ORDERS:
Order
STATEMENT
OF CASE
This matter is before the Administrative Law Court (ALC or Court)
pursuant to the appeal of Jimmy Duncan, an inmate incarcerated with the
Department of Corrections (Department or DOC). Duncan was convicted of
violating SCDC Disciplinary Code § 1.20 (Throwing of any Substance or Object on
an SCDC Employee or other Government Employee, Contract Employee or Volunteer).
As a result of his conviction, Duncan lost six (6) days of “good-time” credit.
He filed a grievance with the Department and the Department issued a final
decision on May 13, 2005. Following the Department’s denial of that grievance,
Duncan filed this appeal with the ALC.
BACKGROUND
On
February 10, 2005, Officer Johnson approached Appellant Duncan’s cell to give
him a food tray. Appellant threw the tray out of the flap at Officer Johnson.
Officer Johnson administered one short burst of MK-IV into Appellant’s cell.
As a result, Appellant was charged with § 1.20 (Throwing of any Substance or
Object on an SCDC Employee or other Government Employee, Contract Employee or
Volunteer). A hearing was held on March 1, 2005. At his request, Appellant
was represented by a counsel substitute. Also, Appellant requested that his
accuser be present at the hearing. During the hearing, the DHO read a
narrative of the Incident Report into the Record and received testimony from Officer
Johnson. At the conclusion of the hearing, the DHO found the Appellant guilty
of the charge and sanctioned him to the loss of six (6) days good time. After
the hearing, the DHO completed a Major Disciplinary Report and Hearing Record
which documented the DHO’s findings.
Appellant
Duncan filed a grievance with the Department appealing his conviction of the
charge. After reviewing his contentions, the Warden denied Appellant’s
grievance. The Appellant then appealed the Warden’s decision and the
Department subsequently denied that grievance stating that the evidence
supported the conviction and that the sanction imposed was appropriate for the
violation that the Appellant committed. This appeal followed.
In
his Appeal Brief, Appellant alleges that:
1. His
right to Due Process was violated when his Hearing did not take place within
ten (10) days.
2. His
right to Due Process was violated because the Incident Report did not include
any witnesses or evidence.
3. His
right to Due Process was violated when the DHO failed to fully explain the
potential loss of good time.
4. His substitute council was ineffective.
STANDARD
OF REVIEW
The Court’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). 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.
As
set forth above, 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. 2005). 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, 455-456, 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, Appellant Duncan alleges that the Department
should not have revoked his six (6) 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
Appellant claims that
his right to Due Process was violated when his hearing did not take place
within ten (10) days. Appellant was formally charged on February 10, 2005 and
his hearing took place on February 23, 2005. Appellant is correct in that the
Hearing did not take place within the prescribed time, however he offers no
argument that he was in any way prejudiced by the lapse of time. 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, in Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993) the Court
held that “Hewitt makes
it clear, however, that the procedural due process required before one may be
deprived of a liberty interest is governed by federal constitutional law and
not state law. . . .” 4 F.3rd at 448. Therefore, “[t]here is no
constitutional violation when state actors fail to meet their own regulations,
so long as the minimum constitutional requirements have been met.” Id. See also Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (“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.”); Russell v. Coughlin, 910 F.2d
75, 78 n. 1 (2nd Cir.1990) (procedures for confinement in
segregation governed by federal law). Therefore, Appellant has failed to prove
that the lapse of time between his formal charges and the Hearing was in any
way unconstitutional.
Next Appellant argues
that the Incident Report should have included witnesses and evidence, such as a
photograph, in order to be used to convict him of the charge. Officer Johnson
filed the Incident Report and was the only witness to the event. Therefore, there
were no other witnesses to list. Furthermore, photographic evidence is neither
required nor common in these cases. The DHO has full authority to base her
decision on the evidence presented to her. The Record clearly supports the
facts recited in the “Background” portion of this Order. 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). Moreover, in Superintendent v. Hill, 472 U.S. 445, 455-56, 457 (1985), the U.S. Supreme Court held that the revocation of good time must be
supported by “some evidence in the record.” However, “[a]scertaining whether
this standard is satisfied does not require examination of the entire record,
independent assessment of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in
the record that could support the conclusion reached by the disciplinary
board.” Id. at 455. Therefore, Appellant’s argument that the DHO did
not have enough evidence, in the form of witnesses or photographs, is without
merit.
Appellant furthermore
claims that his rights were violated when the DHO failed to inform him that he
could lose good time. Appellant relies on SCDC OP-22.14 which states :
The charges will be explained by the Hearing
Officer to the inmate in terms he can understand. The Hearing Officer
will also inform the inmate that if a guilty plea is rendered or if he is
found guilty, he will automatically fail to earn his normal rate of good time
for the date/month of the rules violation.
At no time during the hearing did
Appellant request a further explanation of the charges before him. Moreover, as
noted above, a prison official's failure to follow the prison's policies or
procedures does not constitute a violation of due process, if constitutional
minima are nevertheless met. Myers, supra. The “constitutional
minima” in this case is circumscribed by Al-Shabazz, supra. and Wolff
v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963 (1974). The Appellant
failed to establish that these due process rights were violated.
Ineffective
Council
Appellant contends his
counsel substitute was inadequate in that he failed to retrieve evidence that
was most favorable in Appellant’s defense. However, the Appellant made no
objection to his counsel substitute’s representation at his hearing. 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.
Furthermore, in Wolff, supra., the U.S. Supreme Court did not require that an inmate must be
provided a counsel substitute prior to the hearing. Rather, the Court held
that: “Where an illiterate inmate is involved, however, or whether the
complexity of the issue makes it unlikely that the inmate will be able to
collect and present the evidence necessary for an adequate comprehension of the
case, he should be free to seek the aid of a fellow inmate, or if that is
forbidden, to have adequate substitute aid in the form of help from the staff
or from a sufficiently competent inmate designated by the staff.” 94 S.Ct. at
2982. Here, the Appellant did not allege or establish that he was either
illiterate or that this case was of sufficient complexity to necessitate
assistance in presenting his case. Moreover, the Appellant failed to establish
that favorable evidence existed that would have likely change the result of his
case. See, Palmetto, supra. (To prove the denial of due process,
a party must show that it has been substantially prejudiced by the
administrative process.); Cf. Nance v. Ozmint, -- S.C. --, 626
S.E.2d 878 (2006) (a criminal defendant must establish that his counsel's
representation fell below an objective standard of reasonableness and that the
deficient performance prejudiced the case).
Substantial
Evidence
I also find that there
is substantial evidence to support the Appellant's conviction of violating SCDC
Disciplinary Code § 1.20 (Throwing of any Substance or Object on an SCDC
Employee or other Government Employee, Contract Employee or Volunteer). A Code
1.04 violation is:
Communication, verbal or written, by an inmate to an
individual that he intends to injure that person or commit a violent or
unlawful act dangerous to human life, presently or in the future; or one who
commits a physical act of a threatening nature, and the probable result of such
threats or action is to place the individual in fear of bodily injury; or one
who causes evacuation of a building; or one who creates serious disruption or
alarm. Any unauthorized body contact of an employee or member of the public
which creates serious alarm, but does not result in bodily injury.
When
viewed in light of the DHO’s discretion, the Record sufficiently establishes
substantial evidence that the Appellant acted in a threatening manner.
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 7, 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)). See also Slezak v. S.C. Department of Corrections , 361 S.C. 327, 605 S.E.2d 506 (2004).
|
