SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Charles Carter (Appellant), an inmate incarcerated with the Department of Corrections (Department). Carter was convicted of violating SCDC Disciplinary Code 2.05, Use of Obscene, Vulgar, or Profane Language or Gestures (Use of Profane Language). As a result of his conviction, the Appellant lost thirty (30) days of "good-time" credit. The Appellant filed a grievance with the Department and received the Department's final decision from the Department on or about September 7, 2000. On September 14, 2000, Inmate Carter filed this appeal.

On March 7, 2000, the Appellant requested that Lieutenant Sprouse allow him to leave the unit to go to the canteen. Lieutenant Sprouse informed him that he could not go to the canteen, to which the Appellant responded that "these motherf***ers around here are crazy." Lieutenant Sprouse asked him to repeat his comment and, at that point, the Appellant stepped to within six inches (6") of Lieutenant Sprouse's face and stated that "it ain't none of your damn business what I said." The Appellant then moved even closer and stated, "You need to stay out of my damn business." Following the incident, Lieutenant Sprouse completed an Incident Report. The Appellant was charged with violating SCDC Disciplinary Code 2.05, Use of Profane Language. The Appellant received written notice of the charges on March 10, 2000. On March 20, 2000, the Appellant was brought before a Department Disciplinary Hearing Officer (DHO) to face the Use of Profane Language charge in a Major Disciplinary Hearing. At the Appellant's request, he was represented by counsel substitute during the hearing. Additionally, at the Appellant's request, Lieutenant Sprouse was present at the hearing.

During the hearing, the DHO read a narrative of Lieutenant Sprouse's Incident Report into the Record and received testimony from the Appellant as evidence. At the conclusion of the hearing, the DHO found that the Appellant was guilty of Use of Profane Language and sanctioned him with the loss of thirty (30) days of "good time" credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record, which documented the DHO's findings. The Appellant filed a grievance on March 20, 2000, appealing his conviction of violating SCDC Disciplinary Code 2.05.

After reviewing his allegation, the Warden denied the Appellant's grievance on May 1, 2000. Afterwards, the Appellant appealed the warden's decision on May 4, 2000 asking that the Department reverse his loss of "good time" credits. The Department denied his grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violation that the Appellant committed. This appeal followed.

In his Appellate Brief, the Appellant argues that the statement by Lieutenant Sprouse that there is no "11:30 movement" was incorrect. ⁽¹⁾ The Appellant also contends that Lieutenant Sprouse should not have been allowed to attend the disciplinary hearing because he filed the report of the charges. ⁽²⁾ The Appellant further contends that an inmate was improperly allowed to refuse to attend the hearing as a witness in his behalf. Finally, the Appellant claims that this disciplinary proceeding subjects him to double jeopardy because he spent three (3) days in lock-up for the same offense.

The Division's jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001) the Division issued an En Banc Order interpreting the breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division's appellate jurisdiction in inmate appeals is limited to two (2) types of cases: (1) cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the Department has taken an inmate's created liberty interest as punishment in a major disciplinary hearing.

In this case, the Appellant alleges that the Department improperly revoked thirty (30) days of good time. Inmates have a protected liberty interest in their earned statutory "good time" credits under the Fourteenth Amendment. Therefore, when, as here, the Department revokes an inmate's "good time" credits as punishment in a "major disciplinary hearing" involving "more serious rule violations," prison officials must provide that inmate with "minimal due process." Al-Shabazz, 338 S.C. at 370, 527 S.E.2d at 750. Consequently, specific administrative procedures must be followed before depriving an inmate of statutorily granted earned credit, including adequate advance notice of the charges, adequate opportunity for a hearing in which the inmate can present witnesses and documentary evidence, and an impartial hearing officer who prepares a written statement of all the evidence presented and the reasons for his decision. Al-Shabazz, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).

As set forth above, in Al-Shabazz, the Court held that inmates may seek review before this Division to ensure that the Department's revocation of good-time credits as punishment in a "major disciplinary hearing" involving "more serious rule violations" comport with "minimal due process." The ALJD inquiry into these matters is primarily concerned with ensuring that the Department has granted aggrieved inmates the process they are due when their constitutional rights are implicated. Id. When reviewing the Department's decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Id. Consequently, the review in these inmate grievance cases is limited to the record presented. Furthermore, an Administrative Law Judge may not substitute his judgment for that of an agency unless the agency's determination is arbitrary, affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (1986 & Supp. 2001); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756. "'Substantial evidence' is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action." Lark v. Bi-Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). Furthermore, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

Additionally, in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 445, 105 S. Ct. 2768 (1985), the U.S. Supreme Court held that "the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Moreover, in Al-Shabazz, the Court underscored that since prison officials are in the best position to decide inmate disciplinary matters, the Courts and therefore this Division adhere to a "hands off" approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz, 338 S.C. at 382, 527 S.E.2d at 757; See also Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779 (1980) (stating the traditional "hands off" approach of South Carolina courts regarding internal prison discipline and policy).

