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. 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
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