ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Genaro Cruz, an inmate
incarcerated with the Department of Corrections ("Department") since January 9, 1998. On April 6, 2000, Cruz was
convicted of Fighting without a Weapon and Inciting/Creating a Disturbance for an incident occurring on March 16, 2000.
As a result of his convictions, Cruz lost 90 days' "good-time" credit. Cruz filed a grievance with the Department on April
10, 2000, and received the Department's final decision on September 14, 2000. On October 3, 2000, Cruz filed this appeal
with the Division.
II. BACKGROUND
On March 16, 2000, an altercation involving nine to fifteen inmates broke out in the Edisto A-wing of Lieber Correctional
Institution. Immediately preceding the altercation, Cruz had accused another inmate of stealing his sunglasses. A fight
broke out. During the altercation, Cruz, who is Hispanic and has only a limited understanding of English, sustained several
injuries, prompting prison officials to transport him to the local hospital for treatment. Upon his return to Lieber, Cruz was
placed in lock-up, where he remained until April 28, 2000. On April 4, 2000, Cruz received written notice that he was
charged with SCDC Disciplinary Code 2.10, Fighting without a Weapon, and 2.12, Inciting/Creating a Disturbance. On
April 6, Cruz was brought before a Disciplinary Hearing Officer (DHO). Immediately prior to Cruz' hearing, the DHO had
conducted the disciplinary hearings of several of the other inmates involved in the March 16 altercation. At the hearing,
Cruz had two counsel substitutes, one who spoke Spanish and one who did not. During the hearing, counsel substitute,
speaking for the language-challenged Cruz, explained what happened on March 16, 2000. According to Cruz, Cruz
returned to his cell on March 16 to find his roommate visiting with another inmate. After the other inmate left, Cruz
noticed that his sunglasses were missing. Cruz accused the visiting inmate of taking them. Cruz's roommate left to inquire
about the missing sunglasses. When he returned, Cruz' roommate told Cruz that he would have to pay to get them back.
Cruz refused. At some point, the visiting inmate and several other inmates came down to demand that Cruz pay them.
Cruz refused, whereupon the inmates began to assault him. Cruz' testimony, his own and through his interpreter, was the
only testimony taken during the hearing. However, the DHO received the Incident Report and a report submitted to the
assistant warden by a special investigator into evidence.
In the Incident Report, Officer Bolden stated that he responded to a fight occurring near the shower area on A-Wing. When
he arrived, Officer Bolden requested assistance. Officer Bolden reported that Cruz "had blood all over him" and was taken
to the infirmary. A notation on the Report reveals that Cruz was assessed and taken to the local hospital for treatment. The
Incident Report contains no other information regarding the altercation.
In the Investigator's Report, Special Investigator Powell stated that he conducted an investigation into the "Edisto
Incident," which revealed that the incident appeared to be over a pair of sunglasses belonging to Cruz. According to
Powell's report, Cruz accused another inmate, White, of taking them. After an argument between Cruz and White ensued,
other inmates joined in. The argument became physical when one of the other inmates punched White. Yet another inmate
then swung a chair at Cruz. The fighting escalated, resulting in the repeated stabbing of still another inmate. Powell's
Report did not mention that Cruz actually participated in the fight. In fact, Powell's Report indicates only that Cruz was
the victim of an assault.
At the conclusion of the hearing, the DHO informed Cruz that he had been found guilty of the two charges and would be
sanctioned with the loss of a total of 90 days' good time. After the hearing, Cruz was placed back in lock-up. In addition,
the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record") for each of the two charges.
According to the Reports, the DHO found Cruz guilty of the charges based on Officer Bolden's Report and the report from
Special Investigator Powell, "which states what actions the Inmates committed and the fact that the Inmates were involved
in an altercation and disturbance in the Edisto A-Wing." The Hearing Records also states that Cruz lost a total of 90 days'
good-time credit as a result of the convictions.
On April 28, 2000, Cruz was brought out of lock-up to appear before the Institutional Classification Committee. The
Committee's Review states that Cruz should be released from lock-up and returned to the general population. In addition,
the Review recommended that Cruz be transferred to another facility because he had twice been victimized at Lieber. At
some point prior to his appeal, Cruz was transferred to Kershaw Correctional Institution.
"Fighting without a Weapon" is defined as "any group of two or more inmates who engage in a physical altercation."
