South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Dr. Shaka Macumba Zulu X, #123197 vs. SCDOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
Dr. Shaka Macumba Zulu X, #123197

Respondent:
South Carolina Department of Corrections
 
DOCKET NUMBER:
00-ALJ-04-00143-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER ON REMAND

This matter is before the Administrative Law Court (ALC or Court) pursuant to an Order issued by Circuit Court Judge James R. Barber, III on March 18, 2004 which remanded this case for further consideration of the issues raised by Dr. Shaka Macumba Zulu X, #123197, a/k/a Michael Wayne Montgomery (Appellant), in his “original Notice of Appeal” (NOA).[1]

On June 25, 2004, this Court issued an Order which agreed with Judge Barber that several issues raised by Appellant in his Notice of Appeal (NOA) in this case, which was filed on April 28, 2000, were not addressed by this Court in its Order of Dismissal dated November 15, 2001. The parties have been provided an opportunity to file with this Court a listing of any issues raised by Appellant in his NOA in this matter. Further, by Order dated August 9, 2004 this Court required the parties to file additional memoranda and documentation regarding the issues on appeal.

This Court issues the following Order after having again reviewed the file in this case, as well as the entire contents of the file and case assigned Docket No. 00-ALJ-04-00367-AP. Also, this Court has reviewed the memoranda filed by both the Appellant and the South Carolina Department of Corrections (Department).

Procedural History

The subject matter of this action is contained in Appellant’s NOA which was filed with this Court on April 28, 2000. That NOA encompasses four PCR actions which were originally filed in 1995. In that NOA, Appellant challenged “the constitutionality and legality of disciplinary proceedings and sanctions by SCDC.” Appellant provided no specific factual basis to support this broad statement. On May 30, 2000 Appellant filed his Brief in which he raised the following issues:


(A) Did the Respondents violate law and/or Appellant’s constitutional rights and protections in its disciplinary proceedings and punitive sanctions against him?

 

(B) Are the Respondents violating law/or Petitioner’s Constitutional rights and protections by maintaining the disciplinary convictions in their records and allowing it to be used against him in matters of classification, custody, and considerations by the state parole board for his release back into society?

 

(C) Are the records of the disciplinary hearings and relevant proceedings inadequate to allow Petitioner to exercise his lawful right to have the judiciary review the proceedings to determine whether or not each was arbitrary or capricious?

Appellant filed a Motion for Default, dated May 24, 2000, in which he alleged that the Department failed to timely file the Record on Appeal. On June 16, 2000, the Department filed a Motion to Enlarge Time to file the record on appeal. Appellant opposed the Motion to Enlarge Time by letter dated June 27, 2000 and filed a Renewal for Motion for Default on July 31, 2000. Various other procedural motions and responses were filed in the matter. None of these motions were addressed by this Court. On November 15, 2001, this Court issued an Order of Dismissal. The Order stated that the appeal was in reference to Grievance Nos. MSU-004-00, MSU-435-99, MSU-432-99, and MSU-438-99 and found that they did not challenge the calculation of a sentence, sentence-related credits or custody status. Thus, the case was dismissed pursuant to McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001).

Appellant appealed the Order of Dismissal, alleging that the issues in the matters dismissed “pertain to denial of required due process at disciplinary proceedings where good time merits and serious sanctions were imposed.” (Notice of Appeal and Appeal to Dismissal of ALJD Case #00-ALJ-04-143-AP). In his Order dated March 18, 2004, Judge Barber agreed with Appellant, stating that “the Order of Dismissal is not consistent with the issues raised in the Notice of Appeal.” Judge Barber remanded the case to the undersigned “to be decided on the issues raised in Dr. X’s Notice of Appeal.”

Analysis

I.                   Jurisdiction and Required Specificity of Claims

This appeal is before this court pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), Sullivan v. S.C. Dep’t of Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003), and Slezak v. S.C. Dep’t of Corrections, 361 S.C. 327, 605 S.E.2d 506 (2004). Pursuant to these cases, the ALC has jurisdiction to hear properly perfected cases where an inmate challenges a condition of his confinement that implicates a state-created liberty interest. In this case, Appellant alleges that the Department violated his due process rights in its disciplinary proceedings and sanctions against him.

