ORDERS:
ORDER
STATEMENT OF CASE
This matter is before the Administrative Law Court (ALC or Court) pursuant to the appeal of James Enriquez, an inmate incarcerated with the Department of Corrections (Department). Enriquez was convicted of violating SCDC Disciplinary Code § 903, The Use or Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs, Alcohol, or Inhalants, after pleading not guilty to the charge. As a result of his conviction, Enriquez lost three hundred sixty (360) days of “good-time” credit. Enriquez filed a grievance with the Department and received the Department’s final decision on or about February 3, 2005. On February 24, 2005, Appellant Enriquez filed this appeal with the Court.
BACKGROUND
On October 11, 2004, Appellant was administered a drug test by Sergeant Justis while housed at Lieber Correctional Institution. Appellant tested positive for “THC” (also known as marijuana) and cocaine. Sergeant Justis then performed a confirmation test using an American Bio-Medico test stick which further corroborated the existence of marijuana and cocaine in Appellant. Thereafter, Sergeant Justis completed an Incident Report charging Appellant with violating SCDC Disciplinary Code § 903. On October 13, 2004, Appellant was given written notice of the charge of violating Section 903 based upon the above incident.
A hearing was held on October 19, 2004, before a Disciplinary Hearing Officer (DHO). During the hearing, the DHO read a narrative of Sergeant Justis’s Incident Report into the Record and received testimony from Appellant as evidence. At the conclusion of the hearing, the DHO found Appellant guilty of violating SCDC Disciplinary Code § 903 and sanctioned Appellant with the loss of three hundred sixty (360) days of “good time” credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record, which documented the DHO’s findings based on the Record.
Appellant then filed a grievance appealing his conviction of violating Section 903. The Warden thereafter denied his grievance. After Appellant appealed the Warden’s decision, the Department denied also his grievance. This appeal followed. In his Appeal Brief, Appellant alleges that:
1. There was insufficient evidence presented at the hearing to find him guilty of this charge;
2. The disciplinary hearing was “not fair and was also biased against him”;
3. The punishment imposed was excessively harsh; and
4. He was convicted twice for the same charge.
STANDARD OF REVIEW
The Court’s jurisdiction to hear this matter was originally derived from the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al-Shabazz, the Supreme Court held that the ALC’s jurisdiction in inmate appeals is limited to state created liberty interests typically involving: (1) cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status; and (2) cases in which an inmate has received punishment in a major disciplinary hearing as a result of a serious rule violation. Id.
When reviewing the Department’s decisions in inmate grievance matters, the ALC sits in an appellate capacity. Id. at 756. Consequently, the review in these inmate grievance cases is limited to the Record presented. An Administrative Law Judge simply may not substitute his judgment for that of an agency “as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1‑23‑380(A)(6) (Supp. 2003). Furthermore, an Administrative Law Judge may not reverse or modify an agency’s decision unless substantial rights of the Appellant have been prejudiced because the decision is clearly erroneous in view of the substantial evidence on the whole Record, arbitrary or affected by an error of law. See Section 1-23-380(A)(6); See also Marietta Garage, Inc. v. South Carolina Dept. of Public Safety, 337 S.C. 133, 522 S.E.2d 605 (Ct. App. 1999); South Carolina Dept. of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998). “‘Substantial evidence’ is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the Record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.” Lark v. Bi‑Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). Accordingly, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
Additionally, in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455-456, 105 S.Ct. 2768 (1985), the U.S. Supreme Court held that “the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Moreover, in Al-Shabazz, the Court underscored that since prison officials are in the best position to decide inmate disciplinary matters, the Courts and therefore this tribunal adhere to a “hands off” approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz at 757; See also Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779 (1980) (stating the traditional “hands off” approach of South Carolina courts regarding internal prison discipline and policy).
