ORDERS:
ORDER
STATEMENT OF CASE
This matter is before the Administrative Law Judge Court (ALC or Court) pursuant to the
appeal of Kelly D. Smith, an inmate incarcerated with the Department of Corrections (DOC or
Department). Smith was convicted of violating SCDC Disciplinary Code § 1.10, Use or
Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs, after
pleading not guilty to the charge. As a result of his conviction, Smith lost one hundred and
eighty (180) days of “good-time” credit. Smith filed a grievance with the Department and
received the Department’s final decision on November 15, 2004. On December 6, 2004, the
Appellant filed this appeal with the Court.
BACKGROUND
On March 29, 2004, Sergeant Hartzog conducted a strip search of the Appellant in his
room on the Birch II Unit at MacDougall Correctional Institution. During that search, Sergeant
Hartzog found thirty (30) sacks of marijuana in the groin area of the Appellant’s thermal
underwear. He also found six (6) more sacks of marijuana in the Appellant’s socks. Thereafter,
Sergeant Hartzog completed an Incident Report charging the Appellant with violating SCDC
Disciplinary Code § 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Drugs,
Including Prescription Drugs. On March 30, 2004, the Appellant was given written notice of the
charge of violating SCDC Disciplinary Code § 1.10 based upon the above facts.
A hearing was held on April 1, 2004, before a Disciplinary Hearing Officer (DHO). At
the Appellant’s request, he was provided a counsel substitute. Additionally, though the
Appellant did not request that his “accuser’ be present, in light of his defenses, the DHO called
Sergeant Hartzog as a witness. During the hearing, the DHO read a narrative of Sergeant
Hartzog's Incident Report into the Record and received testimony from the Appellant and
Sergeant Hartzog as evidence. At the conclusion of the hearing, the DHO found the Appellant
guilty of violating SCDC Disciplinary Code § 1.10 and sanctioned him with the loss of one
hundred and eighty (180) days of “good time” credit. After the hearing, the DHO completed a
Major Disciplinary Report and Hearing Record, which documented the DHO’s findings based on
the Record.
The Appellant filed a grievance appealing his conviction of violating SCDC Disciplinary
Code § 1.10. The Warden denied his grievance. After he appealed the Warden’s decision, the
Department further denied his grievance. This appeal followed. In his Appeal Brief, the
Appellant alleges that:
1.The evidence failed to establish that the Appellant violated SCDC Disciplinary
Code § 1.10;
2.An Incident Report that was filed approximately two months after the hearing had
been made apart of the Department’s Record;
and
3.The Appellant's loss of “good time” exceeds the potential penalty he could have
received for possession of marijuana under S.C. Code Ann. § 44-53-370 (2002).
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.
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, 456, 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 one
hundred and eighty (180) days of his accrued good time credit. 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 or her
decision. Id. at 751 (citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 2978-82
(1974)).
DISCUSSION
I find that the Appellant was afforded all process due him pursuant to Al-Shabazz. The
Record indicates that the Appellant received written notice of the charges against him in excess
of twenty-four (24) hours prior to a hearing that was held before an impartial Disciplinary
Hearing Officer. At the hearing, the Appellant was given the opportunity to offer evidence, call
witnesses, and confront his accuser. In addition, although not constitutionally required, the
Appellant was afforded a counsel substitute who assisted him in his defense. After the DHO
determined that the Appellant was guilty of the charged offense, he prepared a written report
detailing the evidence he relied upon and the penalty assessed in finding the Appellant guilty of
the disciplinary infraction. Finally, the Appellant was permitted to appeal the DHO’s decision
through the inmate grievance process.
The Appellant argues his due process rights were violated because his loss of “good
time” exceeds the potential penalty he could have received for possession of marijuana under
S.C. Code Ann. § 44-53-370 (2002). However, the Appellant was charged with a violation of,
and punished under, the Department’s Disciplinary Code, not Section 44-53-370. In Glouser v.
Parratt, 605 F.2d 419 (8th Cir. 1979), an inmate made a similar claim asserting that his loss of
“good time” credits for possession of marijuana violated his constitutional rights because it was
a more severe punishment than what would have been sustained by a Nebraska citizen
prosecuted for a similar offense under Nebraska State law. The Court held that prison
disciplinary offenses and the punishments imposed for violations of them need not correspond to
provisions in non-prison-related criminal statutes. See also Picard v. State, 339 N.W.2d 368
(1983) (inmate claimed due process violation when his loss of “good time” credits for escape
exceeded the potential criminal sentence that could have been imposed.). Rather, in these
instances, the decision to impose a disciplinary measure is discretionary with the chief executive
officer of the facility and should not be overturned “absent an unreasonable or arbitrary exercise
of such discretion.” Glouser at 421. Moreover, the Appellant was not sentenced to serve time for
his possession of marijuana but rather simply lost those credits which reduced the sentence he
was serving. “The right to good-time credit which rests on legislative grace is conditional and
does not vest until the prisoner is dismissed from the penal complex. Thus, when [the inmate]
lost his good-time credits for being in possession of marijuana at the penitentiary, it is as though
the credits never existed or accrued to his benefit.” Id. Therefore, it is constitutionally irrelevant
that Appellant’s loss of one hundred eighty (180) days “good time” credit for possessing
marijuana exceeds the maximum sentence for a first conviction for the possession of less than
twenty-eight (28) grams of marijuana under S.C. Code Ann. § 44-53-370(d)(3) (2002).
The Appellant further contends that the evidence presented at the hearing did not
establish that he was guilty of violating SCDC Disciplinary Code § 1.10, The Use or Possession
of Narcotics, Marijuana, or Unauthorized Drugs, Including Prescription Drugs. In particular, he
contends that the evidence failed to establish that he was in actual or constructive possession of
the marijuana. A Section 1.10 violation is, in part: “The actual or constructive possession of any
item which was not issued to the inmate officially or which cannot be purchased by him or her in
the prison canteen, or has not been authorized by the Warden. Drugs of any description (except
those prescribed by an authorized physician and within authorized amounts), e.g. . . marijuana. . .
.” Furthermore, “[t]he fact finder is imbued with broad discretion in determining credibility or
believability of witnesses.” Small v. Pioneer Machinery, Inc., 329 S.C. 448, 465, 494 S.E.2d
835, 843 (Ct. App. 1997). When viewed in light of the DHO’s discretion, the Record
sufficiently establishes that the Appellant possessed marijuana. Accordingly, I find that there is
substantial evidence to support the Appellant's conviction of violating SCDC Disciplinary Code
§ 1.10.
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
April 1, 2005
Columbia, South Carolina |