DeRemer v. State, Dep't of Corr.
| Docket Number | S-17856,2007 |
| Decision Date | 24 January 2024 |
| Parties | RICHARD B. DEREMER III, Appellant, v. STATE OF ALASKA, DEPARTMENT OF CORRECTIONS, Appellee. |
| Court | Alaska Supreme Court |
1
RICHARD B. DEREMER III, Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF CORRECTIONS, Appellee.
No. S-17856
No. 2007
Supreme Court of Alaska
January 24, 2024
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Superior Court No. 3AN-19-05031 CI Anchorage, Yvonne Lamoureux, Judge.
Richard B. DeRemer III, pro se, Wasilla, Appellant.
Andalyn Pace, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee.
Before: Maassen, Chief Justice, and Carney, Borghesan, Henderson, and Pate, Justices.
MEMORANDUM OPINION AND JUDGMENT [*]
I. INTRODUCTION
The Alaska Department of Corrections (DOC) determined that a prisoner violated a regulation and imposed a sanction of punitive segregation after the prisoner tested positive for suboxone during a random urinalysis test. The prisoner filed an administrative appeal to the facility superintendent, who affirmed the finding. He then
appealed to the superior court, which affirmed the administrative decision. Because the prisoner does not show that DOC violated his constitutional rights or that a violation prejudiced him, we affirm DOC's decision.
II. FACTS AND PROCEEDINGS
A. Facts
In December 2018 Goose Creek Correctional Center inmate Richard B. DeRemer III was required to provide a sample for random urinalysis (UA). DeRemer was strip searched, and a correctional officer gave him a sealed UA cup. The officer watched DeRemer open the cup and heard the security sticker tear. The officer tested the sample with a dip test. The officer was unable to see one of the test lines. Two other officers viewed the test strip and concluded the test was positive for suboxone. The officer who conducted the test documented the chain of custody for the sample cup on an evidence record form, Form 1208.08B, and also completed a substance abuse testing form, Form 808.14A. He recorded the chain of custody information only on the evidence record form.
DeRemer was charged with a high-moderate infraction for possessing, using, or introducing contraband into Goose Creek, in violation of 22 Alaska Administrative Code (AAC) 05.400(c)(7).[1] A hearing advisor was appointed for DeRemer.[2] DeRemer met with his advisor and requested video recordings of both the intake area and his holding cell from the night of his test, a statement from another inmate, and photos of the drug test determination for use in his disciplinary hearing. In
response to DeRemer's request, the hearing officer directed him to provide any questions he had for the other prisoner pursuant to 22 AAC 05.430,[3] and to explain why he wanted the video so that the officer could determine its relevance. The hearing officer advised DeRemer that he was not entitled to photos "per policy."[4] DeRemer's advisor obtained the requested witness statement from the other prisoner.
Before the start of the disciplinary hearing, the hearing officer allowed DeRemer to review the evidence record form. DeRemer denied using drugs and pled not guilty. He argued that the charge violated his equal protection rights because "[t]he chain of custody was not complete" and "[a]nother inmate had his case dismissed because of chain of custody issues." He also challenged his drug test on the grounds that he was not present during the testing of his sample. Finally, he challenged the alleged use of the improper form - the evidence record form, Form 1208.08B, instead of the substance abuse testing form, Form 808.14A - to document the chain of custody.
The hearing officer acknowledged that the chain of custody was documented on the wrong form but claimed that his review of the video showed no break in the chain of custody. He stated that DeRemer had viewed the form at the hearing and had not asked to see it before the hearing. And the hearing officer stated that he did not know anything about the other prisoner's disciplinary matter and that there was no evidence to confirm that the circumstances were the same.
The hearing officer found DeRemer guilty of the charged violation based on the report and hearing testimony. The hearing officer concluded that there was no violation of DOC policy or Goose Creek's standard operating procedure because neither of them "require the inmate to be present when the sample is tested." He also noted that DeRemer "was given the opportunity to send the sample out for confirmation testing, but chose not to." The hearing officer further found that although the chain of custody was not documented on a substance abuse testing form, as required, it was in fact documented and the use of the wrong form was a "harmless error." The hearing officer did not address DeRemer's equal protection claim. He found DeRemer guilty and imposed 20 days of punitive segregation - with 15 days suspended "if no guilty write ups for 180 days" - and 30 days' loss of commissary privileges.
