SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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G ARY M ADDOX , Appellant ,

v. NEW JERSEY DEPARTMEN T OF CORRECTIONS , Respondent

.

__________________ ____ ____ __

Submitted November 20, 2019

– Decided Before Judges Koblitz and Mawla

. On appeal from the New Jersey Department of Corrections

. Gary Maddox, appellant pro se

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

.

PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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December 11, 20192 A

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Gary Maddox is confined to p rison , 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)( xv i)

. As a result of the infraction, Maddox received 1 50 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 D OC 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 Diagnos ti c 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).3 A

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Maddox sought to confront the medical personnel in the prison as well as th e 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 eviden ce 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. 19 85)). On appeal, Maddox argues the decision was contrary to the evidence , and that he should have been permitted to question the individuals who performed4 A

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

. Maddox argue s before us that he was also taking two other medications. We do not consider evidence or argum ent s not provided to the
agency . In re Stream Encroachment Permit, Permit No. 0200

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- 002.1 FHA , 402 N.J. Super. 587, 602 (App. Div. 2008). We reject Maddox 's due process argument s . 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 o f 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 upo n to adjudicate the infraction. The right of an inmate to confront witnesses is not absolute. N.J.A.C.
10A:4

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. 13 (a). The D OC 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 D OC to use a confirmatory laboratory test on a substance foun d on an inmate). The HO, however, did not provide an adequate explanation for the sanctions imposed on Maddox. The HO stated :5 A

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— yes/yes/no. [Inmate] advised he has [forty

eight] hours to appeal. C1 is a mental healt h "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 1 50 days administrative segregation , a form of solitary confinement in a restrictive housing unit, and the other sanction s imposed were not the minimum permitted for such an offense. N.J.A.C. 1 0A: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 C orr. , 457 N.J. Super. 87, 9 6

– 9 7 (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 "whet her a sanction is imposed for permissible
reasons." Mejia , 446 N.J. Super. at 379; see also N.J.A.C. 10A:4

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(providing relevant factors for individualize d 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 s anctions with valid
inmate

- specific reasons

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