ORDERS:
ORDER
GRIEVANCE NO. LIEBER 0490-04
STATEMENT
OF THE CASE
In
the above-captioned matter, Appellant Robert Mitchell appeals the decision of
Respondent South Carolina Department of Corrections (DOC or Department) to revoke
140 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 § 903. 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
July 30, 2004, Sergeant Jason Smith, a DOC corrections officer, administered an
OnTrak urinary drug test on Appellant. The test returned a positive result for
the use of marijuana. A subsequent confirmation test also indicated the
presence of marijuana in Appellant’s system. Based upon these positive test
results, Appellant was charged with violating DOC Disciplinary Code § 903, The
Use or Possession of Narcotics, Marijuana or Unauthorized Drugs, Including
Prescription Drugs.
Appellant
was notified of the charge against him on August 6, 2004, and a hearing on the
charge was held before a DOC Disciplinary Hearing Officer (DHO) on August 17,
2004. At the hearing, the incident report filed by Sergeant Smith was read
into the record and Appellant was given the opportunity to testify. In his
testimony, Appellant raised questions as to the accuracy and validity of the
confirmation test performed by Sergeant Smith. Because Appellant had not
requested that his accuser be present, Sergeant Smith did not attend the
hearing. 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, which was Appellant’s fifth such offense, the DHO
revoked 140 days of Appellant’s good-time credit, suspended his telephone,
canteen, and property privileges for 180 days, suspended his visitation
privileges for 180 days, and sentenced him to 360 days of disciplinary
detention. Appellant appealed his disciplinary conviction to the Department
and then to this Court. On appeal, Appellant alleges that Sergeant Smith
disregarded an initial confirmation drug test on his urine sample, which
returned a negative result, and instead reported the results of a second,
inaccurate confirmation test in his report of the drug test and his incident
report.
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. In particular, there
is no evidence in the record to substantiate Appellant’s claim that Sergeant
Smith conducted a second, unreported confirmation test that returned a negative
result for marijuana.
ORDER
For
the reasons set forth above,
IT
IS HEREBY ORDERED that Appellant’s August 17, 2004 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 |
