STATEMENT OF CASE
This matter is before the Administrative Law Court (ALC or Court)
pursuant to the
appeal of Mark Washington, an inmate incarcerated with the Department of Corrections (DOC
or Department). After a decision by a Disciplinary Hearing Officer (DHO), an inmate prepared
a Step 1 Grievance Form on behalf of Inmate Washington challenging the decision of the DHO
in the grievance hearing. Consequently, the Department rejected his appeal and returned the
Step 1 Grievance Form informing Inmate Washington "[i]f you need assistance in writing a
grievance, you need to contact this office." After the Department’s decision not to process that
grievance, the other inmate appealed the Department's refusal to process Inmate Washington's
Step 1 Grievance Form to the ALC. The Department subsequently submitted a Motion to
Dismiss this case.
DISCUSSION
The Department argues this case should be dismissed because the grievance appeal
submitted by Inmate Mark Washington was drafted by another inmate on behalf of Inmate
Washington. The record clearly reflects that though Inmate Washington signed the Step 1
Grievance Form, it was prepared by another inmate. In fact, the appeal to this Court was also
clearly prepared by another inmate. The inmate "representing" the Appellant cites Johnson v.
Avery, 393 U.S. 483, 89 S.Ct. 747 (1969) in support of his proposition that the Appellant should
be allowed “to choose his choice of assistance.” He further points out that Inmate Mark
Washington signed the legal pleadings he prepared.
Nevertheless, in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974), the U.S.
Supreme Court set forth the “minimal due process” requirements that must be followed in
inmate grievance cases.
That “minimal due process” does not require that all inmates be
provided a counsel substitute or representation in an inmate disciplinary proceeding. Rather, the
Court held that: “Where an illiterate inmate is involved, however, or whether the complexity of
the issue makes it unlikely that the inmate will be able to collect and present the evidence
necessary for an adequate comprehension of the case, he should be free to seek the aid of a
fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the
staff or from a sufficiently competent inmate designated by the staff.” Wolff at 2982. The
Appellant did not establish that he was either illiterate or that this case was of sufficient
complexity to necessitate assistance in presenting his case.
Furthermore, the requirements of due process do not mandate that the Department allow
an inmate to choose another inmate to represent him. This is even more evident in inmate
grievance matters in which inmates are not bestowed the full panoply of their constitutional
rights. See Wolff at 556; see also Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000) (In
Footnote 7, the Court, in discussing the “minimal due process” requirements set forth in Wolff,
observed that: “One author has noted that the Supreme Court actually established the maximum
constitutional requirements in such proceedings. . . .”). In order to provide “minimal due
process” in inmate grievance matters, the Department developed policy/procedure GA-01.12,
entitled “Inmate Grievance System,” which requires that the Department’s designated staff assist
those inmates who need assistance in utilizing the grievance system due to a language barrier,
illiteracy, or a disability. The Department also trains Institutional Inmate Grievance
Coordinators to assist inmates in filing grievances. However, the Department prohibits inmates
from representing other inmates. The Department maintains that its decision to allow only staff
assistance was not made in a vacuum. Rather, it has evaluated the pitfalls and consequences of
inmate-to-inmate assistance and determined that the institutional and individual security
becomes severely compromised when one inmate assists another. Consequently, the Department
established rules in policy procedure OP-22.14, entitled “Inmate Disciplinary System,”
prohibiting an inmate from providing or attempting to provide professional services.
Here, Inmate Washington was told that his grievance was being unprocessed and that if
he needed assistance he should contact the Inmate Grievance Office. Therefore, Inmate
Washington was permitted to appeal the DHO’s decision through the inmate grievance process.
Nonetheless, Inmate Washington has apparently chosen to disregard the Department’s grievance
procedure and seek to have an unknown inmate draft his appeal.
Since he failed to properly file
his grievance, the dismissal of this appeal is warranted.
Moreover, even if Inmate Washington was entitled to the full range of due process in
grievance cases, he does not have the right to have other inmates represent him. In Johnson v.
Avery, supra, the United States Supreme Court, in addressing petitions for post-conviction relief,
held that a state may not validly enforce a regulation barring inmates from furnishing assistance
to other inmates unless the state provides some reasonable alternative to assist inmates in
preparing the petitions. Furthermore, in Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491,
1498 (1977), the United States Supreme Court held that:
the fundamental constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.
In Lewis v. Casey, 518 U.S. 343, 356-357, 116 S.Ct. 2174, 2182 (1996), the United States
Supreme Court determined to “leave it to prison officials to determine how best to ensure that
inmates with language problems have a reasonably adequate opportunity to file nonfrivolous
legal claims challenging their convictions or conditions of confinement. But it is that capability,
rather than the capability of turning pages in a law library, that is the touchstone.” Therefore, the
United States Supreme Court’s decisions require that inmates have the right to bring to court a
nonfrivolous grievance. However, violations of that right occur only when an inmate is
“hindered [in] his efforts to pursue a legal claim.” Id. at 351. Even though the inmate cannot
represent Inmate Washington, the only argument provided in this matter was that the Appellant
was not allowed to choose to have another inmate provide his legal assistance, not that the
Appellant was obstructed from appealing the decision of the Disciplinary Hearing Officer. That
allegation and the record before me fail to establish that the Appellant was “hindered” in his
effort to appeal the decision of the Department’s DHO, contrary to Lewis v. Casey.
ORDER
IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and
the Final Decision of the Department is AFFIRMED.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
January 12, 2005
Columbia, South Carolina
