South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

Van Starling, #226109 vs. SCDOC

South Carolina Department of Corrections

Van Starling, #226109

South Carolina Department of Corrections





This matter is before the Administrative Law Court (ALC or Court) pursuant to the appeal of Van Starling, an inmate incarcerated with the South Carolina Department of Corrections (Department). Starling filed a grievance with the Department objecting to his custody status and received the Department’s final decision on March 31, 2005. On May 23, 2005, Starling filed this appeal with the Administrative Law Court (ALC).


The Division’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). When reviewing the Department’s decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz 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) (1986 & Supp. 2002). 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 S.C. Code Ann. § 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 (1999); South Carolina Dept. of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (1998).


In his appeal, the Appellant argues that the Department has violated his “liberty interest” because it has placed him in the Special Management Unit for nine (9) months without a disciplinary charge and without any review by the Department to determine the reason for placing him on that Unit. The Department contends that the Appellant failed to establish that his placement in security detention implicates a liberty interest. In particular, the Department contends that there is no evidence to suggest that his current status imposes an “atypical and significant hardship” upon the Appellant.

To obtain relief before the ALC, the Appellant must show that the Department abridged a liberty interest in his custody status without due process of law. See Al-Shabazz v. State, 527 S.E.2d at 750. “The federal constitution vests no liberty interest in inmates in retaining or receiving any particular security or custody status as long as the challenged conditions or degree of confinement are within the sentence imposed and are not otherwise violative of the Constitution.” Brown v. Evatt, 322 S.C. 189, 194, 470 S.E.2d 848, 851 (1996). Furthermore, “the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner.” Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293 (1995), citing Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538 (1976). “Liberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864 (1983). In Sandin, supra, the U.S. Supreme Court adopted a two-prong approach in determining if a prisoner's constitutionally protected liberty or property interests are implicated concerning his custody or confinement status. Consequently, an inmate’s interest in his custody or confinement status is not protected by the Due Process Clause unless the Department's actions concerning that interest either:

1. Result in an "atypical" and significant hardship in either duration or degree of restriction from other inmates (Id. at 486); or

2. Will "inevitably affect the duration" of the prisoner's sentence (Id. at 487).

The first prong addresses liberty interest determinations related to state-created liberty interests; the second prong addresses liberty interest determinations derived from the Due Process Clause itself. See Carrera v. Nebraska Dept. of Correctional Services, 2005 WL 2042305 (D. Neb. 2005) (slip copy). Therefore, the only issue before the ALC is whether there is a liberty interest which emanates from state law or, in other words, whether Appellant’s custody is an atypical and significant hardship from that experienced by other inmates.

Furthermore, after Sandin, courts began confusing the inquiry concerning liberty interests with the separate issue of what process is due, if indeed, a liberty interest does exist. The Supreme Court clarified this perplexity in Wilkinson v. Austin, __U.S. __, 125 S.Ct. 2384 (2005). In Wilkinson, the Court explained that the two prong approach enunciated in Sandin dealt with the determination of whether a liberty interest exists. Once a court determines that such an interest exists, it will inquire as to what process is due. That inquiry is made by considering the three factors established in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976).

Liberty Interest

Appellant is not in the Special Management Unit for disciplinary reasons. Rather, he has been placed on the Special Management Unit until an investigation into the Appellant’s possible gang activity as a result of events occurring at Evans Correctional Institution on October 25, 2004 is concluded. He contends that he does not receive any good-time credits as a result of his placement upon that unit. The Department asserts otherwise. The Appellant pled guilty to the charges of manufacturing/distributing crack cocaine and other offenses in the Court of General Sessions for Kershaw County. By statute, the Appellant is not eligible for parole and must serve 85% of his sentence. See S.C. Code Ann. § 24-13-100. Moreover, the Record simply does not reflect that Appellant fails to receive good-time credits or that the length or potential length of his confinement at SCDC has been affected by his placement in the Special Management Unit.[1]

Appellant also now contends that his visitation privileges from children have been reduced. He also asserts that he is not allowed to “write the outside world” or request law books like other segregated prisoners. He further contends that as a result of his placement in the Special Management Unit he is:

·      confined with a greater number of mentally ill inmates who are more disruptive,

·      forced to endure the fire alarm ringing for long periods of time,

·      subjected to unsanitary conditions from the commodes flooding,

·      served cold, spoiled or less food,

·      not permitted as much recreation, phone calls or showers,

·      not allowed as much access to the law library and certain educational and rehabilitative programs.

