SC Administrative Law Court Decisions

INTRODUCTION

This matter is before the South Carolina Administrative Law Court (“ALC”) pursuant to the Notice of Appeal filed February 6, 2007, by Appellant David S. Clegg (“Clegg”), an inmate incarcerated with the South Carolina Department of Corrections (“Department”). On September 26, 2006, Clegg was convicted of violating SCDC Disciplinary Code 806, “Any Act Defined as a Felony by the Laws of the State of S.C. or the U.S.”[1] As a result of his conviction, Clegg lost 500 days of good time credit; had visitation suspended for 540 days; had canteen and phone privileges suspended for 540 days; and received 360 days of disciplinary detention. Clegg filed a grievance with the Department and received a final agency decision on or about January 11, 2007. On February 6, 2007, Clegg filed this appeal. After a careful review of the record and the arguments, the court affirms the decision of the Department.

FACTS

On June 24, 2006, Ashley Donald arrived at the Tyger River Correctional Institution for visitation with Clegg. When Donald entered the prison facility, one of the drug dogs alerted the prison staff that Donald had drugs. Donald consented to a search of her person and later admitted to having drugs in her vehicle. Upon searching Donald’s vehicle, prison officials discovered illegal drugs, prescription drugs, and drug paraphernalia. Based on this incident, and other related evidence collected by both prison officials and the local sheriff’s department, the Department believed Clegg and Donald were attempting to introduce the drugs into the prison facility; for that reason, the Department charged Clegg with Any Act Defined as a Felony. In addition, the state charged Clegg with criminal conspiracy; however, at the time of Clegg’s disciplinary hearing, Clegg had not been tried for this criminal charge.

At Clegg’s prison disciplinary hearing, Lieutenant Duncan testified that his report was true and accurate. Clegg was represented by counsel substitute and given the opportunity to ask questions of the witnesses, Lieutenant Duncan and Investigator Hurt. The disciplinary hearing officer (“DHO”) found Clegg guilty based on Lieutenant Duncan’s testimony, Investigator Hurt’s testimony, a photograph of the evidence seized from Donald, and a copy of the visitation pass issued to Donald.

JURISDICTION AND REVIEW

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, Clegg has been disciplined for violating Department Disciplinary Code 806, and as a result, has been deprived of 500 days of his good time credits. Accordingly, the court 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 ALC 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. 2006) (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).

DISCUSSION

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).

Clegg alleges his due process rights were violated based on the following assertions: (1) the Department did not follow its own policies or procedures; (2) Clegg was represented by counsel substitute and not a licensed attorney; (3) it was error for the DHO to base his guilty finding on a photo of drug contraband because it was evidence of Clegg’s other charge of Abuse of Privileges, and not the charge of Any Act Defined as a Felony; and (4) the DHO was prejudiced against Clegg because of Clegg’s pending criminal charges. The court will address each of these in turn.

1. Department Policies and Procedures

Clegg alleges his due process rights were violated because of the Department’s failure to follow its own policy. Specifically, Clegg alleges the following policies were not followed: (1) the employee number of the employee reporting the incident must be on the incident report, South Carolina Department of Corrections Manual for Operations, Inmate Disciplinary System, No. OP-22.14. at ¶ 3; (2) a full statement of the facts underlying the offense must be included in the Incident Report, id.; (3) the inmate must be given a pre-hearing detention placement form; and (4) the DHO must produce Form 19-79, which is required if a controlled substance is involved in the charge, id. at ¶ 13.1. 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”).

2. Representation by Counsel Substitute and not a Licensed Attorney

Clegg claims that, because of his related pending criminal charges, Clegg was entitled to representation by an attorney at his disciplinary proceeding, and not merely counsel substitute. Clegg raises this issue for the first time on appeal. 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. v. S.C. Tax Comm’n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995). For this reason, Clegg did not properly preserve this issue for appeal.

3. Abuse of Privileges Charge

Clegg claims that the DHO erred in considering a photograph to support his guilty finding of Any Act Defined as a Felony because it is not a photograph of the evidence taken from Donald’s vehicle; rather, the photographic evidence corresponds with Clegg’s other charge of Abuse of Privileges and shows contraband seized from a truck on prison grounds. Clegg’s Abuse of Privileges charge stems from Clegg’s use of the prison phone to coordinate drug activities with an outside individual. Based on Clegg’s conversations from inside the prison overheard by prison officials, a search of the prison parking lot was conducted, and contraband was discovered inside a truck. The photograph in question shows the items discovered in the truck. While this evidence is relevant to Clegg’s charge of Abuse of Privileges, it is also relevant to Clegg’s charge of Any Act Defined as a Felony, because the record clearly demonstrates that both of Clegg’s charges are related. Both charges stem from the same incident report, and as the DHO stated during the disciplinary hearing, “It’s believed the phone abuse [Abuse of Privileges] is part of the overall drug activity involving the 2nd charge [Any Act Defined as a Felony].” (H’rg Tr. at 5). Thus, the photograph evidence is relevant to both charges.

4. Prejudice by the DHO Against Clegg Due to Pending Criminal Charges

Clegg claims that, because the DHO knew of Clegg’s pending criminal charges, the DHO was prejudiced. Clegg further claims that the DHO, the warden, and the investigator conspired to ensure that Clegg would be found guilty of the charges brought against him at the prison disciplinary hearing. However, Clegg provided no evidence of the DHO’s lack of impartiality other than his unsupported assertions. Cf. Christensen v. Mikell, 324 S.C. 70, 74, 476 S.E.2d 692, 694 (1996) (“It is not enough for a party to allege bias; a party seeking disqualification of a judge must show some evidence of bias or prejudice.”). Therefore, the court finds this argument to be without merit.

CONCLUSION

Having fully considered the briefs and documents filed by Clegg 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 Clegg’s disciplinary conviction must be affirmed. Clegg was afforded all the due process requirements outlined in Al-Shabazz: he received adequate notice of the charges, adequate opportunity for a hearing in which he could present witnesses and documentary evidence, a counsel substitute, and an impartial hearing officer who provided a statement of the evidence presented and the reasons for his decision. Al-Shabazz, 338 S.C. at 371, 527 S.E.2d at 751 (citing Wolff, 418 U.S. at 563-72). Therefore, based upon the record, the court finds that Clegg was afforded due process of law.

Clegg has not shown that the disciplinary hearing conducted by the DHO was procedurally unsound. The DHO’s conclusions are sufficiently supported by substantial 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, Clegg’s conviction must stand. It is therefore

ORDERED that the Department’s decision is AFFIRMED.

IT IS SO ORDERED.

________________________________

PAIGE J. GOSSETT

Administrative Law Judge

June 9, 2008

Columbia, South Carolina