ORDERS:
ORDER
STATEMENT OF CASE
This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Lavern Gause, an inmate incarcerated with the Department of Corrections (DOC or Department). Gause was convicted of violating SCDC Disciplinary Code §1.03, Striking an Employee With or Without a Weapon (Striking an Employee) and § 2.13, Refusing or Failing to Obey Orders. As a result of his conviction, the Appellant lost sixty (60) days of “good-time” credit. Gause filed a grievance with the Department and received the Department’s final decision on September 12, 2001. On October 1, 2001, Gause filed this appeal with the Division.
BACKGROUND
On July 29, 2001, Sergeant Marshall, a DOC employee, was conducting a “shakedown” in Allendale Correction Institution. As part of the search, Sergeant Marshall ordered the Appellant to remove his clothes and pass them through the food service flap. The Appellant refused. Sergeant Marshall then ordered the Appellant to move to the cell door so that he could be handcuffed. Again the Appellant refused to obey the order. Sergeant Marshall then gave the Appellant two more directives to move to the cell door so that he could be handcuffed and the Appellant continued to disobey the orders. Sergeant Marshall then sprayed the Appellant with gas but the Appellant continued to refuse to move to the cell door. At that point, the “Mark 9 fogger” was removed from the control room along with a video camera and was taken to the wing. Sergeant Marshall and Officers Combs and Reed returned to the Appellant’s cell and gave the Appellant two more orders to comply with their request. Once again the Appellant refused to comply and covered the food service flap with his mattress. When Sergeant Marshall and Officer Combs attempted to remove the mattress from the flap, the Appellant threw a white liquid substance upon Sergeant Marshall.
After the incident, Sergeant Marshall completed an Incident Report and submitted it to his supervisor. The Appellant was charged with violating SCDC Disciplinary Code § 1.03, Striking an Employee and § 2.13, Refusing or Failing to Obey Orders. He received written notice of the charges on July 31, 2001.
On August 8, 2001, a Major Disciplinary Hearing was held before a DOC Disciplinary Hearing Officer (DHO) concerning the charges of Striking an Employee and Refusing or Failing to Obey Orders. At the Appellant’s request, he was provided a counsel substitute during the hearing. Additionally, at the Appellant’s request, Sergeant Marshall was present at the hearing. During the hearing, the DHO read a narrative of Sergeant Marshall’s Incident Report into the Record and received testimony from the Appellant and Sergeant Galloway as evidence. During the hearing, the Appellant plead guilty to the charge of Refusing or Failing to Obey Orders but plead not guilty to the charge of Striking an Employee. At the conclusion of the hearing, the DHO found the Appellant guilty of Striking an Employee and Refusing or Failing to Obey Orders and sanctioned him with the loss of sixty (60) days of good time credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record which documented the DHO’s findings.
The Appellant filed a grievance on August 8, 2001, appealing his conviction of violating SCDC §§1.03 and 2.13. After reviewing his allegation, the Warden denied the Appellant’s grievance on August 27, 2001, finding that there were no procedural errors in the offense charged or his hearing. The Appellant appealed the Warden’s decision on August 28, 2001. The Department denied his grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violations that the Appellant committed. This appeal followed.
In his Appeal Brief, the Appellant alleges that:
1. The Record on Appeal is incomplete;
2. He was denied due process because the counsel substitute did not interview the Warden; and
3. The Disciplinary Hearing Officer was not impartial.
ANALYSIS
The Division’s jurisdiction to hear this matter is derived entirely 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 McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), the Division issued an En Banc Order interpreting the breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division’s appellate jurisdiction in inmate appeals is limited to two types of cases: (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 the Department has taken an inmate’s created liberty interest as punishment in a major disciplinary hearing.
In this case, the Appellant alleges that the Department improperly revoked sixty (60) days of 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, 338 S.C. at 370, 527 S.E.2d 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. Al-Shabazz, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
In Al-Shabazz, the Court held that inmates may seek review before this Division to ensure that the Department’s revocation of good-time credits as punishment in a “major disciplinary hearing” involving “more serious rule violations” comports with “minimal due process.” The ALJD inquiry into these matters is primarily concerned with ensuring that the Department has granted aggrieved inmates the process they are due when their constitutional rights are implicated. Id. When reviewing the Department’s decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz Consequently, the review in these inmate grievance cases is limited to the record presented. Furthermore, an Administrative Law Judge may not substitute his judgment for that of an agency unless the agency’s determination is arbitrary, affected by error of law, or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (1986 & Supp. 2000); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756. “‘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, 276 S.E.2d 304 (1981). Furthermore, 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, 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 Division adhere to a “hands off” approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz, 338 S.C. at 382, 527 S.E.2d 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).
I find that the Appellant was afforded all process due him pursuant to Al-Shabazz. The Record indicates that the 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, the Appellant was given the opportunity to offer evidence, call witnesses, and confront his accuser. In addition, although not constitutionally required, the Appellant was afforded a counsel substitute who assisted him in his defense. After the DHO determined that the Appellant was guilty of the charged offense, he prepared a written report detailing the evidence he relied upon and the penalty assessed in finding the Appellant guilty of the disciplinary infraction. Finally, the Appellant was permitted to appeal the DHO’s decision through the inmate grievance process.
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.
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Ralph K. Anderson, III
Administrative Law Judge
March 31, 2003
Columbia, South Carolina
This argument involves a SCDC Request to Staff which is discussed in his following arguments.
The Appellant contends that the Warden should have been required to attend the hearing upon his request to be a witness. In Wollf , the U.S. Supreme Court held that:
We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. 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. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.
Wolff at 94 S.Ct. 2979-2980. Extrapolating the reasoning out of Wolff, it is not a violation of due process for the Department not to call the Warden as a witness. The Warden was not a witness to the events of this case and the Appellant failed to establish how his testimony would be otherwise relevant. In fact, the only evidence presented by the Appellant concerning the Warden was a SCDC Request to Staff that he sent to the Warden after the date of the offense charged stating that he was aware of the location of $140.00 and a homemade knife. That information was unrelated to this case.
The Appellant contends that his counsel substitute did not investigate this case as he requested. In Wolff supra., the U.S. Supreme Court held that: “Where an illiterate inmate is involved, however, or whether the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free 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 94 S. Ct. 2982. Here, the Appellant did not allege or establish that he was either illiterate or that this case was of sufficient complexity to necessitate assistance in presenting his case. Therefore, he failed to establish that he was entitled to a counsel substitute.
Moreover, he contends his counsel substitute refused to investigate his case by contacting the Warden. However, the Appellant requested that his counsel substitute contact the Warden and was informed that the Warden was not in his office at the time. The Appellant’s counsel substitute then informed the Appellant that he needed to discuss the case with her. The Appellant then became upset and left her office. Nevertheless, the Appellant’s counsel substitute discussed the matter with the Warden though the Appellant had already sent the Warden a SCDC Request to Staff on the subject. Therefore, the Appellant failed to establish that his counsel substitute did not adequately represent his interest.
The Appellant contends that his hearing officer was not impartial. In particular, he contends that she was involved in “the investigation.” In support of that allegation he cites a SCDC Request to Staff that he sent to the Warden after the date of the offense charged stating that he was aware of the location of $140.00 and a homemade knife. The disposition of that request notes that Captain Allbritton was to interview him and relay the information to the Warden along with the knife. I find that his allegation of Request to Staff he sent after the offense on an unrelated matter fails to establish that his hearing officer was not impartial.
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