Department Policy OP-22.14, Appendix A, 3(b)(10). "Inciting/Creating a Disturbance" is defined, in pertinent part, as:
any act or activity which results in a disruption of institutional operations or a breach of institution security. Any inmate
who purposefully incites or urges a group of two or more other inmates to engage in a current or impending disturbance of
institutional operations or gives commands, directions, instructions, or signals to a group of two or more persons to cause,
continue, or enlarge a disturbance; or acts individually in such a way as to cause a disruption of institutional operations... .
A disturbance as used herein is an assemblage of three or more persons which creates grave danger or damage or injury to
property or persons and/or substantially disrupts the normal functioning of the institution.
Department Policy OP-22.14, Appendix A, 3(b)(12).
III. STANDARD OF REVIEW
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). On September 5, 2001, the Division issued an En Banc Order
in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), 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 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, Cruz lost 90 days of good time after he was convicted of prison disciplinary infractions. As such, I find that
this tribunal has jurisdiction to hear Cruz's appeal.
In its appellate capacity, the Division may not substitute its judgment for that of a state agency as to the weight of the
evidence on questions of fact. See Long Cove Home Owners' Assoc. v. Beaufort Cnty. Tax Equalization Bd., 327 S.C.
135, 139, 488 S.E.2d 857, 860 (1997); Marietta Garage, Inc. v. South Carolina Dept. of Pub. Safety, 337 S.C. 133, 522
S.E.2d 605, 607 (Ct. App. 1999). However, the Division may reverse or modify a decision of the Department that is clearly
erroneous in light of the substantial evidence in the record. See Long Cove, 327 S.C. at 139, 488 S.E.2d at 860.
"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, Inc., 276 S.C. 130, 276
S.E.2d 304, 306 (1981); see Al-Shabazz, 338 S.C. 354, 380, 527 S.E.2d at 755-56.
IV. DISCUSSION
The Fourteenth Amendment's guarantee of procedural due process applies only to the deprivation of a life, liberty, or
property interest. Board of Regents of State College v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972). The statutory
right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz, 338 S.C. at
369-370, 527 S.E.2d at 750. An inmate facing the loss of sentence related credits is entitled to minimal due process to
ensure that the state-created right is not arbitrarily abrogated. 338 S.C. at 370, 527 S.E.2d at 750. While due process is
"flexible and calls for such procedural protections as the particular situation demands," Stono River Envtl. Protection
Ass'n v. S.C. Dept. of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 341 (1991), certain elements must be
satisfied in order for procedural due process requirements to be met, 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,
338 S.C. at 371, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
In this case, it is certainly questionable whether Cruz was afforded all process he was due. Although the Department
provided him two counsel substitutes, there is no indication from the Record that either counsel substitute was fluent in
Spanish. Assuming, however, that Cruz was afforded all process he was due, I find that the Department's determination of
guilt in this case is clearly erroneous in light of the substantial evidence in the Record. Accordingly, the Department's
final decision is reversed.
With regard to the Fighting without a Weapon conviction, there is no evidence in the Record that Cruz engaged in "a
physical altercation." In fact, both reports taken into evidence by the DHO reveal that Cruz was a victim of a physical
assault. Further, Cruz testified through his counsel substitute that he was repeatedly assaulted by several inmates after he
refused to pay them money to return his sunglasses.
With regard to the Inciting/Creating a Disturbance conviction, there is no evidence that Cruz "purposefully incite[d] or
urge[d] a group of two or more other inmates to engage in a current or impending disturbance...or [gave] commands,
directions, instructions, or signals to a group ...to cause, continue, or enlarge a disturbance." While there may be "some
evidence" that, by refusing allow White to extort payment for the return of his glasses, Cruz committed an "act or activity
which results in a disruption of institutional operations or a breach of institution security," such an application of the charge
would effect an absurd result. Using the same logic, Cruz would be guilty of Inciting/Creating a Riot if he dropped a
dollar on the floor of the cafeteria and was trampled when a dozen inmates, all going after the dollar, started a melee.
Finally, it must be noted that the Institutional Classification Committee found that Cruz was "victimized" on the date of the
"Edisto Incident," as well as at least one other occasion. Surely the Department is not in the habit of punishing the
unwitting victims of prison violence simply because they, for whatever reason, have been chosen by other prisoners to
victimize.
V. ORDER
IT IS THEREFORE ORDERED THAT the Final Decision of the Department is REVERSED;
IT IS FURTHER ORDERED THAT the Department credit Cruz with the 90 days worth of "good-time" credits lost as a
result of his conviction;
IT IS FURTHER ORDERED THAT the Department credit Cruz with any good-time credit he failed to earn as a result of
his conviction.
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 7, 2001
Columbia, South Carolina |