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;
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;
4. He
was not afforded a counsel substitute as defined in SCDC Policy OP-22-14; and
5. The
Department failed to timely respond to his Step 1 grievance.
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.
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
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)).
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