ORDERS:
ORDER
STATEMENT
OF THE CASE
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).
STANDARD
OF REVIEW
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).
DISCUSSION
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.
ORDER
IT
IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED and the appeal of the Appellant is DENIED.
AND
IT IS SO ORDERED.
Ralph King
Anderson, III
Administrative
Law Judge
February 3, 2006
Columbia, South Carolina
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