ORDERS:
ORDER
STATEMENT OF CASE
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.
BACKGROUND
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.
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 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)).
DISCUSSION
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.”
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.
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 20, 2005
Columbia, South Carolina |