As Al-Shabazz indicates and the Administrative Procedures Act (APA) requires, the type of case properly before this Court in these appellate matters must be one in which a final agency decision has been issued by the Department. See Al-Shabazz, 527 S.E.2d at 751 (an inmate may seek review of the Department’s final agency decision in an administrative matter under the APA). Here, Appellant alleges his constitutional rights have been violated with respect to over one hundred fifty (150) infractions and convictions listed on his Inmate Infraction History sheet. (See Brief of Appellant, Exhibit A, pp. 63-75). However, Appellant has not provided the Court with copies of any grievances or final decisions issued by the Department in any of these infractions or convictions. Indeed, the record is devoid of any indication that Appellant ever filed any grievances with the Department in these matters, nor that the Department ever issued any final decisions. Accordingly, this Court is unable to provide judicial review of any matter arising within the Department, whether based upon issues of procedural due process or otherwise, when no grievances have been filed with the Department and no final decision has been issued.

Secondly, Appellant has not set forth with specificity any of the alleged constitutional violations committed by the Department in his disciplinary matters. ALC Rule 59 requires that an inmate provide the factual basis for each expressly and specifically asserted constitutional violation. While Appellant’s submissions to the Court are voluminous, none of them contain any specific information with respect to any given disciplinary infraction. Instead, Appellant merely provided a computer printout of some 150 disciplinary infractions dating from 1985 to 1993, along with the blanket assertion that the procedures used by the Department in all his disciplinary proceedings violated his rights to due process and equal protection. Thus, contrary to Appellant’s assertion in his Brief that his filing “clearly states a cause of action,” Appellant’s submissions to the Court in this matter fail to raise any cognizable claim for appellate review. See First Sav. Bank v. McLean, 314 S.C. 361, 444 S.E.2d 513 (1994) (where a party’s argument is merely a conclusory statement, the issue is deemed abandoned on appeal).

II. Claims Regarding Solitary Confinement

Even if Appellant had exhausted his administrative remedies and had stated his claims with the requisite specificity, his claims concerning punitive solitary confinement are moot. Most of the disciplinary infractions listed on the computer printout supplied to the Court resulted in the imposition of administrative segregation. However, Appellant was released from MSU on August 25, 2000. (See Transfer History). The Supreme Court has spoken on the issue of mootness:

This Court will not pass on moot and academic questions or make an adjudication where there remains no actual controversy. [citation omitted]. A case becomes moot when judgment, if rendered, will have no practical legal effect upon the existing controversy. This is true when some event occurs making it impossible for [a] reviewing Court to grant effectual relief. [citation omitted].

 

Jones v. Dillon-Marion Human Resources Development Commission, 277 S.C. 533, 291 S.E.2d 195 (1982).

In this case, Appellant is no longer being confined in the MSU. Therefore, a judgment in his favor on any claims stemming from his placement in MSU would have no practical effect upon the nature of his confinement, and these claims are moot.

However, Appellant argues that the issue of his confinement in MSU will have a negative effect on his parole because his time in confinement will continue to be a part of his record. Appellant’s assertions do not implicate his parole eligibility, but rather his “suitability” for parole, which is a discretionary matter determined by the Board of Probation, Parole, and Pardon Services based upon an extensive review of the statutory factors as set forth in S.C. Code Ann. §24-21-640. See Harris v. State, 309 S.C. 466, 424 S.E.2d 509 (1992), overruled on other grounds by Al-Shabazz v. State, supra. Our Supreme Court has ruled that although an inmate has a liberty interest in parole eligibility pursuant to S.C. Code Ann. § 24-21-620, the statute creates no such liberty interest in parole itself: “Although [section 24-21-620] creates a liberty interest in parole eligibility, it does not create a liberty interest in parole.” Furtick v. S.C. Dep’t of Probation, Parole, and Pardon Services, 352 S.C. 594 at 598, 576 S.E.2d 146 at 149 n.4 (emphasis added). Therefore, Appellant’s claims that his disciplinary record may impact the Parole Board’s determination whether to grant him parole do not implicate a liberty interest. Moreover, Appellant’s disciplinary record is only one factor which must be considered by the Board in making its discretionary determination whether to grant Appellant parole. See Section 24-21-640; Harris at 468-69. This Court cannot speculate as to whether Appellant’s disciplinary record will adversely impact his suitability for parole. Appellant’s argument does not, therefore, alter the fact that his claims regarding solitary confinement are moot.