DeRemer timely appealed the disciplinary decision to the facility superintendent.[5] The superintendent denied DeRemer's appeal, concluding that documenting the chain of custody on the wrong form was a harmless error.
B. Proceedings
In March 2020 DeRemer, representing himself, appealed the superintendent's decision to the superior court.[6] DeRemer argued that his due process rights were violated because DOC did not follow the correct testing standards, he was not provided with video or photographic evidence, the chain of custody was documented on the wrong form, and the hearing officer was not impartial. He also argued that his equal protection rights were violated because DOC had dismissed another inmate's disciplinary action because of a chain of custody issue, but had not dismissed his. DOC responded that DeRemer was focused on "perceived irregularities
about form, not substance," that any irregularities did not prejudice him, and that his equal protection claim had no factual support. DOC also argued that DeRemer's challenge to the credibility of the officer that collected his sample "should not be credited."
The superior court affirmed DOC's decision. The court concluded that DeRemer's due process rights and equal protection rights were not violated. It reasoned that although the wrong form was used, "that document was available to DeRemer prior to and at his disciplinary hearing," and thus found "no showing of prejudice." It found that "DOC policy does not require that a urine sample be tested in the presence of the prisoner" and even if it did, "DeRemer ha[d] not shown how [the officer's] failure to comply with such a policy impacted his due process rights." The court noted that "DeRemer did not request that the sample be tested again by a lab or seek testimony from [the officer] at his disciplinary hearing."
The court then addressed DeRemer's concerns about the photo and video evidence. The court found that "DeRemer had requested video evidence and both [the hearing officer] and DeRemer discussed the video evidence prior to the start of the disciplinary hearing." It also noted that "[t]he hearing officer viewed the video evidence and confirmed that there was no break in the chain of custody and that the sample was not tampered with." And the court concluded that there was "no indication that the photocopy of the test strip was evidence in DeRemer's favor or that DeRemer was prejudiced as a result of the late disclosure of the test strip."
The court also found that DeRemer had not shown that the hearing officer was biased against him or that "his right to equal protection under the law was infringed."
III. STANDARD OF REVIEW
"Appellate judicial review of prisoner disciplinary proceedings is available when 'issues of constitutional magnitude' are involved."[7] We independently review the merits of the administrative decision.[8] We will reverse a DOC disciplinary decision only if "the prisoner's fundamental constitutional rights were violated . . . and that violation prejudiced the prisoner's right to a fair adjudication."[9] "Whether an inmate has received procedural due process is an issue of constitutional law that we review de novo."[10] Other constitutional questions and "whether a party has suffered prejudice are likewise reviewed de novo."[11]
IV. DISCUSSION
A. DeRemer's Due Process Rights Were Not Violated.
"An inmate facing a major disciplinary proceeding is . . . entitled to a number of procedural safeguards under the Due Process Clauses of the federal and state constitutions."[12] The Due Process Clause of the Alaska Constitution provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law."[13] "Punitive segregation is a liberty deprivation sufficient to trigger the Alaska
Constitution's due process guarantee."[14] Because DeRemer was subject to punitive segregation, he was entitled to due process protections.
"In order to reverse a disciplinary decision, we must find both that a constitutional right was violated and that the violation prejudiced the inmate's right to a fair adjudication."[15] "Failure of a staff member to follow [DOC] regulations . . . does not invalidate a [disciplinary] decision absent a showing of prejudice by the prisoner."[16]
1. DeRemer was not prejudiced by the use of the wrong form.
Governing regulations require DOC to "maintain a manual comprised of policies and procedures established by the commissioner to interpret and implement relevant sections of the Alaska Statutes and 22 AAC."[17] The substance abuse testing policy[18] provides that testing "be performed at the lowest threshold testing level specified by...
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