SC Administrative Law Court Decisions

On April 8, 2004, a Major Disciplinary Hearing was held before a DOC Disciplinary Hearing Officer (DHO) concerning the charges of violating SCDC Disciplinary Code § 1.13, Any Act Defined as a Felony by the Laws of the State of South Carolina or the United States and not otherwise Defined in these Rules. At the Appellant’s request, he was provided a counsel substitute during the hearing. Also, the Appellant requested that his accuser be present at the hearing. During the hearing, the DHO read a narrative of Investigator Steen’s Incident Report into the Record and received testimony from the Appellant and Investigator Steen. At the conclusion of the hearing, the DHO found the Appellant guilty of violating SCDC Disciplinary Code § 1.13 and sanctioned him with the loss of ninety (90) days of good time credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record which documented the DHO’s findings.

The Appellant filed a grievance with the Department appealing his conviction of violating Section 1.13. After reviewing his contentions, the Warden denied the Appellant’s grievance. The Appellant then appealed the Warden’s decision. However, prior to the Department issuing its final agency decision, Inmate Pitts filed this appeal.

In his Appeal Brief, the Appellant alleges that:

1. He did not have notice of the true nature of the charges against him;

2. The Department failed to disclose the reports or statements from his accuser or witness;

3. The Department improperly denied the Appellant the right to call a witness; and

4. He was denied proper access to a counsel substitute.^[2]

STANDARD OF REVIEW

The Court’s jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). The Court’s appellate jurisdiction in inmate appeals is limited to state created liberty interests typically involving: (1) cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status; and (2) cases in which an inmate has received punishment in a major disciplinary hearing as a result of a serious rule violation. Id.^[3]

When reviewing the Department’s decisions in inmate grievance matters, the Court sits in an appellate capacity. Id. at 756. Consequently, the review in these inmate grievance cases is limited to the Record presented. An Administrative Law Judge may not substitute his judgment for that of an agency “as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1‑23‑380(A)(6) (Supp. 2003). Furthermore, an Administrative Law Judge may not reverse or modify an agency’s decision unless substantial rights of the Appellant have been prejudiced because the decision is clearly erroneous in view of the substantial evidence on the whole Record, arbitrary or affected by an error of law. See Section 1-23-380(A)(6); See also Marietta Garage, Inc. v. South Carolina Dept. of Public Safety, 337 S.C. 133, 522 S.E.2d 605 (Ct. App. 1999); South Carolina Dept. of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998). “‘Substantial evidence’ is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the Record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.” Lark v. Bi‑Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). Accordingly, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

Additionally, in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S. Ct. 2768 (1985), the U.S. Supreme Court held that “the relevant question is

whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Moreover, in Al-Shabazz, the Court underscored that since prison officials are in the best position to decide inmate disciplinary matters, the Courts and therefore this tribunal adhere to a “hands off” approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz at 757; 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).

In this case, the Appellant alleges that the Department should not have revoked his ninety (90) days of accrued good time. Inmates have a protected liberty interest in their earned statutory good-time credits under the Fourteenth Amendment. Therefore, when, as here, the Department revokes an inmate’s good-time credits as punishment in a “major disciplinary hearing” involving “more serious rule violations,” prison officials must provide that inmate with “minimal due process.” Al-Shabazz at 750. Consequently, specific administrative procedures must be followed before depriving an inmate of statutorily granted earned credit, including adequate advance notice of the charges, adequate opportunity for a hearing in which the inmate can present witnesses and documentary evidence, and an impartial hearing officer who prepares a written statement of all the evidence presented and the reasons for his decision. Al-Shabazz at 751 (citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974)).

DISCUSSION

Notice of Charges and Evidence

Appellant argues that his due process rights were violated because he did not have notice of the true nature of the charges against him. He also argues in a similar vain that the Department failed to disclose the reports or statements from his accuser or witness. In Wolff, supra, the Supreme Court held that “written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense. At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the [Disciplinary] Committee.” Id. at 564. The notice is sufficient if the inmate is able to respond to the charges and present his views. Bryant v. Mann, 553 N.Y.S.2d 569 (1990). Furthermore, in Backstrom v. Iowa Dist. Court for Jones County, 508 N.W.2d 705 (1993), the Court addressed a case factually similar to this matter. The Court held that challenges to the sufficiency of the notice should be reviewed based upon the “totality of the circumstances.” It further found that:

Our analysis, reflecting that of the [U.S.] Supreme Court, focuses on whether the prison officials have successfully apprised the inmate of the relevant charges. We look to the time, place and nature of the alleged activity, although we allow officials to delete some facts in the notice to the prisoner if disclosure threatens the security of the institution.

