SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before me pursuant to the appeal of Alexander Bradley (Appellant), from a decision by the State Employee Grievance Committee. The Petitioner appealed that decision to the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 8-17-340 (F) (2007). Oral arguments were heard on June 3, 2008. Upon consideration of the briefs and the arguments presented at the hearing, together with a review of the applicable law, the decision of the Department is affirmed.

STANDARD OF REVIEW

As set forth above, this case is before the Court on appeal from a Final Order of the Department pursuant to S.C. Code Ann. § 1‑23‑600 (D) of the Administrative Procedures Act (APA). As such, the Administrative Law Judge sits in an appellate capacity under the APA rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380 (A)(5) -- govern the circumstances in which an appellate body may reverse or modify an agency decision. That section states:

The court may reverse or modify the decision 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)(6) (Supp. 2005).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C.130, 276 S.E.2d 304 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, 467 S.E.2d 913, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).

BACKGROUND

Appellant was employed with the South Carolina Department of Corrections (Department) for six years, with a five month break in late 2001 during which he was employed by the Florence Sheriff’s Department. Appellant spent his entire career with the Department at Lee Correctional Institution. During an incident on July 31, 2006, Appellant used a “leg sweep” maneuver on an inmate, who was handcuffed behind his back, causing the inmate to be thrown to the floor with no provocation on the inmate’s part. The Sergeant assisting the Appellant, Sergeant Deborah Walker, yelled for Appellant to “get off of the inmate.” Because Appellant’s fellow officers feared Appellant might heave the inmate down the stairs, Appellant was ordered to unhand the inmate while another Corporal took control of him.

The Department found that contrary to Appellant’s assertions, the Inmate did not “jerk” or pull away from the Appellant. Moreover, because the inmate was handcuffed behind his back, he had no way of defending himself. The Department concluded that in light of the fact that Appellant had been employed as a corrections officer for six years, Appellant was distinctly aware of both its procedures and of the repercussions for using unnecessary and/or excessive force on a restrained inmate. Furthermore, during his employment, Appellant received a sixteen (16) hour suspension for negligence and a forty (40) hour suspension for leaving his post. The Department therefore terminated Appellant’s employment on January 26, 2007 for violating SCDC Policy/Procedure ADM-11.04, Use of Unnecessary and Excessive Force against an inmate, Pierre Livingston, # 313099. Appellant thereafter grieved the Department’s decision.

ISSUES ON APPEAL

1. Did the State Employee Grievance Committee err as a matter of fact and conclusion of law in finding that the Appellant violated SCDC Policy by use of unnecessary and/or excessive force?

2. Did the State Employee Grievance Committee err as a matter of fact and conclusion of law in finding that Appellant had not established that the Department’s decision was clearly erroneous in view of reliable, probative and substantial evidence?

DISCUSSION

The Appellant made separate arguments that: 1) he did not violate SCDC Policy by Use of Unnecessary and/or Excessive Force; and 2) the Committee's decision was clearly erroneous in view of reliable, probative and substantial evidence on the whole record and arbitrary and capricious. Both of these arguments challenge whether the Committee’s decision that Appellant used unnecessary or excessive force was supported by substantial evidence. The Committee found that:

Appellant failed to show that the use of force he exhibited on July 31, 2007, with [the inmate] was necessary.  There were three individuals who were present or observed the entire incident on July 31, 2006, Appellant, Sergeant Walker, and Livingston.  Appellant’s account of the incident differs from that of Livingston and Sergeant Walker.  Sergeant Walker and Livingston’s version of the incident, however, are essentially the same.  Furthermore, Sergeant Walker provided consistent and credible information with regards to her account of the incident.  Livingston was restrained with handcuffs and was generally compliant and cooperative.  He posed no significant threat to Appellant or anyone else.  [The inmate], however, sustained injury to his chin as a result of being thrown to the floor while in handcuffs.

