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SC Administrative Law Court Decisions

Tyrikus Perry, #314037 vs. SCDOR

South Carolina Department of Corrections

Tyrikus Perry, #314037

South Carolina Department of Corrections



Grievance No. TYRCI 1367-06


This matter is before the South Carolina Administrative Law Court (“ALC”) pursuant to the Notice of Appeal filed February 6, 2007, by Appellant Tyrikus Perry (“Perry”), an inmate incarcerated with the South Carolina Department of Corrections (“Department”). On October 5, 2006, Perry was convicted of violating SCDC Disciplinary Code 811, Possession of a Weapon.[1] As a result of his conviction, Perry lost 30 days of good time credit; had visitation suspended for 360 days; had canteen and phone privileges suspended for 360 days; and received 180 days of disciplinary detention. Perry filed a grievance with the Department and received a final agency decision on or about January 23, 2007. On February 6, 2007, Perry filed this appeal. After a careful review of the record and the arguments, the court affirms the decision of the Department.


On September 25, 2006, Officer Huffstetler charged Perry with Possession of a Weapon. Officer Huffstetler reported that, while conducting a security check, he found a piece of a bed spring sharpened to a point, lying on Perry’s bed. During his disciplinary hearing, Perry was given the opportunity to ask questions of his accuser, Officer Huffstetler. The disciplinary hearing officer (“DHO”) found Perry guilty based on Officer Huffstetler’s report and testimony and a photo of the weapon.


The ALC has appellate jurisdiction over any properly perfected appeal. Slezak v. S.C. Dep’t of Corr., 361 S.C. 327, 331, 605 S.E.2d 506, 507 (2004). The ALC has subject matter jurisdiction when the Department disciplines an inmate and imposes a punishment that deprives
the inmate of a constitutionally protected liberty or property interest. Sullivan v. S.C. Dep’t of Corr., 355 S.C. 437, 441-42, 586 S.E.2d 124, 126 (2003); Al-Shabazz v. State, 338 S.C. 354, 369, 527 S.E.2d 742, 750 (2000); Skipper v. S.C. Dep’t of Corr., 370 S.C. 267, 273-74, 633 S.E.2d 910, 914 (Ct. App.).

In this case, Perry has been disciplined for Possession of a Weapon, and as a result, has been deprived of 30 days of his good time credits. Accordingly, the court finds that it has jurisdiction to adjudicate this appeal. See Al-Shabazz, 338 S.C. at 369-70, 527 S.E.2d at 750 (stating the statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment).

The ALC reviews decisions of the Department in an appellate capacity and is “restricted to reviewing the decision below.” Al-Shabazz, 338 S.C. at 354, 527 S.E.2d at 742. When acting in an appellate capacity, the ALJ must apply the criteria of S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007). See S.C. Code Ann. § 1-23-380(B) (Supp. 2007) (directing Administrative Law Judges to conduct a review “in the same manner prescribed in [§1-23-380] (A)”). This section provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] 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.

S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007).


If an inmate properly alleges a deprivation of a liberty or property interest, the court must determine whether the Department afforded the inmate due process of law in accordance with Wolff v. McDonnell, 418 U.S. 539 (1974), and Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), before depriving him of that protected interest. These requirements include:

(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.

Al-Shabazz, 338 S.C. at 371, 527 S.E.2d at 751 (citing Wolff, 418 U.S. at 563-72).

Perry alleges his due process rights were violated because of the Department’s failure to follow its own policy. Specifically, Perry alleges the following policies were not followed: (1) the supervisor will decide whether to refer the inmate to the “Major/Responsible Authority,” South Carolina Department of Corrections Manual for Operations, Inmate Disciplinary System, No. OP-22.14. (hereinafter “Department Manual”), at ¶ 3.5; (2) a full statement of the facts underlying the offense, including witnesses and evidence, must be included in the incident report, id.; and (3) the name and inmate number of the charged inmate must be included in the incident report, id. However, these are issues that were not raised in the hearing, nor in Perry’s Step 1 or Step 2 Grievance. In reviewing the DHO’s decision, the court has a limited scope of review, and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency.Kiawah Resort Assocs., 318 S.C. at 505, 458 S.E.2d at 544. For this reason, Perry did not properly preserve this issue for appeal.

Even if Perry had properly preserved this issue, these arguments are without merit. “A prison official’s failure to follow the prison’s own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met.” Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996); see also S.C. Code Ann. § 1-23-10 (2005) (the term “regulation” does not include “orders of the supervisory or administrative agency of a penal . . . institution, in respect to the institutional supervision, custody, control, care, or treatment of inmates, prisoners, or patients”).

Perry also claims that he never should have been charged with Possession of a Weapon because the alleged weapon belonged to Perry’s former cellmate, who had been moved from the room immediately prior to Perry’s return to his cell. Perry claims that if the prison officials had conducted their search prior to Perry returning to his cell, the prison officials would have discovered the weapon at that time, and Perry would not have been charged. This appears to be an argument related to Department policy and procedure. As stated above, a prison official’s failure to follow prison procedure does not violate due process. See Myers, 97 F.3d at 94. Furthermore, in Al-Shabazz, the Court emphasized that because prison officials are in the best position to decide inmate disciplinary matters, the courts adhere to a “hands off” approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the Administrative Procedure Act (“APA”). Al-Shabazz 338 S.C. at 381-81, 527 S.E.2d at 756-57; 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). The fact that reasonable minds could reach differing conclusions from the evidence does not prevent the Department’s conclusion from being drawn from substantial evidence. Lee v. Harborside Café, 350 S.C. 74, 564 S.E.2d 354 (Ct. App. 2002); Jennings v. Chambers Dev. Co., 335 S.C. 249, 516 S.E.2d 453 (Ct. App. 1999).


Having fully considered the briefs and documents filed by Perry and the Department and viewing the record as a whole, under the standards set out in § 1-23-380(A) and (B), Wolff v. McDonnell, 418 U.S. 539 (1974), and Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the court finds that Perry’s disciplinary conviction must be affirmed. Perry has not shown that the disciplinary hearing conducted by the DHO was procedurally unsound. The DHO’s conclusions are sufficiently supported by the evidence in the record. Further, there is nothing in the record to suggest that the Department’s decision was arbitrary, capricious, or the result of personal bias or prejudice. See Al-Shabazz, 338 S.C. at 381, 527 S.E.2d at 757 (citing Brown v. Evatt, 322 S.C. 189, 194, 470 S.E.2d 848, 854 (1996); Crowe v. Leeke, 273 S.C. 763, 764, 259 S.E.2d 614, 615 (1979)). Accordingly, Perry’s conviction must stand. It is therefore

ORDERED that the Department’s decision is AFFIRMED.




Administrative Law Judge

June 9, 2008

Columbia, South Carolina

[1] Perry was also convicted of two other charges on October 5, 2006: SCDC Disciplinary Code 814, Inciting/Creating a Disturbance, and 828, Out of Place. Although Perry wrote one Appellant’s Brief addressing all three convictions, each conviction was appealed separately, and is thus considered a separate case before the ALC. Perry’s appeal for his conviction for Inciting/Creating a Disturbance is addressed in docket number 07-ALJ-04-00107-AP, and Perry’s appeal for his conviction for Out of Place is addressed in docket number 07-ALJ-04-00108-AP.


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