In this case, Appellant alleges that the Department should not have revoked three hundred sixty (360) days of accrued good time. Inmates have a protected liberty interest in their earned statutory good-time credits under the Fourteenth Amendment. Therefore, when, as here, the Department revokes an inmate’s good-time credits as punishment in a “major disciplinary hearing” involving “more serious rule violations,” prison officials must provide that inmate with “minimal due process.” Al-Shabazz at 750. Consequently, specific administrative procedures must be followed before depriving an inmate of statutorily granted earned credit, including adequate advance notice of the charges, adequate opportunity for a hearing in which the inmate can present witnesses and documentary evidence, and an impartial hearing officer who prepares a written statement of all the evidence presented and the reasons for his decision. Id. at 751 (citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 2978-82 (1974)).
DISCUSSION
Due Process
Appellant contends that the hearing was not fair and was biased against him. In particular, he contends that the Department should have waited thirty (30) days before his previous positive drug test before testing him again. He argues that testing him in a period of less than thirty (30) days reflects bias and vindictiveness.
An impartial hearing officer is required in inmate disciplinary proceedings involving state created liberty interests. See Wolff, supra; See also, Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584 (1997) (“The due process requirements for a prison disciplinary hearing are in many respects less demanding than those for criminal prosecution, but they are not so lax as to let stand the decision of a biased hearing officer who dishonestly suppresses evidence of innocence.”). Furthermore, though the Record may contain ample evidence to support the Department’s judgment, when considering whether the DHO was biased, the sufficiency of the evidence is irrelevant. Id.
Nevertheless, to prove the denial of due process, an inmate must show that he has been substantially prejudiced by the administrative process. See Palmetto Alliance, Inc. v. S. C. Public Service Comm’n., 282 S.C. 430, 319 S.E.2d 695 (1984). Moreover, “[a]dministrators serving as adjudicators are presumed to be unbiased.” Allen v. Cuomo, 100 F.3d 253, 259 (2nd Cir. 1996). Additionally, “the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally. Because of the special characteristics of the prison environment, it is permissible for the impartiality of such officials to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due process.” Francis v. Coughlin, 891 F.2d 43, 46 (2nd Cir. 1989). Accordingly, an impartial DHO has been defined as “one who, inter alia, does not prejudge the evidence and who cannot say. . . how he would assess evidence he has not yet seen.” Patterson v. Coughlin, 905 F.2d 564, 570 (2nd Cir. 1990).
In Merritt v. De Los Santos, 721 F.2d 598 (7th Cir. 1983), the Seventh Circuit also discussed what constitutes impartiality in inmate disciplinary proceedings. The Court held that “the requirement of impartiality mandates the disqualification of an official who is directly involved in the incident or is otherwise substantially involved in the incident but does not require the disqualification of someone tangentially involved.” Id. at 601. Likewise, the Court in Bennett v. King, 19 F.3d 1428 (4th Cir.1994) (unpublished opinion), addressed the issue of a prisoner's right to have disciplinary charges against him considered by an impartial tribunal. The Court held that the fact that King was the Defendant in a lawsuit filed by the hearing officer was insufficient to raise a genuine issue regarding his ability to act as a “neutral decision maker.” However, the Court held that “this fact, together with the fact that King was the subject of the profane comments [the hearing officer] allegedly made, require further consideration of this issue.” Id. Therefore, proof of a due process violation based upon lack of impartiality requires specific acts reflecting a lack of neutrality. That scenario is not present here.
Double Jeopardy
Appellant contends he was convicted twice for the same charge because he was tested in a period of less than thirty (30) days. However, he has not established that he was subjected to double jeopardy. In fact, Appellant has not even established that he was subjected to prison discipline and a criminal prosecution based on the same facts.