The Department’s use of force policy provides in part that “[t]rained staff members are authorized to apply the reasonable use of less than lethal and/or the minimum mechanical security restraints necessary for self defense, defense of others, and/or to gain control of an inmate who appears to be dangerous because the inmate:

·                     Assaults or attempts to assault another individual;

·                     Attempts suicide;

·                     Inflicts or attempts to inflict injury upon self;

·                     Becomes violent or displays signs of imminent violence;

·                     Attempts escape or escapes;

·                     Attempts to destroy or destroys property; or

·                     Refuses to obey a lawful order.”

SCDC Policy/Procedure Op.-22.01 § 2.1 (emphasis added). The Department’s use of force policy further provides that a “force continuum” be followed sequentially, beginning with show of force, control techniques/defense tactics and chemical munitions and leading all of the way up to use of firearms. SCDC Policy/Procedure Op.-22.01 § 3.[1] “Defensive tactics include evasion/escape techniques, releases, counters to attacks, and takedowns.” SCDC Policy/Procedure Op.-22.01 § 4. All uniformed certified staff members receive training in defensive tactics during the Department’s Correctional Officer Certification Training and annual training. SCDC Policy/Procedure Op.-22.01 § 4. These tactics should be used successively unless the situation “has escalated to a degree which prevents this sequential order of force.” SCDC Policy/Procedure Op.-22.01 § 3. In other words, the Department’s use of force policy provides that when a staff member uses defensive tactics, he must “employ a control technique(s) designed to ensure the safest manner of reasonable force necessary to gain control.” SCDC Policy/Procedure Op.-22.01 § 4. Excessive Force refers to “force beyond that which is necessary to control the situation or the continued use of force after the force is no longer necessary.” SCDC Policy/Procedure Op.-22.01 § 21.

Need for the Use of Force

Appellant argues that the Committee’s decision is erroneous because he perceived a cognizable threat of harm. Appellant contends that the evidence establishes that after he gave the inmate directives to stop “pulling and jerking away” from him, he determined that the inmate posed a threat to the institution and administered a leg sweep to subdue the inmate. That determination was based in part upon his knowledge that inmates often come out of their handcuffs. There was evidence in the Record including Appellants testimony at the State Employee Grievance Hearing to support his contention.[2]

Nevertheless, there is also evidence in the Record to support the Committee’s finding that Appellant used unnecessary force. The APA provides that “[t]he court may not substitute its 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). Additionally, in the seminal case on substantial evidence, the Supreme Court held that the substantial evidence rule means that the court will not overturn a finding of fact by an administrative agency “unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based.” Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981) quoting Independent Stave Co. v. Fulton, 251 Ark. 1086, 476 S.W.2d 792 (1972).[3] Here, Sergeant Walker testified that on the day of the incident, she was assigned to the Special Management Unit (SMU) at Lee Correctional Institution and was assigned the task of escorting inmates from their cells to the showers. She testified that there was never a time that she could not see the Appellant as he escorted the inmate from the shower and, in fact, she testified that she was close enough to both the Appellant and the inmate to touch their shoulders. Moreover, Sergeant Walker testified that the inmate never jerked away from the Appellant. The Committee explicitly relied upon that testimony.[4]

Furthermore, the evidence also supports the Committee’s determination that the inmate presented no cognizable threat to the Appellant. There was no testimony by any witness at the Committee hearing or in the Agency’s internal investigation that the inmate in this case had or was about to come out of his restraints. In fact, Appellant testified at the State Employee Grievance Hearing that he told Warden Padula in an interview that he did not feel threatened by the inmate and that is not the reason that he administered the leg sweep. Warden Padula also testified that the inmate was restrained and posed no threat. Moreover, Sergeant Walker testified that during this incident the inmate was restrained with handcuffs and generally compliant and cooperative.

