SC Administrative Law Court Decisions

On September 13, 2000, at approximately 7:55 p.m., Appellant was charged with a violation of 1.10 at the office of Lt. Joe Smith. The only record of what transpired at the time of the alleged violation is that made by Appellant in his brief. The hearing before the DHO was held on September 19, 2000. The Department did not present any witnesses. Appellant did attend and he testified. During the hearing, the DHO read from some unidentified document which one could conclude was a statement by Lt. Joe Smith.^[1] The DHO read that Appellant “tested positive for THC, was given a confirmation test which he also failed” and thus he was charged with the violation of 1.10. The DHO then noted that the document was also signed by “Cpt. Whitney Smith, also Major Brewton (inaudible) this is a Major offense.” This document, however, was not made a part of the record by the DHO, nor was it included in the record filed with the Division by the Department. Made a part of the record was a document captioned “Controlled Substance and Disposition Form,” which is included in the record filed with the Division. This document consists simply of an assigned “Control/Log Number,” the name of the institution and the inmate (Appellant), the institution number assigned to the inmate (Appellant), and in the “Drug/Alcohol Analysis” section, the line after “Other” includes the words “Drug Test Positive THC.” It was signed by Joe Smith. The document is not dated and contains no indication of how the test was conducted, nor was there placed into the record any reading from the testing, just the conclusion by the charging officer that the result was positive.

In his brief and motion, Appellant argues that:

1.                  The testing was not in compliance with Department policy, GA-03.03, entitled “Inmate Drug Testing/Screening Program,” issued December 1, 1998.

2.                  The transcript of the hearing was not certified by the DHO, Capt. Ferguson, but by another on his behalf who was not present at the hearing.

3.                  The transcript of the hearing is incomplete and contains many inaudibles.

4.                  He was denied due process when the DHO imposed a sanction of 240 days loss of good time, as well as 20 days of good time for the month of the infraction and the loss of “50 days of anticipated earned work credit for service of sentence imposed.”

ANALYSIS

In Al-Shabazz, the South Carolina Supreme Court held that inmates may seek review of final decisions of the Department in certain “non-collateral” or administrative matters (i.e., those matters in which an inmate does not challenge the validity of a conviction or sentence) by appealing those decisions to the ALJD pursuant to the South Carolina Administrative Procedures Act (APA). Al-Shabazz, 338 S.C. at 376, 527 S.E.2d at 754. In McNeil v. South Carolina Department of Corrections, a majority of the judges of the ALJD, sitting en banc, held that this tribunal’s jurisdiction to hear inmate appeals under Al-Shabazz is limited to: (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. McNeil v. S.C. Dep’t of Corrections, No. 00-ALJ-04-00336-AP, slip op. at 4-5 (S.C. Admin. Law Judge. Div. Sept. 5, 2001) (en banc). In the case at hand, Appellant contends that the Department has taken good time credits as punishment in a major disciplinary hearing; accordingly, this tribunal has jurisdiction over this matter.

When reviewing the Department’s decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754. Consequently, this tribunal’s review of inmate appeals is confined to the record presented, id., and its 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. at 369, 527 S.E.2d at 750; McNeil, No. 00-ALJ-04-00336-AP, at 5 (“[O]ur review is limited solely to the determination of whether the Department granted ‘minimal due process’ in reaching [its] decisions . . . .”). Further, recognizing that prison officials are in the best position to decide inmate disciplinary matters, this tribunal will adhere to the traditional “hands off” approach to internal prison disciplinary policies and other internal prison affairs 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). However, notwithstanding this deferential standard of review, this tribunal must conduct meaningful review of the Department’s actions to ensure that inmate grievances are addressed in a fair, reasonable, and efficient manner. Al-Shabazz, 338 S.C. at 383, 527 S.E.2d at 757.

In this case Appellant contends that the Department’s drug test of his person on August 13, 2000 was contrary to its written policy. Further, he correctly notes that the DHO did not certify the transcript and that the transcript of the hearing is incomplete.

As this court has previously stated, the statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Wertz v. S. C. Department of Corrections, Docket No. 00-ALJ-04-00001-AP (citing Al-Shabazz v. State, 338 S.C. at 370, 527 S.E.2d at 750.) An inmate facing the loss of sentence-related credits is entitled to minimal due process to ensure that the state-created right is not arbitrarily abrogated. While due process is “flexible and calls for such procedural protections as the particular situation demands,” Stono River Envtl. Protection Ass’n v. S.C. Dept. of Health and Envtl. Control, 305 S.C. 90, 406 S.E.2d 340, 341 (1991), certain elements must be satisfied in order for procedural due process requirements to be met, including adequate 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 reason for his decision. Al-Shabazz, 338 S.C. at 372, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 2978-82 (1974).

Without a certified transcript of the disciplinary proceedings before the Department, it is impossible to afford any “meaningful judicial review” of the Department’s decision or to determine whether Appellant was afforded due process in this case. Although the Department did provide a transcript of sorts, this tribunal has no basis on which to rely on the accuracy of the transcript. All indices of reliability are missing: the transcript was not signed by the DHO who presided at the hearing and thus it is uncertified. Further, there are numerous gaps in the testimony. Absent any indices of reliability, this tribunal can not and will not rely on a transcript to determine whether the Department’s decision was supported by substantial evidence. Moreover, apart from the transcript, certain pieces of documentary evidence were omitted from the record or are incomplete. The DHO read from an offense report which was not made a part of the record. The drug testing report, which was made a part of the record, was not dated nor did it contain any information which sets forth the procedures followed during the testing. Accordingly, the record submitted by the Department is insufficient to enable the court to conduct a “meaningful” review of the Department’s determination as required by Al-Shabazz, and this matter must therefore be remanded to the Department for a new hearing.

IT IS THEREFORE ORDERED that this matter is hereby remanded to the Department to conduct a new contested case hearing, in accordance with the Department’s procedures for disciplinary hearings, on Appellant’s grievance within thirty (30) days of the Department’s receipt of this Order. At this hearing, any documentary evidence relied upon by the Department must be placed into the record by the DHO.

IT IS FURTHER ORDERED that the transcript of this hearing must be certified by the DHO who presided at the hearing as true, accurate, complete, and that it constitutes the entire record of the proceedings.

AND IT IS SO ORDERED.

Marvin F. Kittrell

Chief Administrative Law Judge

April 4, 2003

Columbia, South Carolina