South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Olin Roach, #318589 vs. SCDOR

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
Olin Roach, #318589

Respondents:
South Carolina Department of Corrections
 
DOCKET NUMBER:
07-ALJ-04-01042-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER
Grievance No. MCI 0085-07

INTRODUCTION

This matter is before the South Carolina Administrative Law Court (“ALC”) pursuant to the Notice of Appeal filed October 23, 2007, by Appellant Olin Roach (“Roach”), an inmate incarcerated with the South Carolina Department of Corrections (“Department”). On May 16, 2007, Roach was convicted of violating SCDC Disciplinary Code 903, Use/Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs. As a result of his conviction, Roach had visitation suspended for 365 days; had canteen, property, and phone privileges suspended for 365 days; and received 10 days of disciplinary detention. Roach filed a grievance with the Department and received a final agency decision on October 10, 2007. On October 23, 2007, Roach filed this appeal. After a careful review of the record and the arguments, the court affirms the decision of the Department.

BACKGROUND

On April 28, 2007, Officer K. Willis charged Roach with Use/Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs. Officer Willis reported that, after asking Roach to remove his shoes after he had left the visitation area, a clear bag containing twelve peach-colored pills fell from Roach’s foot. During his disciplinary hearing, Roach was represented by counsel substitute and given the opportunity to ask questions of his accuser, Officer Willis, as well as Willis’s supervisor, Sergeant Howell. The disciplinary hearing officer (“DHO”) found Roach guilty based on Officer Willis’s report and testimony, Sergeant Howell’s testimony, a photo of the pills, and a report identifying the pills as the prescription drug, Xanax, and indicating that Roach had no prescription for Xanax.

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, Roach has been disciplined for Use/Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs, and as a result, has failed to earn 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); Furtick v. S.C. Dep’t of Corr., 374 S.C. 334, 340, 649 S.E.2d 35, 38 (2007) (ALC has jurisdiction over cases involving inmates who were not eligible to earn good time credits).

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).

DISCUSSION

I. Due Process Argument

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).

Roach alleges his due process rights were violated because of the Department’s failure to follow its own policy. Specifically, Roach alleges the Department (1) did not timely process his grievance pursuant to South Carolina Department of Corrections Manual for Operations, Inmate Disciplinary System, No. OP-22.14, at ¶ 17; the DHO turned off the tape during the hearing, id. at ¶ 10; and the DHO did not accept Roach’s written statement at the hearing, nor did the DHO provide an explanation for his failure to accept Roach’s written statement, id. at ¶¶ 7 & 16. 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”). Furthermore, as to Roach’s claim that the DHO failed to accept Roach’s written statement for consideration at the hearing, the hearing transcript shows that the DHO permitted Roach to read his written statement out loud at the hearing. (See H’rg Tr. at 3-4).

Thus, Roach 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. Therefore, based upon the record, the court finds Roach was afforded due process of law.

II. Substantial Evidence Argument

Roach also argues that there was not substantial evidence to support a conviction of the charge of Use/Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs. In determining whether substantial evidence exists to support an agency decision, an administrative law judge may not substitute her judgment for “the judgment of the agency as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(A)(5); see also Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756. Furthermore, an administrative law judge may not reverse or modify an agency’s decision unless the Appellant’s substantial rights have been prejudiced because the decision is either clearly erroneous in view of the substantial evidence on the whole record, arbitrary, or affected by an error of law. See id.; see also Marietta Garage, Inc. v. S.C. Dep’t of Pub. Safety, 337 S.C. 133, 522 S.E.2d 605 (Ct. App. 1999); S.C. Dep’t of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998).

The South Carolina Supreme Court has defined “substantial evidence” as

relevant evidence that, considering the record as a whole, a reasonable mind would accept to support an administrative agency’s action. Substantial evidence exists when, if the case were presented to a jury, the court would refuse to direct a verdict because the evidence raises questions of fact for the jury. It is more than a mere scintilla of evidence, but is something less than the weight of the evidence. Furthermore, the possibility of drawing two inconsistent conclusions from the evidence does not prevent a court from concluding that substantial evidence supports an administrative agency’s finding.

Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756 (citing Porter v. S.C. Pub. Serv. Comm’n, 333 S.C. 12, 507 S.E.2d 328, 332 (1998); Lark v. Bi‑Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981)).

Additionally, 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 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). Therefore, if reasonable minds could arrive at the DHO’s conclusion based upon the evidence presented, the Department’s decision must be upheld.

Roach claims that Officer Willis’s testimony and report are ambiguous regarding whether the bag of pills was stuck to Roach’s foot or his shoe, and are thus insufficient to constitute substantial evidence supporting the DHO’s conclusion.[1] However, during the hearing, Officer Willis clarified that the pills had been stuck to the bottom of Roach’s foot, and not his shoe. The DHO found Roach guilty based on Officer Willis’s report and testimony, Sergeant Howell’s testimony, a photo of the pills, and a report identifying the pills as the prescription drug, Xanax, and identifying that Roach had no prescription for Xanax. The court finds that there was sufficient evidence in the record to allow the Department to reach the conclusion that Roach is guilty of Use/Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs. 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).

CONCLUSION

Having fully considered the briefs and documents filed by Roach 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 Appellant’s disciplinary conviction must be affirmed. Roach has not shown that the disciplinary hearing conducted by the DHO was procedurally unsound or that the Department’s conclusions were unsupported by substantial evidence. 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, Roach’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



[1] The court notes that the South Carolina Rules of Evidence do not apply in Department grievance proceedings. Al-Shabazz, 338 S.C. at 374-75, 527 S.E.2d at 752-53 (holding that the provision in the Administrative Procedures Act requiring the South Carolina Rules of Evidence to be used does not apply to inmate disciplinary and grievance proceedings before the Department). See also Rudd v. Sargent, 866 F.2d 260 (8th Cir. 1989) (citing Wolff v. McDonnell, 418 U.S. 539, 556, 567-69 (1974)) (holding that an incident report which would constitute hearsay in a criminal prosecution may be considered in a disciplinary hearing).


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