ORDERS:
ORDER
GRIEVANCE NO. LIEBER 0595-03
STATEMENT OF THE CASE
In the above-captioned
matter, Appellant Brian Stephens 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 using 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 August 19, 2003,
Lieutenant Jack Langenstein administered an OnTrak urinary drug test on
Appellant during a random drug screening. The test returned a positive result
for marijuana. A subsequent confirmation test, using the American Bio-Medica
Rapid One stick, 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 August 20, 2003, and a hearing on the charge was held
before a DOC Disciplinary Hearing Officer (DHO) on August 26, 2003. At the
hearing, the incident report filed by Lieutenant Langenstein regarding
Appellant’s drug test and the report of the results of the test were admitted
into the record as evidence. Appellant did not request that Lieutenant
Langenstein be present at the hearing and did not wish to have the assistance
of counsel substitute at the hearing. While Appellant did plead not guilty to
the charge against him, his testimony at the hearing consisted essentially of a
request for leniency from the DHO.
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
assigned him 5 hours of extra duty. Appellant appealed his disciplinary
conviction to the Department and then to this Court. On appeal, Appellant contends
that his disciplinary conviction was improper because Department policy does
not authorize random drug testing upon inmates. 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, Department policy allows
the random drug testing of inmates, and there is no evidence in the record to
suggest that Appellant was improperly selected for such random testing.
Accordingly, Appellant’s disciplinary conviction must stand.
ORDER
For the reasons set forth
above,
IT IS HEREBY ORDERED
that Appellant’s August 26, 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 |
