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DeRemer v. State, Department of Corrections

Supreme Court of Alaska

August 23, 2013

Richard B. DeREMER III, Appellant,
v.
STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.

Rehearing Denied Nov. 6, 2013.

Page 976

Before: FABE, Chief Justice, and WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

ORDER

IT IS ORDERED:

1. After a disciplinary proceeding, a hearing officer found Alaska prison inmate Richard B. DeRemer III guilty of the " high-moderate" infraction of " hoarding medication." [1] A correctional officer had discovered two pills during a search of DeRemer's locker. The officer alleged in an incident report that DeRemer had " admitted the pills were his and stated the pills were ‘ Demerol.’ " Prior to the disciplinary hearing, DeRemer, who claimed that the seized pills were Ibuprofen, timely requested specific items of potentially exculpatory evidence, such as photographs of the seized pills and his own prison medical records, but he was denied pre-hearing access to all of his requested evidence. Instead, the case manager reported at the disciplinary hearing that she had brought the list of requested evidence to the hearing officer who " told [her] that [DeRemer] could address these items here at the hearing."

2. At the disciplinary hearing, DeRemer maintained that the pills found in his locker were Ibuprofen, and he again requested evidence to present a defense. But the hearing officer did not produce the seized pills, laboratory tests, photographs of the pills, DeRemer's " medication dispersement form from [the prison] pill-line," or any other items of DeRemer's requested evidence. Once it became apparent to DeRemer that he would not receive his requested evidence at the hearing, he attempted to call a nurse to testify that he had properly obtained the Ibuprofen from the prison medical dispensary. He also sought to ask the nurse whether the prison medical dispensary had ever prescribed Demerol. The hearing officer refused DeRemer's request to call a nurse as a defense witness, deeming the request untimely. The correctional officer who discovered the pills did not testify. The hearing officer found DeRemer guilty of " hoarding medication," relying entirely on the incident report. DeRemer immediately informed the hearing officer that he would appeal the decision.

3. After exhausting his administrative appeals, DeRemer filed a notice of appeal to the superior court on April 8, 2010.[2] DeRemer

Page 977

contended in his points on appeal that he was improperly denied access to his requested evidence at the disciplinary hearing, citing his requests for photos of the pills, laboratory tests, and a copy of his medication dispersal form from the pill-line. He further argued that " [n]o one at Hudson Correctional Facility has ever received ‘ Demerol.’ " [3]

4. On May 18, 2011, the State sent a letter to DeRemer indicating that DeRemer was required to pay the record preparation costs and that the State had estimated the cost of preparing the record as $128 " based on the average cost of preparing the record on appeal." On May 19, 2011, the State reported to the superior court that the audio recording of the disciplinary hearing was " no longer available" and requested that DeRemer be ordered to recreate " a statement of the evidence of his hearing pursuant to Appellate Rule 601 and 210(b)(8)." On June 13, 2011, Superior Court Judge Peter A. Michalski directed DeRemer to " prepare a statement of the evidence of the proceedings."

5. The following day, June 14, 2011, DeRemer opposed the State's request to require him to reconstruct the record of the disciplinary hearing. On the same day, DeRemer filed a motion to " Reverse Disciplinary Conviction (with Prejudice)," arguing that he should prevail on his appeal as a procedural matter because the State had improperly requested that he pay the record preparation fee when there was no record and because the recording of the disciplinary hearing had been destroyed or misplaced. Although there is no authority in the Rules of Appellate Procedure for DeRemer's motion for summary reversal, it appears that he sought summary resolution of the appeal in his favor on the basis that the Department of Corrections had failed to maintain an audio recording of his disciplinary hearing.[4] Nonetheless, on July 11, 2011, DeRemer complied with the superior court's order by recreating from memory a detailed record of the disciplinary hearing. The State did not dispute DeRemer's reconstructed record of the hearing.

6. Yet before setting a briefing schedule or permitting any briefing on the merits of DeRemer's points on appeal, the superior court denied DeRemer's procedural motion for summary reversal of his disciplinary conviction based on the lack of recording and then proceeded to dismiss DeRemer's entire appeal. In its order of September 20, 2011,[5] the superior court reasoned that " [a]ccording to AS 33.30.295, a disciplinary hearing cannot be reversed ‘ because of insufficient evidence if the record ... shows that the disciplinary decision was based on some evidence that could support the decision reached.’ " [6] The superior court further reasoned that, " [a]ccording to Appellant's recreation of the record, the disciplinary report stated that ‘ [i]nmate DeRemer admitted the pills were his and stated the pills were Demerol.’ This constitutes evidence that supports the decision reached." In denying DeRemer's motion, and despite its failure to give DeRemer an opportunity to brief the underlying due process claims arising from the refusal to provide discovery or permit witnesses to be called at the disciplinary

Page 978

hearing, the superior court concluded that " [a]ppellant's subsequent claims fail to state ‘ specific facts establishing a violation of the prisoner's fundamental constitutional rights that prejudiced ...


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