SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Theodore Bailey, an inmate incarcerated with the Department of Corrections (DOC or Department). Bailey was convicted of violating SCDC Disciplinary Code 2.09, Sexual Misconduct. As a result of his conviction, Bailey lost twenty (20) days of "good-time" credit. Bailey filed a grievance with the Department and received the Department's final decision on March 8, 2001. On March 30, 2001, Bailey filed this appeal.

On January 23, 2001, Officer Bunch, a DOC employee, was working in Allendale Correction Institution. The Appellant began staring at her and then exposed his penis while stroking it in front of her. After the incident, Officer Bunch completed an Incident Report and submitted it to his supervisor. The Appellant was charged with violating SCDC Disciplinary Code 2.09, Sexual Misconduct. He received written notice of the charges on January 23, 2001. On January 29, 2001, the Appellant was brought before a DOC Disciplinary Hearing Officer (DHO) to face the Sexual Misconduct charge in a Major Disciplinary Hearing. During the hearing, the Appellant was represented by counsel substitute. He also requested that Officer Bunch not be present. At the hearing, the DHO read a narrative of Officer Bunch's Incident Report into the Record as evidence. At the conclusion of the hearing, the DHO found the Appellant guilty of Sexual Misconduct and sanctioned him with the loss of twenty (20) 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 February 5, 2001, appealing his conviction of violating SCDC 2.09. After reviewing his allegation, the Warden denied the Appellant's grievance on February 12, 2001, finding that there were no procedural errors in the offense charged or his hearing. He appealed the Warden's decision on February 16, 2001, 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 Appeal Brief, the Appellant alleges that he was denied due process because he was not allowed to question the charging officer concerning her eyesight. The Appellant also contends that the evidence did not support the finding of guilt.

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 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 excessively revoked twenty (20) 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 "major disciplinary hearings" 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).

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 "major disciplinary hearings" involving "more serious rule violations" comports 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. Al-Shabazz. 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, 276 S.E.2d 304 (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, 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. 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. In fact, his counsel substitute specifically questioned Officer Bunch concerning her viewpoint and whether she needed and was wearing glasses at the time of the incident. 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 Code2.09, Sexual Misconduct. A Code 2.09 violation is: "Engaging in sexual acts with others, engaging in sexual acts or wilful exposure of private body parts in public, or soliciting sexual acts from other, or homosexual conduct involving physical contact (i.e., kissing)." Officer Bunch's version of what occurred was vastly different from that of the Appellant. The Record clearly supports the facts recited in the "Background" portion of this Order. Those facts establish sufficient evidence to support the Department's determination that the Appellant wilfully exposed his "private body parts in public." Furthermore, "[t]he fact finder is imbued with broad discretion in determining credibility or believability of witnesses." Small v. Pioneer Machinery, Inc., 329 S.C. 448, 465, 494 S.E.2d 835, 843 (1998). Therefore, it was the DHO's prerogative to decide what part of each witness' testimony she believed or disbelieved.

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.

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Ralph K. Anderson, III

Administrative Law Judge

November 4, 2002

Columbia, South Carolina