Appellant has been in the Special Management Unit for over nine (9) months. However, Appellant made no complaint in his Step 1 grievance about the conditions in the Special Management Unit. More specifically, Appellant made no argument and presented no evidence as part of the agency-level proceeding that his placement in the Special Management Unit constitutes an atypical and significant hardship in relation to the ordinary incidents of prison life. Therefore, Appellant failed to establish facts supporting the liberty interest he now asserts. See Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 458 S.E.2d 542 (1995).

Additionally, in Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162 (2003), the U.S. Supreme Court addressed whether the Michigan substance abuse regulations which restricted, in part, visitation by children violated the substantive due process mandate of the Fourteenth Amendment, or the First or Eighth Amendments. The Court upheld those restrictions, finding that the regulations bore a rational relation to “legitimate penological interests.” The Court further held that: “Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration.” Id. at 131. Following that determination, the Sixth Circuit in addressing the same regulation found that although the impact of visitation restrictions upon prisoners was “severe,” there is no implicit guarantee in the Due Process Clause to a right to prison visitation. Bazzetta v. McGinnis, 430 F.3d 795 (6th Cir. 2005). Accordingly, if there are visitation restrictions in the Special Management Unit, those restrictions do not implicate a liberty interest.

The Due Process Clause also does not grant a prisoner a liberty interest in remaining in the general prison population. Sandin, supra. More specifically, “the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.” Hewitt v. Helms, 459 U.S. at 468. In addition, the “Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner.” Sandin, 515 U.S. at 478. In fact, “[e]ven a transfer to a maximum security facility with more burdensome conditions is within the normal limits or range of custody which the conviction has authorized the State to impose. This is true even though such a transfer operates as a real hardship on the inmate who is effectively separated by the transfer from his only contact with the world outside the prison.” Bazzetta v. McGinnis, 430 F.3d 795, 804 (6th Cir. 2005) (quoting in part Meachum v. Fano, 427 U.S. 215, 228 (1976) and Montanye v. Haymes, 427 U.S. 236 (1976) (internal quotations omitted)).

More importantly, an inmate’s simple assertion that he is held in the Special Management Unit, without evidence that that the custody is atypical and a significant hardship, does not establish a liberty interest. Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (“We have consistently held that administrative and disciplinary segregation are not atypical and significant hardships under Sandin.”) Though the courts have not developed a consensus regarding how much time in “segregation” can be considered an atypical and significant hardship, prior opinions offer guidance. In Griffin v. Vaughn, the Third Circuit Court of Appeals held that administrative confinement for fifteen months did not impose an atypical and significant hardship. 112 F.3d 703, 706 (3rd Cir.1997). Similarly, in Jones v. Baker, the Sixth Circuit held that administrative segregation for two and one-half years was not an atypical and significant hardship. 155 F.3d 810, 813 (6th Cir.1998).

Furthermore, in Harbin-Bey v. Rutter, 420 F.3d 571 (6th Cir. 2005), the Court addressed a similar factual issue, though heard upon a different constitutional theory. The prisoner was designated as an STG [Security Threat Group] member because of his gang affiliation. That designation caused him to be “permanently excluded from community placement, placed on visitor restrictions, and more.” Id. at 575. The Court concluded that the prisoner’s designation as an STG member fit well within the Sandin decision and therefore did not violate the Equal Protection Clause. In making that determination the Court held that “an increase in security classification, such as being classified as an STG member, does not constitute an ‘atypical and significant’ hardship in relation to the ordinary incidents of prison life because a prisoner has no constitutional right to remain incarcerated in a particular prison or to be held in a specific security classification.” Id. at 577 (internal quotations omitted).

