ORDERS:
ORDER
GRIEVANCE NO. ECI 0198-04
STATEMENT
OF THE CASE
In
the above-captioned matter, Appellant Rodney Russell 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
February 9, 2004, Sergeant J. Graham, a DOC corrections officer, administered a
random 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. On his incident report concerning the test
results, Sergeant Graham incorrectly recorded Appellant’s first name as
“Timothy,” rather than “Rodney,” but otherwise had his last name and DOC inmate
number correctly listed on the report. Based upon these positive test results,
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 February 11, 2004, and a hearing on
the charge was held before a DOC Disciplinary Hearing Officer (DHO) on February
18, 2004. However, because Sergeant Graham’s recording error regarding
Appellant’s name was repeated on the form notifying Appellant of the charge,
the DHO dismissed the disciplinary case against Appellant, even though
Appellant’s number was correctly listed on the form and Appellant had signed
the form to indicate he had received proper notice of the charge. On March 5,
2004, Appellant was provided with a corrected notice of the charge against him,
with his name and number properly listed, and a new hearing was held before a
DHO on March 9, 2004. At the hearing, Sergeant Graham’s incident report and
the document authorizing the rehearing of Appellant’s case were read into the
record and Appellant, who had declined counsel substitute, was given the
opportunity to testify. In his testimony, Appellant contended that, given the
incorrect name listed on the incident report, there was insufficient evidence
to support a disciplinary conviction against him, and further that the
procedural irregularities caused in the disciplinary proceedings by that error
require the dismissal of the charge against him. Because Appellant had not
requested that his accuser be present at the hearing, Sergeant Graham 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, 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 argues that his disciplinary conviction should be overturned
because of the irregularities stemming from the incorrect listing of his first
name on the incident report filed by Sergeant Graham.
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, the
Department cured any procedural irregularities in the disciplinary proceedings
against Appellant by re-notifying Appellant of the charge and conducting a new
disciplinary hearing after the naming error was discovered. Further, as
Appellant’s last name and DOC identification number were correctly reported on
Sergeant Graham’s incident report, there is sufficient evidence in the record
identifying Appellant as the inmate that tested positive for the use of
marijuana during the test administered by Sergeant Graham.
ORDER
For
the reasons set forth above,
IT
IS HEREBY ORDERED that Appellant’s March 9, 2004 disciplinary conviction
for the use of marijuana 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 |
