ORDERS:
Order
STATEMENT
OF CASE
This matter is before the Administrative Law Court (ALC)
pursuant to the appeal of Angelo McKelvie, an inmate incarcerated with the
Department of Corrections (Department). Appellant claims that 1) he received
less than “prevailing wages” while working in the private sector industry and
subsequently less than “prevailing wages” when officially hired by the private
sector business; 2) the Department failed to pay him overtime while he worked
in the private sector industry program; and 3) the Department failed to place
him on notice of his right to “prevailing wages.”
STANDARD
OF REVIEW
The
Court’s jurisdiction to hear this matter was originally 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 Supreme Court limited the ALC’s
jurisdiction in inmate appeals to state created liberty interests typically
involving: (1) cases in which an inmate contends that prison officials have
erroneously calculated his/her 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. Later,
the Court in Wicker v. South Carolina Dept. of Corrections, 360 S.C.
421, 602 S.E.2d 56 (2004), held that where “the state has created a statutory
right to the payment of a prevailing wage, it cannot thereafter deny that right
without affording due process of law” and therefore, the Department’s failure
to pay wages in accordance with the statutes is reviewable by the ALC. Id at 57.
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, 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.” In making that determination, the Court is not
required to examine the entire record, independently assess the credibility of
witnesses, or weigh the evidence. Id. Moreover, in Al-Shabazz, the Court underscored that since prison officials are in the best position to
decide inmate disciplinary matters, the Courts 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).
DISCUSSION
Timeliness
of Wage Claim
Appellant claims that
the Department failed to pay him “prevailing wages” while working in the
private sector industry and subsequently he was paid less than “prevailing
wages” when officially hired by the private sector business. S.C. Code Ann. §
24-3-430 (D) (Supp. 2005) provides that “[n]o inmate participating in the
[private industry] program may earn less than the prevailing wage for work of
similar nature in the private sector.” In Wicker v. South Carolina Dept. of
Corrections, 360 S.C. 421, 602 S.E.2d 56 (2004), the South Carolina Supreme
Court held that the Department cannot deny the payment of a prevailing wage
without affording due process of law.
The Department contends
that Appellant’s claim for “prevailing wages” is barred by the two-year statute
of limitations in S.C. Code Ann. § 15-78-100. Section 15-78-100 provides that
except as to persons under disability, claims for damages under the South
Carolina Tort Claims Act must be filed “within two years after the loss was or
should have been discovered.” However, cases brought before the ALC for
failure to pay wages in accordance with S.C. Code Ann § 24-3-430 (Supp. 2005)
are not brought pursuant to the Tort Claims Act. In fact, in Adkins v. South Carolina Dept. of Corrections, 360 S.C. 413, 602 S.E.2d 51 (2004), the Supreme
Court specifically held that the Department’s “failure to pay a certain wage
simply does not constitute a tort so as to be cognizable under the Tort Claims
Act. Id at 54. Therefore, the statute of limitations set forth in
Section 15-78-100 does not apply.
Nevertheless, in Al-Shabazz
v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the Supreme Court held that
an inmate may seek review of the Department's final decision before the ALC in
administrative matters under the APA. The Court further noted in making its
determination that the Department’s grievance procedures are in compliance with
the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. §§ 1997-1997j
(1994 & Supp.1999); see also 28 C.F.R. §§ 40.1 to 40.22 (1998) (standards
for inmate grievance procedures). The Department’s Inmate Grievance System
Policy/Procedure GA-01.12 § 13.1 provides that if an informal resolution of a
grievable matter is not possible, the grievant must submit a Form 10-5, Step 1
to an employee designated by the Warden within 15 days of the alleged
incident. The only exceptions to that requirement are grievances concerning
policies/procedures and “incident grievances, provided that the inmate can
show reasonable cause, i.e., inmate physically unable to initiate grievance due
to hospitalization, court appearance, etc.” GA-01.12 § 13.10. This case
does not involve an appeal challenging the Department’s policies or procedures.
Furthermore, the Appellant has not
set forth reasonable cause as to why his claim could not have been presented
within the time frame required by the Department’s policy. Therefore,
Appellant was required to file a grievance within 15 days of the Department’s
failure to pay him the wages owed.
In this case, the
record reflects that Appellant is seeking prevailing wages for all hours worked
beginning in August 1993. There is no indication or argument, whatsoever, that
he filed a grievance within 15 days of the alleged underpayment with the
Department of Corrections or that the Department’s Policy granted wider
latitude to file a grievance in 1994. The Appellant failed to file a grievance
as provided by GA-01.12, and this court has no authority to expand the time in
which the request for a hearing must be filed. See Mears v. Mears,
287 S.C. 168, 337 S.E.2d 206 (1985).
Moreover, Appellant’s
claim is barred under the principle of laches. “Laches is neglect for an
unreasonable and unexplained length of time, under circumstances affording
opportunity for diligence, to do what in law should have been done.” Hallums v. Hallums, 296 S.C. 195, 198, 371 S.E.2d 525, 527 (1988). Appellant
filed a grievance approximately 11 years after the disputed wages were paid to
him. The delay in filing his claims is unreasonable and obviously prejudices
the Department. See Brown v. Butler, 347 S.C. 259, 265, 554
S.E.2d 431, 434 (Ct. App. 2001).
Notice
Appellant
also asserts that the Department failed to place him on notice of the decisions
of Adkins, supra. and Wicker supra. In Adkins and Wicker the Court simply held that Section 24-3-430 required that
inmates be paid “prevailing wages” and that that the Department cannot deny
those wages without affording due process of law.[1] Prisoners, like other citizens,
are presumed to know the requirements of the law and act in conformity with
them. Goodwine v. Dorchester Dept. of Social Services, 336 S.C. 413, 519
S.E.2d 116 (S.C. App. 1999). Therefore, Appellant was charged with the
knowledge of the provisions in Section 24-3-430. It was not the Department’s
duty to notify him of the provisions of that law or any cases interpreting that
law.
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 28, 2006
Columbia, South Carolina
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