III. Claims Regarding Lost Good Time Credits

Appellant also contends that the Department unlawfully revoked his good time credits. Prior to his conviction of murder in November of 1985, Appellant earned good time credits for a short period of time. According to his infraction sheets, he lost 90 days of good time for three disciplinary convictions in March of 1985. As stated above, Appellant provided no evidence that he ever timely filed grievances concerning any of these three convictions, and there is no document in the record, other than the computer generated infraction sheets, which provides the particulars of any of the disciplinary hearings in question. Thus, these claims are not properly before this Court. Moreover, Appellant filed his PCR applications (95-CP-40-2114, 95-CP-40-2128 and 95-CP-40-2927) that are the subject of this case some 10 years after the sanction of the loss of good time credits. Appellant provided no explanation for his undue delay in asserting these claims.

The Department in its “Response to Order Requiring Response and Renewed Motion to Dismiss” asserts that “Appellant’s relatively recent claim to lost good time is barred by the doctrine of laches in that Appellant failed to file a PCR regarding the loss of such good time until ten years after he lost such good time.”

The doctrine of laches is an equitable principle designed to bar stale claims. When a party neglects to assert a right or claim for an unreasonable and unexplained length of time and the lapse of time and other circumstances cause prejudice to the adverse party, relief is denied on the grounds of laches. The mere passage of time is not enough to invoke the doctrine. For laches to apply, the court must consider the circumstances surrounding the delay and any disadvantage to the other party caused by that delay.

Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 840 P.2d 1107 (1992). The doctrine of laches is applicable to post-conviction relief actions in South Carolina and may bar any action where there is no applicable statute of limitations. Whitehead v. State, 352 S.C. 215, 574 S.E.2d 200 (2002).

In this case, due to the lapse of time since Appellant’s disciplinary convictions occurred, there is no longer any record of the disciplinary hearings on these convictions. Furthermore, at this late date it is likely that the charging officers, hearing officers, and witnesses to the alleged infractions are no longer available to provide information. Under these circumstances, I find that the Department has shown sufficient prejudice to establish laches. See Richey v. Dickinson, 359 S.C. 609, 598 S.E.2d 307 (Ct. App. 2004) (finding that claimant’s worker’s compensation claim was barred by eleven-year failure to assert claim, where all records of the claim had been destroyed).

For all the foregoing reasons, I find that this matter must be dismissed.

 

IT IS THEREFORE ORDERED that this matter is DISMISSED WITH PREJUDICE.

AND IT IS SO ORDERED.

 

 

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

 

July 18, 2005

Columbia, South Carolina



[1] At the outset, the Court notes that it is extremely difficult to determine exactly which of Appellant’s claims are the proper subject of this appeal. Appellant’s cases, (the instant case, along with another case docketed as 00-ALJ-04-00367-AP), were originally filed as PCR applications in the Richland County Court of Common Pleas, and were remanded to this Court as a result of the South Carolina Supreme Court’s decision in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), which preserved all then pending PCR applications raising “non-collateral” claims for appellate review by this Court. Appellant’s two appeals filed with this Court, Docket Nos. 00-ALJ-04-00143-AP (# 00143) and 00-ALJ-04-00367-AP (#00367), together comprise appeals of some 150 disciplinary infractions dating back as far as 1985, as well as a number of grievances unrelated to disciplinary infractions. Appellant has unduly complicated the Court’s task by aggregating numerous claims and filing multiple, and often duplicative, Notices of Appeal in both cases. Furthermore, although the instant appeal concerns only #00143, Appellant is attempting to raise issues which pertain to #00367. Appellant argues in his brief of June 29, 2004 that the Court failed to consider all arguments he raised in his Notice of Appeal dated April 6, 2000, which was filed in #00367. Appellant failed to appeal this Court’s November 15, 2001 Order of Dismissal which ended #00367. Thus, this Court’s rulings pertaining to #00367 are the law of the case and Appellant is foreclosed from making any arguments pertaining to that case in the context of an appeal of #00143. Priester v. Brabham, 230 S.C. 201, 95 S.E.2d 167 (1956) (where appellants failed to appeal a ruling by the court, that ruling, whether correct or not, was the law of the case). The only issues properly before the Court in this matter are those contained in Appellant’s original Notice of Appeal filed in this matter on April 28, 2000, as recognized by Judge Barber in his Order of March 18, 2004.


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