ORDERS:
Order
STATEMENT
OF CASE
This matter is before the Administrative Law Court (ALC or Court)
pursuant to the appeal of Michael Lesesne, an inmate incarcerated with the
Department of Corrections (Department or DOC). Lesesne was convicted of
violating SCDC Disciplinary Code § 2.09 (Sexual Misconduct). As a result of
his conviction, Lesesne lost ninety (90) days of “good-time” credit. He filed
a grievance with the Department and the Department issued a final decision on December
20, 2005. Following the Department’s denial of that grievance, Lesesne filed
this appeal with the ALC.
BACKGROUND
On July
31, 2005, Lieutenant Epps was on X-Wing locking the food flaps when she
approached cell X-6, housing Appellant Lesesne. Lieutenant Epps witnessed
Appellant sitting on the toilet masturbating. As a result, Appellant was
charged with violating SCDC Disciplinary Code § 2.09 (Sexual Misconduct)
On August
15, 2005, a Major Disciplinary Hearing was held before a DOC Disciplinary Hearing
Officer (DHO). At Appellant’s request, he was provided a counsel substitute.
Also, Appellant requested that his accuser be present at the hearing, therefore
she was present by speakerphone. During the hearing, the DHO read a narrative
of the Incident Report into the Record and received testimony from Lieutenant
Epps and Appellant. At the conclusion of the hearing, the DHO found the
Appellant guilty of the charge and sanctioned him to the loss of ninety (90)
days good time. After the hearing, the DHO completed a Major Disciplinary
Report and Hearing Record which documented the DHO’s findings.
Appellant
Lesesne 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
Due Process Rights were violated when the DHO refused to hear witness
testimony.
2. There
was not substantial evidence to find Appellant guilty of the offense.
3. The sanctions imposed by the DHO are not consistent with SCDC Policy.
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.
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 Lesesne alleges that the Department
should not have revoked his ninety (90) 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
The Appellant’s due
process rights in this proceeding are summarized in Al-Shabazz, supra.
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. 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 detailing the
evidence he relied upon and the penalty assessed in finding the Appellant
guilty of the disciplinary infraction. The Appellant was also permitted to
appeal the DHO’s decision through the inmate grievance process. Finally, the
Appellant did not establish that he was denied the right to present witnesses.
More specifically,
Appellant argues that his due process rights were violated because he was not
allowed to call any witnesses at his hearing. SCDC policy OP-22.14 (3)(a)(2)(b)
provides that:
At the time an inmate is served with notice of disciplinary
charges, the inmate will be informed of the right to present documentary
evidence and to request witnesses. Should the inmate request witnesses, s/he
will be required to submit a list of names of the witnesses s/he desires to be
present at the hearing to his/her counsel substitute (or, if no counsel
substitute has been requested, to the DHO) anytime prior to the hearing. This
information will then be given to the DHO. The inmate or counsel substitute may
inform the DHO at any time prior to the hearing of any changes in the list of
witnesses requested.
The Appellant was appointed a
counsel substitute at his request. However, the Appellant failed to follow the
Department's procedure in requesting the attendance of any witnesses. “The
discretion of prison officials in such matters is undeniably broad, but it is
still subject to judicial review for abuse.” Smith v. Massachusetts Dept. of
Corrections, 936 F.2d 1390, 1399 (1st Cir.1991). Therefore, in Smith the
Court held that:
an inmate claiming a violation of procedural due process in a
disciplinary hearing must allege that his requests to call witnesses or submit
written statements "were denied for reasons not having to do with
institutional security or correctional goals, and that the prison
officials" who denied such requests "clearly abused their
considerable discretion in such matters." Such "allegations must be
backed up with enough supportive facts to outline the elements of the
[inmate’s] claim."
Smith, at 1399 (quoting in
part, Hurney v. Carver, 602 F.2d 993 (1st Cir.1979)). The
Department can refute an inmates allegation explaining, in a limited manner,
“the reason why witnesses were not allowed to testify . . . by making the
explanation a part of the ‘administrative record’ . . . or they may choose to
explain it ‘later.’” Ponte v. Real, 471 U.S. 491, 105 S.Ct. 2192, 85
L.Ed.2d 553 (1985). Here, the Appellant was given the opportunity to offer
evidence, call witnesses, and confront his accuser. He, nevertheless, choose
not to follow the proper procedure. Therefore, the evidence establishes that
the Department actions were not arbitrary and therefore the Appellant failed to
establish the Department abused its discretion. McGuinness v. Dubois, 75
F.3d 794 (1st Cir. 1996). Accordingly, I do not find that the DHO's
failure to call Appellant’s witness(es) was an abuse of discretion. See Smith
v. Massachusetts Dept. of Corrections, 936 F.2d 1390 (1st Cir.1991).
Substantial
Evidence
Appellant claims that
the evidence presented was not sufficient to support a conviction in this
case. He furthermore alleges that the DHO erroneously considered his prior convictions
in making his determination. Nevertheless,
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. Thus, if
reasonable minds could arrive at the DHO’s conclusion based upon the evidence
presented, the Department’s decision must be upheld regardless of the
derivation of the evidence. See also Smith v. Samu, 54
F.3d 788 (10th Cir. 1995).
I find that there
is substantial evidence to support the Appellant's conviction of violating SCDC
Disciplinary Code § 2.09, Sexual Misconduct. A Code 2.09 violation is:
(1) Engaging in sexual acts or intimate physical contact of a
sexual nature alone or with others; or (2) indecent and/or unnecessary exposure
of private body parts; or (3) soliciting sexual acts from others. A conviction
for this charge will result n a loss of the inmate’s visitation privileges for
one (1) year regardless of where the infraction occurred.
When
viewed in light of the DHO’s discretion, the Record sufficiently establishes
substantial evidence that the Appellant acted in a threatening manner. Accordingly,
I find that there is substantial evidence to support the Appellant's conviction
of violating SCDC Disciplinary Code § 2.09 (Sexual Misconduct).
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)). See also Slezak v. S.C. Department of Corrections , 361 S.C. 327, 605 S.E.2d 506 (2004).
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