ORDERS:
ORDER
STATEMENT
OF CASE
This matter is before the Administrative Law Court (ALC or
Court) pursuant to the appeal of Rahmeil Sutton, an inmate incarcerated with
the Department of Corrections (Department). Sutton was convicted of violating
SCDC Disciplinary Code § 822, Sexual Misconduct. As a result of his
conviction, Sutton lost thirty (30) days of “good-time” credit. Sutton filed a
grievance with the Department and received the Department’s final decision on
December 29, 2004. On January 18, 2005, Sutton filed this appeal.
BACKGROUND
On July
14, 2004, the Appellant was in a sally port in the Stono Building at Lieber
Correctional Institution. Officer Vandross, a DOC employee, was sitting at the
desk on B-side. She noticed the Appellant standing in the sally port looking
at her. When she stood up to see why he was standing there, she observed that
the Appellant had his hand in his pants “moving in an up and down motion.” After
the incident, Officer Vandross 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 July 20, 2004.
On July
29, 2004, a Major Disciplinary Hearing was held before a Department
Disciplinary Hearing Officer (DHO) concerning the Sexual Misconduct charge. At
the Appellant’s request, Officer Vandross was present at the hearing. Additionally,
he was provided a counsel substitute. During the hearing, the DHO read a
narrative of Officer Vandross’s Incident Report into the Record and received
testimony from the Appellant and Officer Vandross as evidence. At the
conclusion of the hearing, the DHO found the Appellant guilty of Sexual
Misconduct and sanctioned him with the loss of thirty (30) 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 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 the
Appellant committed. This appeal followed. In his Appeal Brief, the
Appellant argues that:
1. The
sentence imposed was excessive and not proportionate to the violation;
2. The
DHO was biased against him;
3. His due process rights were
violated because the DHO did not consult a mental health care professional;
and
4. The Department’s
provision of a counsel substitute violated his due process right because he was
not allowed to question the Department’s witness himself.
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.
Impartial
Hearing Officer
The
Appellant contends that his hearing was not held before an impartial hearing
officer as reflected by the DHO’s statements on the Record. More specifically,
the Appellant was told by the DHO that he didn’t need to present his medical
records concerning his need to scratch himself because that evidence was “not
going to work.” An impartial hearing officer is required in inmate
disciplinary proceedings involving state created liberty interest. See Wolff
v. McDonnell, 418 U.S. 539, 570-71, 94 S.Ct. 2963, 2981-82 (1974). See
also, Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584 (1997)
(“The due process requirements for a prison disciplinary hearing are in many
respects less demanding than those for criminal prosecution, but they are not
so lax as to let stand the decision of a biased hearing officer who dishonestly
suppresses evidence of innocence.”). Furthermore, though the Record may contain
ample evidence to support the Department’s judgment, when considering whether
the DHO was biased the sufficiency of the evidence is irrelevant. Id.
However,
the mere possibility of institutional bias is not enough to violate due
process. Allen v. Cuomo, 100 F.3d 253 (2nd Cir. 1996).
Rather, “[a]dministrators serving as adjudicators are presumed to be unbiased.”
Id. at 259. Additionally, “the degree of impartiality required of
prison hearing officials does not rise to the level of that required of judges
generally. Because of the special characteristics of the prison environment,
it is permissible for the impartiality of such officials to be encumbered by
various conflicts of interest that, in other contexts, would be adjudged of
sufficient magnitude to violate due process.” Francis v. Coughlin, 891
F.2d 43, 46 (2nd Cir. 1989). An impartial DHO has been defined as
“one who, inter alia, does not prejudge the evidence and who
cannot say, with the utter certainty advanced by these defendants, how he would
assess evidence he has not yet seen.” Patterson v. Coughlin, 905 F.2d
564, 570 (2nd Cir. 1990). In Merritt v. De Los Santos, 721
F.2d 598 (7th Cir. 1983), the Seventh Circuit discussed what
constitutes impartiality in inmate disciplinary proceedings. The Court held
that “the requirement of impartiality mandates the disqualification of an
official who is directly involved in the incident or is otherwise substantially
involved in the incident but does not require the disqualification of someone
tangentially involved.” Id. at 601. Likewise, the Court in Bennett
v. King, 19 F.3d 1428 (4th Cir.1994) addressed the issue of a
prisoner's right to have disciplinary charges against him considered by an
impartial tribunal. The Court held that the fact that King was the Defendant
in a lawsuit filed by the hearing officer was insufficient to raise a genuine
issue regarding his ability to act as a “neutral decisionmaker.” However, the
Court held that “this fact, together with the fact that King was the subject of
the profane comments [the hearing officer] allegedly made, require further
consideration of this issue.” Id.
Therefore,
proof of a due process violation based upon lack of impartiality requires
specific acts reflecting a lack of neutrality. That scenario is not present
here. The DHO’s demeanor toward the Appellant was brusque. However, the
Appellant was ultimately allowed to fully present his defense as to his actions.
Moreover, there is no indication that DHO witnessed or investigated the
incident that was the subject of this disciplinary proceeding against the
Appellant. Furthermore, there is no evidence that the DHO prejudged the
evidence in this matter. Rather, the Record shows that evidence was presented
at the hearing and that the hearing officer relied upon that evidence in
reaching a decision. Accordingly, I find that he failed to establish that his
hearing officer was impartial.
Substantial
Evidence
The
Appellant contends that he was merely scratching himself rather than committing
a “sexual act.” I find that there is substantial evidence to support the
Appellant's conviction of violating SCDC Disciplinary Code § 822, Sexual
Misconduct. A Code Section 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. Those facts sufficiently establish that
though the Appellant’s penis was not exposed, he was nevertheless engaging in a
sexual act in front of Officer Vandross. Consequently, the Record establishes
substantial evidence that the Appellant violated Code Section 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 27, 2005
Columbia, South Carolina |