Appellant nevertheless contends that no reasonable body of reviewers could have overlooked the fact that Sergeant Walker’s account of the incident varied so greatly from the inmate's own account. Appellant emphasizes that Sergeant Walker testified that the inmate never jerked away from Appellant whereas the inmate, according to Appellant, admitted to jerking away from Appellant. However, as stated above, the Committee has the authority to determine the credibility of the witnesses and give the weight it wishes to evidence. S.C. Code Ann. § 1-23-380 (A)(5); Thompson ex rel. Harvey v. Cisson Const. Co., 377 S.C. 137, 659 S.E.2d 171 (Ct. App. 2008). Moreover, where there are conflicts in the evidence over a factual issue, the findings of the Committee are conclusive. Thompson, 659 S.E.2d 171. Accordingly, the Committee was free to simply accept Sergeant Walker’s account of the incident.

Additionally, the Committee did not find that Sergeant Walker and the inmate’s version of the incident were the same but rather “essentially the same.”  Sergeant Walker’s testimony and statements[5] reflect that it was the Appellant who was verbally antagonistic to the inmate, rather than the inmate to the Appellant. Once the inmate’s shower was over and the two officers began escorting the inmate back to his cell, Appellant began pushing him with an open hand and then struck him three or four times in the shoulder area though the inmate was not making any statements or displaying any aggression. After walking about twelve feet, Appellant threw him against the wall and then onto the floor. The inmate never testified at the hearing. Rather, a summary of the statement he gave to a SLED officer was introduced. In that document, the inmate stated that after Appellant began escorting him from the shower he grabbed him by his right elbow and then shoved him several times. When he was being shoved the inmate jerked his arm away from Appellant. The inmate however did not state the he jerked away from Appellant. After the inmate jerked his arm away, Appellant threatened to throw him down the stairs and then threw him down to the ground face first.

In summary, both Sergeant Walker and the inmate asserted that:

·                     While escorting the inmate back to his cell, Appellant began pushing the inmate several times;

·                     Appellant threw the inmate against the wall and then on the floor;

·                     Appellant was the aggressor;

·                     The inmate was restrained (handcuffed) at all times during the incident;

Therefore, the Record reflects that Sergeant Walker’s account of what occurred on July 31, 2006 did not significantly vary from the inmate’s account.

Use of Force Continuum

Appellant argued that the Committee’s decision is erroneous because he properly followed the Department’s Use of Force Continuum. He contends that after the inmate refused to obey a lawful order, he followed the force continuum which included a “leg sweep” to gain control of the insubordinate inmate. The Committee found otherwise. As noted above, it found that the inmate was “restrained with handcuffs and was generally compliant and cooperative.” Since he neither failed to obey a lawful order nor posed a cognizable threat to Appellant or anyone else, the Committee determined that Appellant “failed to show that the use of force he exhibited on July 31, 2007, with [Inmate] Livingston was necessary.” The Record supports that determination. First, Sergeant Walker testified that the inmate never jerked away from the Appellant or displayed any aggression. Pursuant to the Department’s Use of Force Continuum, corrections officers are taught to use the least amount of force needed under the circumstances. Under the facts of this case, if the inmate was not refusing to obey a lawful order or posing a danger to others, there was no need to use any of the control techniques to bring him into compliance.

Second, the Committee did not find that Appellant performed a “leg sweep.” In fact, to the contrary, Sergeant Walker testified that the characterization of Appellant’s actions as a leg sweep was incorrect. Therefore, Appellant’s contention regarding his use of a “leg sweep” as an appropriate defensive maneuver is not supported by the Record.

Next, though evidence was presented to the contrary,[6] there was evidence in the Record that even if a leg sweep would have been used, it would have violated the Department’s Policy/Procedure Op.-22.01. Lieutenant Jones, an officer with over twenty-two (22) years of experience in corrections, an instructor at the South Carolina Department of Corrections Training Academy and an expert in the Respondent’s use of force policy, testified that the leg sweep technique used by Appellant is not taught by the SCDC training academy during correctional officer training.[7] Captain Johnson also testified that he does not remember a “leg sweep” being taught at the academy.