Id. at 708. Therefore, even though some of the evidentiary information remained confidential, the Backstrom Court found that the prisoner received adequate details regarding the time, place and nature of his activities.

Here, the Record shows that the Appellant received written notice of the charges against him in excess of twenty-four (24) hours prior to a hearing. That Notice included the Incident Report which clearly informed the Appellant of the charge and the facts supporting that charge. At the beginning of the hearing, the DHO read the Incident Report into evidence and asked if the Appellant wished to make a statement. His counsel substitute stated that the Appellant:

[H]ad no knowledge that his visit [sic] was going to bring any type of drugs inside the institution. He didn’t conspire or force or put any pressure on this lady to bring anything. He wasn’t aware she was going to bring anything to him.

The Appellant himself then presented his defense in which he challenged the sufficiency of the evidence presented against and directly addressed the issue of “conspiracy to distribute” drugs. His evidence included a letter from Ms. Brown which purportedly repudiated her prior statement to Investigator Steen. The Appellant did not, however, assert that he was not aware of the nature of the charge. I find that the “totality of the circumstances” clearly reflect that the Appellant received sufficient notice of the charges.

Denial of Witness

The Appellant contends that the DHO improperly denied his request to call Corporal Gordon as a witness. During the hearing, the DHO denied Appellant’s request that Corporal Gordon be called as a witness because Inmate Pitts sent that request to the DHO rather than his counsel substitute. SCDC policy OP-22.14 (3)(a)(2)(b) provides that:

At the time an inmate is served with notice of disciplinary charges, the inmate will be informed of the right to present documentary evidence and to request witnesses.  Should the inmate request witnesses, s/he will be required to submit a list of names of the witnesses s/he desires to be present at the hearing to his/her counsel substitute (or, if no counsel substitute has been requested, to the DHO) anytime prior to the hearing.  This information will then be given to the DHO.  The inmate or counsel substitute may inform the DHO at any time prior to the hearing of any changes in the list of witnesses requested.

The Appellant was appointed a counsel substitute at his request. However, rather than send his request to have Corporal Gordon as a witness to his counsel substitute, he sent the request to the DHO. Therefore, the Appellant failed to follow the Department’s procedure in requesting the attendance of Corporal Gordon. Accordingly, I do not find that the DHO’s denial of his request to have Corporal Gordon as a witness was an abuse of discretion. See Smith v. Massachusetts Dept. of Corrections, 936 F.2d 1390 (1^st Cir.1991).

Denial of Counsel Substitute

The Appellant contends that he was entitled to be provided with a counsel substitute prior to the hearing. However, the Appellant made no objection to his counsel substitute’s representation at his hearing. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. See Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 458 S.E.2d 542 (1995) (In reviewing a final decision of an administrative agency, the Administrative Law Judge “has a limited scope of review, and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency.”). The issue preservation requirement applies to assertions of constitutional violations as well. State v. Passmore, 2005 WL 415993 (S.C. Ct. App. 2005). In I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716 (2000), the South Carolina Supreme Court explained the underlying principle behind this rule:

Imposing this preservation requirement on the appellant is meant to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments. The requirement also serves as a keen incentive for a party to prepare a case thoroughly. It prevents a party from keeping an ace card up his sleeve—intentionally or by chance—in the hope that an appellate court will accept that ace card and, via a reversal, give him another opportunity to prove his case.

(internal citations omitted). Consequently, the Appellant’s allegation was not preserved for appellate review.^[4]

Furthermore, the Appellant has not established a due process violation. In Wolff, supra, the U.S. Supreme Court did not require that an inmate be provided a counsel substitute twenty-four (24) hours prior to the hearing. The Court held: “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 570. Here, the Appellant did not allege or establish that he was either illiterate or that this case was of sufficient complexity to necessitate assistance in presenting his case. Therefore, he failed to establish that he was constitutionally entitled to a counsel substitute prior to his hearing.

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 K. Anderson, III

Administrative Law Judge

March 23, 2005

Columbia, South Carolina