Here, Appellant is not in solitary confinement but is rather simply in a Unit with heightened security and reduced privileges. He simply has not established that his conditions are outside the ordinary realm of what is to be commonly expected of prison life or that his custody status is not within the range of confinement to be normally expected for one serving his sentence. In fact, restrictive custody is “the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864 (1983).[2] Moreover, Appellant did not show that his placement in the Special Management Unit had an effect on the overall duration of his imprisonment. I therefore find he has not sustained his burden of proof that a liberty interest is implicated.

Finally, in Wilkinson, supra. the U.S. Supreme Court recently held that “a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin v. Conner.” 125 S.Ct. at 2393 (emphasis added). In Brown v. Evatt, 322 S.C. 189, 470 S.E.2d 848 (1996), the S.C. Supreme Court followed a similar analysis in requiring that the inmate must show that state law placed substantive limitations on the state prison official’s discretion.[3] Appellant did not establish that state law places substantive limitations on the department’s discretion in placing him in the Special Management Unit. In other words, Appellant failed to show what, if any, regulation the Department failed to follow.

Due Process

Even if Appellant has a liberty interest implicated by his placement on the Special Management Unit, he did not establish facts sufficient to show that the Department failed to grant him Due Process. In Wilkinson v. Austin, the Supreme Court in determining what process is due an inmate challenging his detention held that where:

the inquiry draws more on the experience of prison administrators, and where the State's interest implicates the safety of other inmates and prison personnel, the informal, nonadversary procedures set forth in Greenholtz, 442 U.S. 1 (1979), and Hewitt v. Helms, 459 U.S. 460 (1983), provide the appropriate model.[4]

125 S.Ct. at 2397 (internal citations omitted). In Hewitt v. Helms, the Supreme Court addressed the issue of what process was due to an inmate who was removed from the general prison population and confined to administrative segregation following a riot in the prison. The Court explained that:

In determining what is “due process” in the prison context, we are reminded that “one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.” “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” These considerations convince us that petitioners were obligated to engage only in an informal, nonadversary review of the information supporting respondent's administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.

459 U.S. at 472 (citations omitted). The Supreme Court then held that:

An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.

459 U.S. at 476. Therefore, an inmate placed in the Special Management Unit must receive notice of the reasons for his placement and the Department need only have conducted an informal, nonadversarial review of the information supporting the Appellant’s confinement, including whatever statement he wished to submit. Furthermore, the S.C. Supreme Court has held that the downgrading of an inmate’s custody status is not subject to judicial review as long as prison officials do not act arbitrarily, capriciously, or from personal bias or prejudice. Al-Shabazz, supra; Crowe v. Leeke, 273 S.C. 763, 259 S.E.2d 614 (1979).

Here, SCDC Policy/Procedure OP-22.12 § 1.1 provides, in part, that the warden or approved designee may confine an inmate to the Special Management Unit if:

·        The inmate’s presence in the general population would create a threat to the safety, security, and/or order of the institution;

·        It is necessary to maintain the integrity of the investigation, i.e., to preserve the integrity of information either in the inmate’s possession or another inmate’s possession;

·        The inmate is a threat to the physical safety of other inmates or staff.

However, the placement of an inmate in the Special Management Unit must be reviewed within 72 hours. Afterwards, an inmate’s status is periodically reviewed by the Institutional Classification Committee every 7 days for the first 60 days and then at least every 90 days or less depending on the security detention level. SCDC Policy/Procedure OP-22.12 § 4. The inmate is present for the review unless the warden or designee determines that “there is a valid security concern which would prevent the inmate’s presence, or the inmate waives his/her right to appear.” SCDC Policy/Procedure OP-22.12 § 4.3. Even if an inmate is not present for the review, the ICC is required to provide the inmate with a copy of its recommendation no later than 48 hours after the review. SCDC Policy/Procedure OP-22.12 § 6. Moreover, within 180 days of an inmate’s placement in the Special Management Unit a representative from the State Classification Committee will be required to “make an on-site evaluation and review the inmate.” SCDC Policy/Procedure OP-22.12 § 8.1.

