ORDERS:
ORDER
STATEMENT OF CASE
This matter is before the Administrative Law Court (ALC or Court) pursuant to the appeal of Russell Hall, an inmate incarcerated with the Department of Corrections (Department or DOC). Hall was convicted of violating SCDC Disciplinary Code § 801, Assault and/or Battery of an SCDC Employee or other Government Employee, Volunteer, or Contract Employee with Means and/or Intent to Kill or Injure. As a result of his conviction, Appellant Hall lost three hundred sixty-five (365) days of “good-time” credit. Inmate Hall filed a grievance with the Department and received the Department’s final decision on or about January 5, 2005. On January 7, 2005, Hall filed this appeal with the Court.
BACKGROUND
On June 21, 2004, Captain McLemore, a DOC employee, was taking Appellant to a holding cell as a result of misconduct. On the way to the cell, Appellant stopped and stated to Captain McLemore that “now we're going to get physical.” After Appellant refused a directive to go to operations and stepped back in a “fighting” stance, Captain McLemore sprayed him with chemical munitions. Appellant then swung his fist at Captain McLemore who responded by placing Appellant’s hands behind his back and pinning him against the wall. However, Appellant then pulled his feet up to the wall and pushed Captain McLemore with great force into a brick column causing a severe head injury.
Following the incident, Sandy Shumate and Sergeant Montgomery completed Incident Reports detailing the events that occurred. Appellant was charged with violating SCDC Disciplinary Code § 801, Assault and/or Battery of an SCDC Employee or other Government Employee, Volunteer, or Contract Employee with Means and/or Intent to Kill or Injure. He received written notice of the charges on July 9, 2004.
On July 14, 2004, a Major Disciplinary Hearing was held before a DOC Disciplinary Hearing Officer (DHO) concerning the above charges. At Appellant’s request, he was provided a counsel substitute during the hearing. Also, Appellant requested that his accuser be present at the hearing. During the hearing, the DHO read a narrative of Sergeant Montgomery's Incident Report into the Record and received testimony from Appellant, Captain McLemore, Sergeant Goddard and Sergeant Montgomery. At the conclusion of the hearing, the DHO found Appellant guilty of violating SCDC Disciplinary Code § 801, Assault and/or Battery of an SCDC Employee or other Government Employee, Volunteer, or Contract Employee with Means and/or Intent to Kill or Injure, and sanctioned him with the loss of three hundred sixty-five (365) days of good time credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record which documented the DHO’s findings.
Appellant filed a grievance with the Department appealing his conviction of violating Disciplinary Code § 801. After reviewing his contentions, the Warden denied Appellant’s grievance. Appellant then appealed the Warden’s decision and the Department subsequently denied that grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violation that Appellant committed. This appeal followed.
In his Appeal Brief, Appellant alleges that:
1. He was entitled to legal counsel rather than merely a counsel substitute;
2. He was entitled to discover the contents of the file relating to the criminal investigation of this case; and
3. There was not enough evidence to convict him of Assault and/or Battery of an SCDC Employee or other Government Employee, Volunteer, or Contract Employee with Means and/or Intent to Kill or Injure.
STANDARD OF REVIEW
The Court’s jurisdiction to hear this matter is 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). The Court’s appellate 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 Court 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 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) (2005). 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, 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.” In making that determination, the Court is not required to examine the entire record, independently assess the credibility of witnesses, or weigh the evidence. Id. 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 his three hundred sixty-five (365) 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, supra).
DISCUSSION
Appellant’s due process rights in this proceeding are summarized in Al-Shabazz, supra. I find that Appellant was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Appellant received written notice of the charges against him in excess of twenty-four (24) hours prior to a hearing that was held before an impartial Disciplinary Hearing Officer. At the hearing, Appellant was given the opportunity to offer evidence, call witnesses, and confront his accuser. In addition, although not constitutionally required, Appellant was afforded a counsel substitute who assisted him in his defense. After the DHO determined that Appellant was guilty of the charged offense, he prepared a written report detailing the evidence he relied upon and the penalty assessed in finding Appellant guilty of the disciplinary infraction. Appellant was also allowed to appeal the DHO’s decision through the inmate grievance process.
Appellant contends he was denied due process because he was not allowed to discover the contents of the file relating to the criminal investigation of this case. This issue was also addressed in Wolff, supra. As noted above, the U.S. Supreme Court established in Wolff the procedures that must be followed in an inmate disciplinary proceeding that revokes a state created liberty interest. Those procedures do not provide for the right to discovery. In fact, the Court specifically held in Wolff that:
Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence.
Wolff at 566. Therefore, Appellant failed to establish the Department failed to give him due process.
I also find that there is substantial evidence to support Appellant's conviction of violating SCDC Disciplinary Code § 801, Assault and/or Battery of an SCDC Employee or other Government Employee, Volunteer, or Contract Employee with Means and/or Intent to Kill or Injure. A Code § 801 violation is:
The willful hitting, striking or unauthorized touching of an SCDC employee or other governmental agency employee, volunteer, or contract employee, or volunteer with or without a weapon or the throwing of any substance at or on an SCDC employee or other governmental agency employee, or contract employee who is exercising legitimate authority over an inmate, when such hitting, striking, throwing, or unauthorized touching causes bodily injury.
The Record clearly supports the facts recited in the “Background” portion of this Order. Those facts establish substantial evidence that Appellant willfully struck or touched an SCDC employee by unauthorized means.
ORDER
IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and the Final Decision of the Department is AFFIRMED;
AND IT IS SO ORDERED.
_________________________________
Ralph K. Anderson, III
Administrative Law Judge
June 16, 2005
Columbia, South Carolina
This argument was not raised at Appellant’s hearing below. Therefore, it cannot be addressed on appeal. See Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 458 S.E.2d 542 (1995) (In reviewing a final decision of an administrative agency, the Administrative Law Judge “has a limited scope of review, and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency.”). Furthermore, in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974), the U.S. Supreme Court established the due process procedures that must be followed to insure that an inmate receives due process in a disciplinary proceeding that revokes the inmate’s state created liberty interest. The Court held that in cases in which an inmate is illiterate or the complexity of the issue(s) in the case “makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case,” the inmate is entitled to “to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.” Wolff, at 570. Nevertheless, inmates do not have a right to either retained or appointed counsel in disciplinary proceedings. The Court held in Wolff, that “insertion of counsel into the disciplinary process would inevitably give the proceedings a more adversary cast and tend to reduce their utility as a means to further correctional goals.” Id.; See also Horne v. Coughlin, 155 F.3d 26, 30 (2nd Cir. 1998) (even an inmates “right” to counsel substitute “rests only on inconclusive dicta.”). Therefore, Appellant also failed to establish a due process violation by the Department.
In Sullivan, the Supreme Court also found that other conditions of confinement could potentially implicate a state created liberty interest. However, those interests are “generally limited to freedom from restraint which. . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sullivan v. S.C. Department of Corrections (355 S.C. 437, 586 S.E.2d 124 (2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
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