imposed on Green. The hearing officer only stated Green needed to

"be held accountable for [his] actions[]" and cited the general need "to deter use

of CDS,2 while promoting a safe[,] secure [and] orderly facility." Although

Green does not raise the adequacy of the reasons given for the sanction as a basis

for reversal on this appeal, he raised the issue in his administrative appeal from

the hearing officer's findings. In response, the assistant superintendent stated:

"The sanction imposed was proportionate to the offense. No leniency will be

afforded to you."


2
    Controlled dangerous substances.
                                                                          A-0463-18T2
                                        4
      The 180 days administrative segregation sanction imposed for Green's

marijuana use was the maximum permitted for such an offense. N.J.A.C. 10A:4-

4.1(a)(2). The DOC offered no explanation of how the maximum days in

administrative segregation, in addition to the two other categories of sanctions

imposed on Green, were "proportionate to the offense."

      The DOC must provide an inmate with individualized reasons for the

specific sanctions imposed. Mejia v. N.J. Dep't of Corrs., 446 N.J. Super. 369,

378-79 (App. Div. 2016). The DOC must articulate the factors considered in

the imposition of sanctions, so we may perform our review of "whether a

sanction is imposed for permissible reasons." Id. at 379; see also N.J.A.C.

10A:4-9.17(a) (providing factors to individualize particular sanctions). For

these reasons, we remand for a reconsideration of the imposed sanctions.

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

jurisdiction.




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