NOT FOR PUBLICATION WITHOUT THE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-0629-18T4
GEORGE LOPEZ,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________
Submitted October 2, 2019 – Decided October 8, 2019
Before Judges Fasciale and Rothstadt.
On appeal from the New Jersey Department of
Corrections.
George Lopez, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Stephanie Renee Dugger,
Deputy Attorney General, on the brief).
PER CURIAM
George Lopez, an inmate at Northern State Prison, appeals from a
September 7, 2018 final agency decision by the New Jersey Department of
Corrections (NJDOC), which found him guilty of prohibited act *.204 (use of
prohibited substance), N.J.A.C. 10A:4-4.1(a). We affirm.
On August 24, 2018, the NJDOC tested Lopez's urine. On September 4,
2018, the NJDOC received the lab results, which were positive for THC and
Buprenorphine (also known as Suboxone), and charged Lopez with committing
the prohibited act. The next day, the NJDOC served Lopez, conducted an
investigation, and referred the matter to the courtline hearing officer (HO). On
September 7, 2018, the HO granted Lopez's request for substitute counsel.
Lopez pled not guilty with the assistance of substitute counsel. The HO
conducted the hearing, rejected Lopez's arguments, and sanctioned him to 180
days of administrative segregation, 365 days of urine monitoring, 15 days loss
of recreation privilege, 120 days loss of commutation time, and a mental health
referral.1 Lopez administratively appealed, and the NJDOC entered its final
decision.
1
The record reveals a discrepancy as to whether Lopez received a 365 day loss
of contact visits or zero tolerance permanent loss of contact visits.
A-0629-18T4
2
On appeal, Lopez raises the following arguments:
POINT I
THE [HO] VIOLATED [LOPEZ'S] DUE PROCESS
RIGHTS IN NOT CONFIRMING [LOPEZ] WAS ON
A SUBOXONE MAINTENANCE PROGRAM.
POINT II
[LOPEZ] WAS NOT IN THE CUSTODY OF [NJDOC]
LONG ENOUGH TO NOT FULLY BE CLEANED OF
ANY LEGAL AND ILLEGAL SUBSTANCES.
A. [HO] erred In Relying On Information
That Does Not Apply To An Individual
Who Is In A Suboxone Maintenance
Program For Over A Year.
POINT III
THE [HO] VIOLATED [LOPEZ'S] DUE PROCESS
RIGHTS BY PLACING [LOPEZ] ON PRE-HEARING
DETENTION AND NOT AFFORDING [LOPEZ]
WITH A HEARING WITHIN [SEVENTY-TWO]
HOURS OF PLACEMENT INTO PRE-HEARING
DETENTION.
POINT IV
THE [NJDOC] VIOLATED FUNDAMENTAL
FAIRNESS BY NOT APPLYING [THE] TIME IN
PRE-HEARING DETENTION TO SENTENCE.
A-0629-18T4
3
We conclude that these arguments are without sufficient merit to require
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief
remarks.
"Our role in reviewing the decision of an administrative agency is
limited." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div.
2010). "We defer to an agency decision and do not reverse unless it is arbitrary,
capricious[,] or unreasonable or not supported by substantial credible evidence
in the record." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App.
Div. 2010). "'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)).
When reviewing a NJDOC determination that involves prisoner
discipline, we engage in a "'careful and principled consideration of the agency
record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App.
Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of Consumer
Affairs of Dep't of Law & Pub. Safety, 64 N.J. 85, 93 (1973)). We consider not
only whether there is substantial credible evidence that the inmate committed
the prohibited act, but also whether, in making its decision, the NJDOC followed
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4
adopted regulations that afford inmates procedural due process. See McDonald
v. Pinchak, 139 N.J. 188, 194-96 (1995).
"Prison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due [to] a defendant in such proceedings does not
apply." Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v.
McDonnell, 418 U.S. 539, 556 (1974)). But the inmate's more limited
procedural rights, initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46
(1975), are codified in a comprehensive set of NJDOC regulations, N.J.A.C.
10A:4-9.1 to -9.28.
A prisoner is afforded: the right to written notice of the charges at least
twenty-four hours prior to the hearing, N.J.A.C. 10A:4-9.2; a right to a fair
tribunal, N.J.A.C. 10A:4-9.15; a limited right to call witnesses and present
documentary evidence, N.J.A.C. 10A:4-9.13; a limited right to confront and
cross-examine adverse witnesses, N.J.A.C. 10A:4-9.14; a right to a written
statement of the evidence relied upon and the reasons for the sanctions imposed,
N.J.A.C. 10A:4-9.24; and, in certain circumstances, the right to assistance of
counsel-substitute, N.J.A.C. 10A:4-9.12. These regulations "strike the proper
balance between the security concerns of the prison, the need for swift and fair
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5
discipline, and the due-process rights of the inmates." Williams, 330 N.J. Super.
at 203 (citing McDonald, 139 N.J. at 202).
Lopez's hearing followed the safeguards outlined in Avant and those
codified by the regulations. The record confirms that Suboxone is "detectible
in the urine for three days." The August 24, 2018 positive test results – for THC
and Suboxone – support the charge. Furthermore, Lopez offered no credible
explanation for his positive THC results. The NJDOC followed the regulations
– N.J.A.C. 10A:4-10.1(a), N.J.A.C. 10A:4-10.1(c)(3), and N.J.A.C. 10A:4-
10.1(d)-(e) – by placing Lopez in pre-hearing disciplinary detention on
September 4, 2018 because his behavioral controls appeared to be impaired.
And finally, there is no basis for "credit." Again, the NJDOC placed him in pre-
hearing detention– under N.J.A.C. 10A:4-10.1 – to protect his own security.
Affirmed.
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6