Finally, whether the maneuver was or was not taught at the academy, Lee Correctional Institution Warden, Anthony Padula, and Lieutenant Jones both testified that use of such a tactic on a restrained inmate was excessive use of force. Warden Padula testified as follows:

Mr. Clark: And so when an inmate jerks away or snatches away in that setting [the Special Management Unit were the inmate was housed] what, in your opinion, would be the correct response to that inmate?

Warden Padula: Verbal directives, other control techniques, or being escorted properly with two officers, meaning that is not the most abhorrent behavior displayed by an inmate that would require the use of force that Mr. Bradley used.

Furthermore, Lieutenant Jones explained that even if the inmate had “jerked away,” under the circumstances of this case Appellant should first have give a verbal directive and if that directive did not produce compliance, he should then grab the inmate by his handcuffs or use a wrist lock. He specifically testified when asked about an inmate who is improperly moving away from an officer:

Mr. Vincent: He’s moving away from you?

Lieutenant Jones: Moving away from you. If it’s appropriate, you would grab the individual and certainly it would be appropriate if the individual is walking away, or running way, or stepping away from you, and you normally would grab that individual. If he has restraints on, you will attempt to grab him normally by the restraints or with a transport wrist lock.

Mr. Vincent: Okay. Do you do a leg sweep by him and knock his feet out with a restrained inmate?

Lieutenant Jones: No way. Some individuals if they’re pulling away from you and you can’t attempt effectively to grab their arm, then you will grab or hold onto their arm, then you will apply a distraction technique which is normally a knee strike to the common parietal nerve which simply basically causes a Charlie Horse down the side of the leg and changes that person from their thinking about you pulling away from their arm to thinking about “Oh, my leg,” and then at that point you can grab their arm and then apply pressure to their arm and get that individual to stay there causing a minimal risk of injury to him.

Mr. Vincent: Inmates moving away from you, do you take him down without control?

Lieutenant Jones: No, never

Therefore, the Record supports the Committee’s determination that Appellant failed to show that the force he used upon the inmate was necessary.

Retaliation

Appellant argues that the Committee failed to consider or address Appellant’s allegations of retaliation. The July 31, 2006 incident which resulted in his termination happened in the morning and was the first of three incidents for which he was reprimanded for that day. The other two incidents resulted in Appellant's suspension. Appellant contends that those incidents were not resolved until after he contacted Congressman James E. Clyburn and Senator Kent M. Williams. He further argues that the Department’s decision to terminate him was in response to his complaints to Congressman Clyburn and Senator Williams about the lack of control and unfair treatment at Lee Correctional Institution. The Committee acknowledged his argument finding that:

Appellant contends that the decision to terminate his employment is a retaliatory action in response to letters of complaint he wrote to Congressman Clyburn and Senator Kent Williams about lack of order at Lee Correctional Institution.

Nevertheless, the committee found that the facts supported his termination. The Record supports that decision. When asked about this issue the following colloquy occurred:

Mr. Vincent: You heard Mr. Bradley’s testimony in terms of, you know, he claimed that he made complaints and then because of the complaints, he was terminated.  Can you tell the Panel whether that’s true or not?

Warden Padula: I have no idea that Mr. Bradley made any complaints to anyone and it certainly would not have been a reason for his termination.

Mr. Vincent:  And did you know that he made complaints to Representative Clyburn?

Warden Padula:  No, I did not.

* * *

Mr. Vincent:  Why was Mr. Bradley terminated from his position?

Warden Padula:  Because he used – he used unnecessary and excessive force.

Furthermore, the fact that the Committee’s decision did not explain its judgment concerning his claims is no ground for overturning the decision. The Committee was required to make findings of fact to support its decision. As noted above, the Committee fulfilled that function. Obviously, the Committee did not find the allegations of the Appellant to be credible and, therefore, did not address them in its written findings.

For all of the foregoing reasons, the decision of the State Employee Grievance Committee is upheld.

AND IT IS SO ORDERED.

____________________________

Ralph King Anderson, III

Administrative Law Judge

June 16, 2008

Columbia, South Carolina