The Appellant did not allege in the proceeding below that the Department failed to follow its procedures. Issues or arguments that were not raised to and ruled on by the Department are ordinarily not preserved for review. Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 458 S.E.2d 542 (1995). Therefore, the allegations Appellant now raises are not properly before the ALC. Moreover, Appellant was clearly granted Due Process. The above procedures exceed Constitutional review required under the facts of this case. In addition to those procedures, Appellant has also been provided the right to challenge his placement in the Special Management Unit through the Department’s grievance procedure. In both the Step 1 & Step 2 grievances Appellant was allowed to present the reasons why he believed he should be removed from the Special Management Unit and in each instance he received a response from the appropriate authority. Consequently, Appellant received notice of the reasons for his placement in the Special Management Unit and following his complaints the Department conducted a nonadversarial review of the information supporting the Appellant’s confinement. Furthermore, the Appellant has not raised or established that the Department “acted arbitrarily, capriciously, or from personal bias.” Crowe v. Leeke, 259 S.E.2d at 615.


IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED and the appeal of the Appellant is DENIED.


Ralph King Anderson, III

Administrative Law Judge

February 3, 2006

Columbia, South Carolina

[1] Appellant also contends that his sentence will be lengthened because he is not able to earn work credits in the Segregated Maximum Unit. Inmates, however, have no protected interest in the ability to earn work credits. Unlike “good time” credits, which an inmate is entitled to pursuant to state law, the opportunity to earn work credits is at the discretion of the Department Director. S.C. Code Ann. 24-13-230(A) and (D); see also Olim v. Wakinelona, 461 U.S. 238, 249 (1983) (unless state law places “substantive limitations” on official discretion, no liberty interest is created). Due to the discretionary nature of earned work credits, the inability to earn those credits is an “ordinary incident of prison life.” See Sandin. Furthermore, as the loss of the potential to earn those credits would not “impose an atypical and significant hardship” or “inevitably affect the duration” of Appellant’s sentence, no due process is required before the Department places restrictions on an inmate's ability to earn such credits. Id. See also Trantino v. Dept. of Corrections, 168 N.J. Super. 220, 402 A.2d 947 (App. Div. 1979); Rowe v. Fauver, 533 F. Supp. 1239 (D. N.J. 1982). Accordingly, Appellant has no constitutionally protected liberty interest in work credits.

[2] “In Sandin's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system.” Wilkinson v. Austin, 125 S.Ct. at 2394. In Beverati v. Smith, 120 F.3d 500 (4th Cir. 1997), the Fourth Circuit used the general prison population as the comparative baseline to determine whether the inmates possessed a liberty interest in administrative segregation. On the other hand, the District of Columbia Circuit and the Third Circuit have compared the inmate’s confinement to the conditions typically found in administrative segregation. See Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir.1999); Griffin v. Vaughn, 112 F.3d 703 (3rd Cir.1997). I find that the analysis found using the typical conditions found in administrative segregation as the comparative baseline to be the better reasoned approach. In other words, “a deprivation in prison implicates a liberty interest protected by the Due Process Clause only when it imposes an ‘atypical and significant hardship’ on an inmate in relation to the most restrictive confinement conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences.” Hatch, 184 F.3d at 856. Nevertheless, following either analysis the Appellant failed to establish a liberty interest in this case.

[3] In Sandin the Court abandoned the approach of Hewitt v. Helms that established a protectable liberty interest whenever a statute or regulation explicitly mandated a particular result and returned to the principles out in Wolff, supra. and Meachum v. Fano, 427 U.S. 215 (1976). Tellier v. Fields, 280 F.3d 69 (2nd Cir. 2000). “Read together, Sandin, Wolff, and Meachum, all support the proposition that a statute or regulation which involves ‘state-created rights,’ creates a protectable liberty interest when an official's failure to adhere to the statute results in an ‘atypical, significant deprivation,’ of ‘real substance,’ and not simply ‘ephemeral and insubstantial’ violations.” Id. at 83 (quoting Wolff, Sandin and Meachum) (internal cites and punctuation omitted).

[4] “Although Sandin abrogated Greenholtz's and Hewitt's methodology for establishing the liberty interest, these cases remain instructive for their discussion of the appropriate level of procedural safeguards.” Wilkinson, at 2397.

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