ORDERS:
ORDER
GRIEVANCE NO. BRCI 0156-03
STATEMENT
OF THE CASE
In
the above-captioned matter, Appellant Charles Cocklin appeals the decision of
Respondent South Carolina Department of Corrections (DOC or Department) to revoke
eighty-five days of his “good-time” credit and temporarily suspend certain of
his prison privileges as punishment for striking a Department employee in
violation of DOC Disciplinary Code § 1.03. Having reviewed the record, the
applicable law, and the briefs filed by the parties in this matter, I conclude
that the decision of the Department must be affirmed.
BACKGROUND
On
the evening of September 1, 2003, Appellant and a Department corrections officer,
Lieutenant Michael Elka, became involved in an altercation at the entrance to
the A-Wing of the Stono Building at the Lieber Correctional Institution. As
the altercation escalated, Lieutenant Elka sprayed Appellant in the face with
MK4 chemical munitions. In the ensuing commotion, Appellant swung both of his
hands at Lieutenant Elka, hitting him in the forehead. The incident was
witnessed by three other corrections officers, Officers Larson Wilson, Thelma
Jones, and Mary Jones. Lieutenant Elka and Officer Wilson both filed incident
reports describing the altercation; each report states that Appellant struck
Lieutenant Elka in the forehead with both hands after receiving the chemical
spray. The other officers did not file incident reports. As a result of this
incident, Appellant was charged with violating DOC Disciplinary Code § 1.03,
Striking an Employee With or Without a Weapon.
Appellant
was notified of the charge against him on September 2, 2003, and a hearing on
the charge was held before a DOC Disciplinary Hearing Officer (DHO) on
September 4, 2003. At the hearing, the incident reports of Lieutenant Elka and
Officer Wilson were read into the record and Lieutenant Elka was present by
telephone to confirm the facts of his incident report. Appellant, who was
represented by counsel substitute, also testified at the hearing. In his
testimony, Appellant contended that he was provoked by Lieutenant Elka into the
altercation, but further admitted that, after he was gassed, he did “swing
out,” although he was unsure whether he made contact with Lieutenant Elka. See
Hr’g Tr. at 6. Appellant also sought to call Officer Thelma Jones as a witness
on his behalf, but the DHO denied the motion made by Appellant’s counsel at the
start of the hearing for a continuance in order to secure testimony from
Officer Jones.
At
the close of the hearing, the DHO found Appellant guilty of the charge against
him and prepared a written report containing his findings. As punishment for
the offense, the DHO revoked 85 days of Appellant’s good-time credit, suspended
his canteen and telephone privileges for 30 days, and suspended his visitation
privileges for 120 days. Appellant appealed his disciplinary conviction to the
Department and then to this Court. On appeal, Appellant primarily contends
that he was denied a fair disciplinary hearing because the DHO refused to allow
him a continuance to secure the testimony of Officer Jones.
DISCUSSION
This
appeal is before this Court pursuant to Al-Shabazz v. State, 338 S.C.
354, 527 S.E.2d 742 (2000), Sullivan v. South Carolina Department of
Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003), and Slezak v. South
Carolina Department of Corrections, 361 S.C. 327, 605 S.E.2d 506 (2004).
Having carefully reviewed the record in this matter under the due process
standards set out in Wolff v. McDonnell, 418 U.S. 539 (1974), Al-Shabazz
v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), and their progeny, I find
that Appellant’s disciplinary conviction must be affirmed. While the DHO’s
unexplained refusal to allow Appellant a continuance to call Officer Jones as a
witness raises certain due process concerns, see, e.g., Al-Shabazz,
338 S.C. at 371, 527 S.E.2d at 751 (noting that an inmate faced with losing
good-time credit “should be allowed to call witnesses . . .provided there is no
undue hazard to institutional safety or correctional goals”), this refusal,
even if error, is patently harmless as the disciplinary hearing was otherwise
procedurally sound and as the evidence in the record, including the reports
filed by two officers and Appellant’s own testimony, fully supports the DHO’s
conclusion that Appellant struck Lieutenant Elka in the forehead during their
altercation. Accordingly, Appellant’s disciplinary conviction must stand.
ORDER
For
the reasons set forth above,
IT
IS HEREBY ORDERED that Appellant’s September 4, 2003 disciplinary
conviction for striking a Department employee is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
Post Office Box
11667
Columbia, South
Carolina 29211-1667
June 13, 2005
Columbia, South Carolina |
