DEMARR DRINKARD v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0812-10T3

DEMARR DRINKARD,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________________________________

December 13, 2011

Submitted November 29, 2011 - Decided

Before Judges Fisher and Baxter.

On appeal from the New Jersey Department of Corrections.

Steven F. Roth, attorney for appellant.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Daniel DiLella, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Demarr Drinkard, an inmate of Northern State Prison, was found to have committed prohibited act *.004, fighting with another person, in violation of N.J.A.C. 10A:4-4.1(a). In this appeal, Drinkard claims his due process rights were violated by the manner in which the charge was adjudicated. We find no merit in his arguments and affirm.1

In a nutshell, the hearing officer was required to choose between conflicting versions of the event in question. As described in a correction officer's report, appellant "jumped into a fight" between two other inmates and threw "closed fist punches" at one of them until a correction officer intervened. In response, appellant provided a written statement, in which he claimed he "was on the phone, deep in conversation," "not aware of what was going on around him" and was not "apart [sic]" of the incident.

The hearing officer considered these contentions and ultimately found appellant was an active combatant. He imposed fifteen days detention, 120 days administrative segregation and 120 days loss of commutation time. Appellant filed an administrative appeal, and the assistant superintendent upheld the hearing officer's findings.

Appellant then filed this appeal, arguing:

I. IN DENYING [APPELLANT] A RIGHT TO CALL WITNESSES, THE HEARING [OFFICER] DEPRIVED [APPELLANT] OF HIS DUE PROCESS RIGHTS.

II. THE HEARING [OFFICER'S] "RUBBER STAMP" UPON THE CORRECTION OFFICER'S VERSION OF EVENTS VIOLATED THE [APPELLANT'S] DUE PROCESS RIGHTS.

We find insufficient merit in appellant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following brief comments.

Appellant contends he was deprived of the right to call witnesses; the record, however, demonstrates that when appellant was served with notice of the charge, he did not request that statements be taken from others, and he declined to call witnesses at the hearing. As a result, we conclude that appellant's right to call witnesses, as well as all other due process rights guaranteed by Avant v. Clifford, 67 N.J. 496, 522-33 (1975), were satisfied and, thus, reject the argument contained in appellant's first point.

We also reject appellant's second point, in which he contends the hearing officer only "rubber-stamped" the charge, invoking the Court's admonition in McDonald v. Pinchak, 139 N.J. 188, 195-96 (1995) (recognizing that "[t]he hearing may be informal, but the procedures must determine the factual accuracy of the charges," and the hearing officer must not "merely 'rubber stamp'" the charges). In this regard, appellant has merely assumed that the efficiency of the process suggests the hearing officer simply adopted the facts underlying the charges without paying sufficient attention to appellant's opposing factual allegations. We find nothing in the record to support this contention. That the hearing officer did not credit appellant's version of the event does not mean that he did not weigh that evidence and merely "rubber-stamped" the charges.

1The matter was not originally listed on a plenary calendar. Instead, the court has sua sponte determined that the matter is ripe for summary disposition. R. 2:8-3(b).