Unless the facts demonstrate that the prison disciplinary sanctions imposed are “so grossly unrelated to prison authorities' remedial goal so as to constitute a ‘punishment’ within the meaning of the Double Jeopardy Clause,” an inmate’s discipline does not rise to double jeopardy. United States v. Newby, 11 F.3d 1143, 1145 (3rd Cir. 1993). Additionally, the U.S. Supreme Court held in Wolff that: “We should not be too ready to exercise oversight and put aside the judgment of prison administrators.” Wolff, supra, at 566; See also Newby, supra, (“In considering what is necessary and proper to preserve institutional order and discipline, and to encourage good conduct, [the courts] defer to the judgment of the prison authorities.”) Thus, the decision to impose a disciplinary measure is discretionary with the chief executive officer of the facility and should not be overturned “absent an unreasonable or arbitrary exercise of such discretion.” Glouser v. Parratt, 605 F.2d 419, 421-422 (8th Cir. 1979). Here, Appellant was not sentenced to serve time for his possession of marijuana and cocaine but rather simply lost those credits which reduced the sentence he was serving. “The right to good-time credit which rests on legislative grace is conditional and does not vest until the prisoner is dismissed from the penal complex. Thus, when [the inmate] lost his good-time credits for being in possession of marijuana at the penitentiary, it is as though the credits never existed or accrued to his benefit.” Id.
Excessive Punishment
Appellant argues that the punishment imposed was excessively harsh. The Department’s policy, which was included with the Record, sets forth that the use or possession of drugs is a Level 1 major disciplinary offense. See SCDC Policy/Procedure GA-03.03 § 9.1. The penalty for the commission of a Section 903 violation, fourth offense, is loss of ninety (90) to three hundred sixty (360) days good time. See SCDC Policy/Procedure OP-22.14 § 26 (903). Therefore, Appellant did not establish that the revocation of three hundred sixty (360) days was in violation of the Department’s Disciplinary Code. Furthermore, the DHO stated that he imposed the loss of three hundred sixty (360) days good time because this conviction was Appellant’s fourth drug offense and sixth disciplinary offense in the last twelve (12) months. I find that Appellant thus failed to establish that the DHO’s determination was an unreasonable or arbitrary exercise of his discretion. See Glouser, supra.
Substantial Evidence
Appellant argued that the evidence failed to establish he tested positive for any unauthorized drug. He also argues that the period of less than thirty (30) days between his previous test and the test in this case was not an adequate time frame to negate if the positive results were from recent drug use or drug use that precipitated the previous conviction. I find that the evidence supports Appellant’s conviction. In Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, supra, the U.S. Supreme Court held that the revocation of good time must be supported by “some evidence in the record.” However, “[a]scertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-456. Moreover, “[t]he fact finder is imbued with broad discretion in determining credibility or believability of witnesses.” Small v. Pioneer Machinery, Inc., 329 S.C. 448, 465, 494 S.E.2d 835, 843 (Ct. App. 1997). Therefore, it was the DHO’s prerogative to decide what part of each witness’ testimony he believed or disbelieved.
A Disciplinary Code Section 903 violation is, in part: “Any inmate testing positive for any unauthorized drug . . . as specified in SCDC Policy/Procedure GA-03.03, ‘Inmate Drug Testing/Screening Program.’ ” The Record establishes that Appellant tested positive for marijuana and cocaine on the initial screening test and the American Bio-Medico confirmation test. Moreover, Appellant offered no evidence to suggest that the tests were defective or inaccurate. When viewed in light of the DHO’s discretion, the Record sufficiently establishes that Appellant tested positive for an unauthorized drug. Accordingly, I find that there is substantial evidence to support Appellant's conviction of violating SCDC Disciplinary Code § 903.
Furthermore, Appellant did not establish that the test upon which this conviction was based detected the same drugs for which he was previously convicted. Though the Department blatantly failed to respond to this allegation, the Record nevertheless reflects the DHO’s recognition that the test in this case reflected the presence of cocaine in addition to the marijuana detected in the past. Accordingly, the DHO restricted the review of the case and the subsequent conviction solely to the use of cocaine. Therefore, Appellant did not establish that the Department convicted him twice for the same offense.
ORDER
IT IS THEREFORE ORDERED that the appeal of Appellant is DISMISSED and the Final Decision of the Department is AFFIRMED;
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
July 7, 2005
Columbia, South Carolina |
