South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
M. Rodney Jones, # 244189 vs. SCDOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
M. Rodney Jones, # 244189

Respondent:
South Carolina Department of Corrections
 
DOCKET NUMBER:
04-ALJ-04-00632-AP

APPEARANCES:
n/a
 

ORDERS:

Order

STATEMENT OF CASE

This matter is before the Administrative Law Court (ALC or Court) pursuant to the appeal of Rodney Jones, an inmate incarcerated with the Department of Corrections (Department). Jones was convicted of violating SCDC Disciplinary Code § 2.05, Use of Obscene, Vulgar, or Profane Language or Gestures (Use of Profane Language). As a result of his conviction, Jones lost thirty (30) days of “good-time” credit. Jones filed a grievance with the Department and received the Department’s final decision on December 7, 2004. On December 14, 2004, Appellant filed this appeal with the Court. Afterwards, this case was transferred to the undersigned on January 6, 2006.

BACKGROUND

On May 5, 2004, after Caseworker Bethea recommended that Appellant be placed upon security detention, he began explaining to Appellant the grievance procedures regarding that recommendation. At that point, Appellant became angry and called Mr. Bethea a “pussy ass nigger” and then stated to him to “suck his dick.” Thereafter, Caseworker Bethea completed an Incident Report charging the Appellant with Use of Obscene, Vulgar, or Profane Language or Gestures n violation of SCDC Disciplinary Code § 2.05.

On May 11, 2004, the Appellant was given written notice of the charge of violating Section 2.05 based upon the above facts. A hearing was held on May 18, 2004, before a Disciplinary Hearing Officer (DHO). At Appellant’s request he was provided a counsel substitute. Furthermore, Appellant waived his right to have his accuser present at the hearing. During the hearing, the DHO read a narrative of Caseworker Bethea’s Incident Report into the Record and received testimony from the Appellant as evidence. At the conclusion of the hearing, the DHO found the Appellant guilty of violating SCDC Disciplinary Code § 2.05 and sanctioned the Appellant with the loss of thirty (30) days of “good time” credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record, which documented the DHO’s findings based on the Record.

The Appellant filed a grievance appealing his conviction of violating SCDC Disciplinary Code § 2.05. The Warden denied the Appellant’s grievance. After he appealed the Warden’s decision, the Department denied his grievance. This appeal followed. In his Appeal Brief, the Appellant alleges that:

1. He never received 24 hours notice of the charges before the hearing was convened;[1]

2. No informal resolution of the case was attempted as required by Department policy;

3. He was not present at the hearing or allowed to present evidence;[2]

4. He was not afforded a counsel substitute as defined in SCDC Policy OP-22-14;[3] and

5. The Department failed to timely respond to his Step 1 grievance.[4]

STANDARD OF REVIEW

The Court’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). The Court’s appellate jurisdiction in inmate appeals is limited to state created liberty interests typically involving: (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 an inmate has received punishment in a major disciplinary hearing as a result of a serious rule violation. Id.[5]

When reviewing the Department’s decisions in inmate grievance matters, the Court sits in an appellate capacity. Id. 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) (Supp. 2004). 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 Section 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 (Ct. App. 1999); South Carolina Dept. of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998). “‘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, 135, 276 S.E.2d 304, 306 (1981). Accordingly, 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, 456, 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 tribunal adhere to a “hands off” approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz 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).


In this case, the Appellant alleges that the Department should not have revoked thirty (30) days of accrued 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 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. Id. at 751 (citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 2978-82 (1974)).

DISCUSSION

Due Process


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 stating the evidence he relied upon and the penalty assessed in finding the Appellant guilty of the disciplinary infraction. Finally, as evinced here, the Appellant was permitted to appeal the DHO’s decision through the inmate grievance process.

Substantial Evidence

I also find that there is substantial evidence to support the Appellant's conviction of violating SCDC Disciplinary Code § 2.05. In evaluating the evidence presented at the hearing, “[t]he fact finder is imbued with broad discretion in determining credibility or believability of witnesses.” Small v. Pioneer Machinery, Inc., 329 S.C. 448, 465, 494 S.E.2d 835, 843 (Ct. App. 1997). Disciplinary Code Section 2.05 sets forth Use of Obscene, Vulgar, or Profane Language or Gestures is: “The act of an inmate who verbalizes or writes lewd or indecent notes or letters to another person, when the person who receives [the] verbal statements, notes or letters complains of such.” “Lewd act” is defined as “sexually unchaste or licentious” or “obscene, vulgar.” Merriam‑Webster OnLine (2002), available at http://www.m‑w.com/. Merriam‑Webster OnLine further defines “indecent” as “not decent; especially : grossly unseemly or offensive to manners or morals.” The Record clearly supports the facts recited in the "Background" portion of this Order. When viewed in light of the DHO’s discretion, those facts sufficiently establish substantial evidence that the Appellant made verbal statements that were both “lewd” and “indecent.”

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.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

April 12, 2006

Columbia, South Carolina



[1] At the hearing into this matter, the DHO set forth that the records indicated that Appellant was served with notice of the charges on May 11, 2004. Neither Appellant nor his Counsel Substitute refuted that assertion. The DHO then proceeded with the hearing. The record further indicates that Appellant was aware of the charges before the hearing. Moreover, Appellant did not make a motion to continue this case in order to have time to prepare his case. To prove the denial of due process, a party must show that it has been substantially prejudiced by the administrative process. Palmetto Alliance, Inc. v. S. C. Public Service Comm’n., 282 S.C. 430, 319 S.E.2d 695 (1984). Furthermore, an inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. See Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 458 S.E.2d 542 (1995) (In reviewing a final decision of an administrative agency, the Administrative Law Judge “has a limited scope of review, and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency.”). The issue preservation requirement applies to assertions of constitutional violations as well. State v. Passmore, 2005 WL 415993 (Ct. App. 2005). In I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716 (2000), the South Carolina Supreme Court explained the underlying principle behind this rule:

Imposing this preservation requirement on the appellant is meant to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments. The requirement also serves as a keen incentive for a party to prepare a case thoroughly. It prevents a party from keeping an ace card up his sleeve—intentionally or by chance—in the hope that an appellate court will accept that ace card and, via a reversal, give him another opportunity to prove his case.

(internal citations omitted). Consequently, the Appellant’s allegation was not preserved for appellate review.

[2] The Record clearly shows that Appellant was present at the hearing and allowed to present all of the evidence he offered.

[3] The Record clearly reflects that Appellant was provided a counsel substitute.

[4] Appellant did not set forth any specific policy that the Department violated in responding to his grievance. Moreover, to prove the denial of due process, a party must show that it has been substantially prejudiced by the administrative process. Palmetto Alliance, Inc. v. S. C. Public Service Comm’n., 282 S.C. 430, 319 S.E.2d 695 (1984). The Appellant did not establish any harm that may have resulted from an untimely response. Furthermore, “a prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met.” Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).  The “constitutional minima” in this case is circumscribed by Al-Shabazz, supra. and Wolff v. McDonnell, 418 U.S. 539 (1974).  The Appellant failed to establish that these due process rights were violated.

[5] In Sullivan, the Supreme Court also found that other conditions of confinement could potentially implicate a state created liberty interest. However, those interests are “generally limited to freedom from restraint which. . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sullivan v. S.C. Department of Corrections (355 S.C. 437, 586 S.E.2d 124 (2003) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).


Brown Bldg.

 

 

 

 

 

Copyright © 2022 South Carolina Administrative Law Court