ORDERS:
ORDER
GRIEVANCE NO. KER 399-03
STATEMENT OF THE CASE
In the above-captioned
matter, Appellant Terrence Howze appeals the decision of Respondent South
Carolina Department of Corrections (DOC or Department) to revoke ninety days of
his “good-time” credit and temporarily suspend certain of his prison privileges
as punishment for the use of marijuana in violation of DOC Disciplinary Code §
1.10. 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 October 1, 2003,
Corporal B. Gordon administered an OnTrak urinary drug test on Appellant during
a random drug test. The test returned a positive result for marijuana. A
subsequent confirmation test also indicated the presence of marijuana in
Appellant’s system. Based upon these positive test results for the use of
marijuana, Appellant was charged with violating DOC Disciplinary Code § 1.10,
The Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs, Including
Prescription Drugs.
Appellant was notified of
the charge against him on October 8, 2003, and a hearing on the charge was held
before a DOC Disciplinary Hearing Officer (DHO) on October 13, 2003. At the
hearing, the incident report filed by Corporal Gordon was read into the record
and Corporal Gordon was present to confirm the details of Appellant’s drug
test. Appellant, who was represented by counsel substitute, also testified at
the hearing. In his testimony, Appellant contended that he does not use
illegal drugs and challenged the reliability of the OnTrak drug testing system.
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 90 days of Appellant’s good-time
credit, suspended his canteen and telephone privileges for 30 days, suspended
his visitation privileges for 120 days, and imposed 5 hours of extra duty. Appellant
appealed his disciplinary conviction to the Department and then to this Court.
On appeal, Appellant contends that Corporal Gordon mishandled the urine samples
during the drug test because he did not wear gloves during the test or wash his
hands before conducting the test. However, Appellant did not raise this
objection to his drug test during the evidentiary hearing conducted by the DHO.
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. The disciplinary hearing conducted
by the DHO was procedurally sound and the DHO’s conclusions are sufficiently supported
by the evidence in the record. Moreover, there is no evidence in the record to
suggest that Corporal Gordon failed to comply with Department policies in
conducting the drug test on Appellant or that Appellant’s sample was
contaminated in any way. Accordingly, Appellant’s disciplinary conviction must
stand.
ORDER
For the reasons set forth
above,
IT IS HEREBY ORDERED
that Appellant’s October 13, 2003 disciplinary conviction for the use of
marijuana is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
June
13, 2005
Columbia,
South Carolina |
