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Chanda Mcclam v. New Jersey Department of Corrections

May 3, 2011

CHANDA MCCLAM, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections. Chanda McClam, appellant pro se.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 5, 2011

Before Judges Carchman and St. John.

Appellant, Chanda McClam, an inmate at Edna Mahan Correctional Facility (EMCF), appeals from a final agency decision of the Department of Corrections (the Department) that found her guilty of committing prohibited act *.002, assaulting any person, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On October 21, 2009, Corrections Officer Sergeant R. Simpson reported to the food service area of EMCF in response to an alert from Senior Corrections Officer M. Luongo. Inmate A. Burt reported to Luongo that she had just been assaulted by McClam. Burt stated to Luongo that McClam had hit her three times in the face and threw sauce on her. Simpson questioned McClam who denied the allegations. Inmate K. McClinton, who apparently witnessed the incident, told Simpson that Burt and McClam had argued and that McClam "swung on" Burt twice and threw tomato sauce on Burt. Upon completion of Simpson's investigation, McClam and Burt were brought to the infirmary for medical evaluation. The evaluation revealed that Burt had bruises, redness noted on her right cheek, but no other apparent injuries. McClam was found to be without injuries.

Based on the facts gleaned from Simpson's investigation at the food service area and the results of the medical evaluations, he concluded that McClam had assaulted Burt by punching her in the face. Simpson prepared a disciplinary report, charging McClam with a *.002 infraction (assaulting any person). On October 22, 2009, McClam was given the disciplinary report and she pleaded not guilty.

Sergeant G. Schaffer conducted an investigation of the alleged infraction. McClam told Schaffer that she was out in the break area at the time of the incident, that she never hit Burt, and that she never threw anything on her. Schaffer concluded that the victim and witness's statements, coupled with the medical evaluations, supported the allegation of assault.

At the disciplinary hearing on October 23, 2009, McClam requested and was granted the assistance of counsel substitute. McClam stated to the Disciplinary Hearing Officer (DHO) Shepperd that she did not do anything wrong. Her counsel substitute argued that the allegations were motivated by an old relationship, that McClam did not assault Burt, and that there was no evidence of the alleged assault. McClam requested, as witnesses, inmates Kelly and Cordero, and written statements from both witnesses were considered by the DHO. Kelly stated that she did not see anything, and Cordero stated that she did not want to get involved. McClam was offered an opportunity to confront adverse witnesses at the hearing and declined.

DHO Shepperd upheld the *.002 charge based on the reports of Luongo and Simpson, inmate Burt's statement that she was assaulted, and Burt's medical report showing an injury consistent with her allegations. DHO Shepperd imposed sanctions on McClam of fifteen days detention, 180 days loss of commutation time, and 180 of administrative segregation. Shepperd's reasons for the sanctions were stated as: deterrence of assaults; and an impression that the incident could have escalated into something more serious. The adjudication report indicated that McClam's counsel substitute reviewed the report and acknowledged that it accurately reflected what took place at the hearing.

McClam filed an administrative appeal from the DHO's finding of guilt on the *.002 charge, checking on the appeal form "a plea of leniency" and "other" as her reasons for appeal. In a memorandum attached to the appeal form, McClam argued that there was insufficient evidence of the assault. She also questioned Burt's credibility, stating that she and Burt had a history of ill feelings toward one another. McClam requested that the DHO's finding of guilt be overturned and, if not overturned, that the sanctions be modified or suspended.

The DHO's decision regarding McClam's guilt of the *.002 charge was upheld on October 27, 2009, by William Hauck, Administrator. Hauck modified the sanctions, suspending McClam's 180 of administrative segregation for sixty days. Hauck's explanation for his decision was that McClam was proven through investigation to be responsible for this assault.

McClam raises one argument for our consideration ...


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