SC Administrative Law Court Decisions

Robert Caprood (Caprood) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Caprood of the use of obscene, vulgar, or profane language for which he lost 90 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Caprood was punished by the loss of good time credits, a loss which impacts a created liberty interest. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000); McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). After a review of the record and the arguments, the DOC decision is VACATED and this matter is REMANDED for a new hearing.

In this review, the Administrative Law Judge (ALJ) acts "in an appellate capacity" and is "restricted to reviewing the decision below." Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 754 (2000). The review must apply the criteria of S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000). See S.C. Code Ann. § 1-23-380(B) (Supp. 2000) (where an ALJ is directed to conduct a review "in the same manner prescribed in [§ 1-23-380](A)."). Section 1-23-380(A)(6) establishes the following:

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In this case, Caprood argues that the DOC decision is made upon unlawful procedure.

Caprood argues the hearing was carried out under unlawful procedure since DOC failed to provide the due process required.

Due process for an inmate subjected to the loss of good time credits requires the following procedures:

(1) that advance written notice of the charge be given to the inmate at least twenty-four hours before the hearing; (2) that factfinders must prepare a written statement of the evidence relied on and reasons for the disciplinary action; (3) that the inmate should be allowed to call witnesses and present documentary evidence, provided there is no undue hazard to institutional safety or correctional goals; (4) that counsel substitute (a fellow inmate or a prison employee) should be allowed to help illiterate inmates or in complex cases an inmate cannot handle alone; and (5) that the persons hearing the matter, who may be prison officials or employees, must be impartial. Wolff, 418 U.S. 563-72, 94 S.Ct. 2978-82, 41 L.Ed.2d at 954-60.

Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 751 (2000)

In the instant case Caprood argues he was not allowed to call witnesses and present documentary evidence since he was denied the right to attend the hearing.

The rights granted in Wolff v. McDonnell, 418 U.S. 539 (1974) do not expressly state that an inmate has a right to be present during a disciplinary hearing. However, as a part of the inmate's due process right to call witnesses and present evidence, courts have generally held that an inmate has a right to be present at his own disciplinary hearing but that right is conditioned on "maintaining institutional safety and other correctional goals." See Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir.1989) ("[T]he question presented in this case is not whether a prisoner must be given the opportunity to attend the hearing, but rather whether a prisoner's right to attend the hearing is "absolute" in the sense that the hearing cannot under any circumstances be conducted without him. We hold that a prisoner does not have such a right."); Battle v. Barton, 970 F.2d 779, 782 (11th Cir. 1992) ("Notwithstanding the fact that an inmate has a due process right to be present at his own prison disciplinary hearing, the Supreme Court has made clear that the rights accorded inmates at disciplinary hearings are not absolute, and are limited by 'the competing concerns of maintaining institutional safety and other correctional goals.' Smith v. Massachusetts Dept. of Corrections, 936 F.2d 1390, 1399 (1st Cir.1991)."); Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 2196, 85 L.Ed.2d 553 (1985) (due process is met "so long as the reasons [for depriving an inmate of his rights] are logically related to 'institutional safety or correctional goals'....".). Further, an inmate may waive a procedural due process right if the inmate makes a "knowing, voluntary and intelligent decision" to waive the right under review. See e.g. People v. Corley, 67 N.Y.2d 105, 110, 500 N.Y.S.2d 633, 491 N.E.2d 1090 (1986) (inmate waiving right to attend hearing). Thus, Caprood could properly be denied being present at the hearing if the denial was "logically related to 'institutional safety or correctional goals'" or his decision to waive attendance was the result of a "knowing, voluntary and intelligent decision" to waive.

Here, DOC does not present an institutional safety or correctional goal as basis for Caprood not attending the hearing. Rather, DOC argues Caprood waived his right to be present at the hearing. I disagree.

The transcript explains that Caprood declined to speak with his counsel substitute since he felt he should not have to do so through a locked door. However, Caprood was not asked if he wished to waive his right to be present at the hearing. Rather, his actions of not speaking to his counsel substitute were assumed to constitute a waiver of the right to attend the hearing. Such an assumption fails to constitute a knowing waiver. Such is especially true since Caprood's form 19-69 does not state that he wished to waive his right to be present. Given the lack of a plain statement by Caprood to waive and given a form signed by Caprood which expressed an intent to be present, no waiver occurred.

The guilty verdict entered by DOC against Robert Caprood is VACATED and this matter is REMANDED for a new hearing.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 23, 2002

Columbia, South Carolina