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Administrative Law Court
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SC Administrative Law Court Decisions

Thomas Duberry #232889 vs. SCDOC

South Carolina Department of Corrections

Thomas Duberry #232889

South Carolina Department of Corrections





This matter is before the Administrative Law Court (ALC or Court) pursuant to the appeal of Thomas Duberry (Appellant), an inmate incarcerated with the Department of Corrections (Department). Duberry was convicted of violating SCDC Disciplinary Code § 822, Sexual Misconduct. As a result of his conviction, Duberry lost twenty-three (23) days of “good-time” credit. Duberry filed a grievance with the Department and received the Department’s final decision on September 29, 2004. On October 12, 2004, Appellant Duberry filed this appeal.


On June 1, 2004, the Appellant was in a holding cell at Lieber Correctional Institution. When Ms. Palmer, a DOC employee, began leaving the holding cell area to return to the administrative offices, the Appellant lowered his pants and “then put both his hands down his pants and made up and downward motion on his genitals, gentalia [sic]” in the presence of Ms. Palmer. After the incident, Ms. Palmer completed an Incident Report detailing the incident. The Appellant was subsequently charged with violating SCDC Disciplinary Code § 822, Sexual Misconduct. He received written notice of the charge on June 3, 2004.

On June 15, 2004, a Major Disciplinary Hearing was held before a Department Disciplinary Hearing Officer (DHO) concerning the Sexual Misconduct charge. At the Appellant’s request, he was provided a counsel substitute. Additionally, at his request, Ms. Palmer was present at the hearing. During the hearing, the DHO read a narrative of Ms. Palmer’s Incident Report into the Record and received testimony from the Appellant and Ms. Palmer as evidence. At the conclusion of the hearing, the DHO found the Appellant guilty of Sexual Misconduct and sanctioned him with the loss of twenty-three (23) 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 appealing his conviction of violating SCDC Disciplinary Code § 822. After reviewing his allegation, the Warden denied the Appellant’s grievance. He then appealed the Warden’s decision asking that the Department reverse his loss of “good-time” credits. The Department denied his grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violation that the Appellant committed. This appeal followed. In his Appeal Brief, the Appellant argues that the evidence failed to establish that he committed the above infraction.


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. Footnote

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 his 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. Id. at 751 (citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 2978-82 (1974)).


Due Process

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 stating the evidence he relied upon and the penalty assessed in finding the Appellant guilty of the disciplinary infraction. Finally, as evinced here, the Appellant was permitted to appeal the DHO’s decision through the inmate grievance process.

Substantial Evidence

The Appellant contends that he was merely tucking his shirt into his pants rather than committing a “sexual act.” He further contends that the allegations are not a violation of SCDC Disciplinary Code § 822 because his penis was never exposed. I find that there is substantial evidence to support the Appellant's conviction of violating Code § 822, Sexual Misconduct. A Code 822 violation is: “(1) Engaging in sexual acts or intimate physical contact of a sexual nature alone or with others; or (2) indecent and/or unnecessary exposure of private body parts; or (3) soliciting sexual acts from others.” Footnote In evaluating the evidence presented at the hearing, “[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).

Here, the Record clearly supports the facts recited in the “Background” portion of this Order. More specifically, though the Appellant contends that he was tucking his shirt into his pants, Ms. Palmer testified that he was masturbating. The facts establish that though the Appellant’s penis was not exposed, he was nevertheless engaging in a sexual act in front of Ms. Palmer. Consequently, the Record establishes substantial evidence that the Appellant violated Code § 822.


IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and the Final Decision of the Department is AFFIRMED;



Ralph King Anderson, III

Administrative Law Judge

April 20, 2005

Columbia, South Carolina

Brown Bldg.






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