I find that the Appellant was afforded all process due him pursuant to Al-Shabazz. ⁽³⁾ The Record indicates that the Appellant received written notice of the charges against him in excess of twenty-four (24) hours prior to a hearing that was held before an impartial Disciplinary Hearing Officer. At the hearing, the Appellant was given the opportunity to offer evidence, call witnesses, and confront his accuser. ⁽⁴⁾ In addition, although not constitutionally required, the Appellant was afforded a counsel substitute who assisted him in his defense. After the DHO determined that the Appellant was guilty of the charged offense, he prepared a written report detailing the evidence he relied upon and the penalty assessed in finding the Appellant guilty of the disciplinary infraction. Finally, the Appellant was permitted to appeal the DHO's decision through the inmate grievance process.

Moreover, I find that there is substantial evidence to support the Appellant's conviction of violating SCDC Disciplinary Code 2.05, Use of Profane Language. A Code 2.05 violation is: "The act of an inmate who verbalizes or writes lewd or indecent notes or letters to another person, when the person who receives [the] verbal statements, notes or letters complains of such." Lewd act is defined as "a: sexually unchaste or licentious; b: Obscene, Vulgar." Merriam-Webster OnLine (2002), available at http://www.m-w.com/. Indecent is defined as "not decent; especially: grossly unseemly or offensive to manners or morals." Id. The record clearly supports the facts recited in the "Background" portion of this Order. Those facts establish substantial evidence that the Appellant made a verbal statement that was both lewd and indecent.

IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and the Final Decision of the Department is AFFIRMED;

AND IT IS SO ORDERED.

_________________________________

Ralph K. Anderson, III

Administrative Law Judge

July 22, 2002

Columbia, South Carolina

1. This contention is actually unrelated to whether there is substantial evidence to support the Appellant's guilt. Nevertheless, since this was the statement that preceded the Appellant's statements at issue here, I have decided to review the case for substantial evidence to support the Department's determination.

2. This complaint creates an interesting paradox since the Appellant checked the box on the Department's Disciplinary Report requesting that his accuser, Lieutenant Sprouse, be present at the hearing.

3. The Appellant claims that this disciplinary proceeding subjects him to double jeopardy because he spent three (3) days in lock-up for the same offense. However, this claim was not raised at the Appellant's disciplinary hearing. Furthermore, the Appellant failed to establish the veracity of his claim. Moreover, the constitutional protection of double jeopardy describes the risk that is traditionally associated with a criminal prosecution. "[T]he risk to which the Clause refers is not present in proceedings that are not 'essentially criminal.'" Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Furthermore, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff, 418 U.S. at 556. Therefore, the Double Jeopardy Clause does not apply in prison disciplinary proceedings. See Benfield v. Bounds, 540 F.2d 670, (4th Cir.1976) (An alleged reclassification of state prisoner for same incident for which he had previously been disciplined did not place prisoner in double jeopardy.) vacated on other grounds, Jones v. Carroll, 429 U.S. 1033 (1977); Meeks v. McBride, 81 F.3d 717 (7th Cir.1996) ("an acquittal in an earlier prison disciplinary hearing is no bar to a subsequent hearing to consider the very same charge.") See also Gorman v. Moody, 710 F.Supp. 1256 (N.D.Ind.1989).

4. The Appellant requested that an inmate named Tracy Carter appear on his behalf. However, the record reflects that Inmate Carter informed the Appellant that he did not want to get involved and declined to attend the hearing. The Appellant contends that Inmate Carter should have been required to attend the hearing upon his request for the inmate to be a witness. In Wolff , the U.S. Supreme Court held that:

We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.

Wolff at 94 S.Ct. 2979 -2980. Extrapolating the reasoning out of Wolff, it is not a violation of due process for the Department to force an inmate to appear in a disciplinary hearing the inmate does not wish to attend. However, the Department could not compel an inmate to make a statement under such circumstances. Therefore, the forced attendance would be fruitless.