ORDERS:
ORDER
Grievance No. KER 0125-01
STATEMENT OF CASE
This matter is before the Administrative Law Judge Division (“Division”) pursuant to an
appeal filed on May 11, 2001 by Malik Abdul Al-Shabazz (“Appellant”), an inmate incarcerated with
the South Carolina Department of Corrections (“Department”). On March 8, 2001 Appellant was
convicted of a violation of 2.05 or the “Use of Obscene, Vulgar or Profane Language or Gestures.”
He appealed the decision through the grievance process and the final agency decision was issued on
May 3, 2001. As a result of the conviction, Appellant lost thirty (30) days good time credit. The
parties filed briefs outlining their legal positions.
BACKGROUND
On February 23, 2001 Appellant wrote a memo addressed to “Lt. Jerngan”. The last
sentence reads “You remember what go’s around. Come’s around.” Further, Appellant stated in the
memo that “I don’t give a dam about you either. None of you punk acting staff.” Lt. Jernigan
considered the correspondence to consist of threats of physical harm. As a result of the memo, a
report was written up by Lt. Jernigan on February 27, 2001 and Appellant was charged with a
violation of 1.4 or “Threatening to inflict harm on an employee: Communication, verbal or written,
etc....” When served with the report and notice of a hearing on the charge, Appellant requested that
his accuser be present at the hearing and that he have a counsel substitute represent him at the
hearing. A hearing was held on March 8, 2001 with Capt. Murray acting as the designated hearing
officer (“DHO”).
At the hearing, Appellant stated that his intent when he wrote the memo was an attempt to
find out why he was being treated unfairly in his unit and to acknowledge his frustration because Lt.
Jernigan would not talk to him. He admitted writing the memo but stated that it was not written out
of disrespect to Lt. Jernigan nor was it threatening. After considering the evidence at the hearing, the
DHO reduced the charge to a violation of 2.05 or the “Use of Obscene, Vulgar or Profane Language
or Gestures.” The sanction was thirty (30) days loss of good time credit. Appellant appealed
through the grievance process and the final decision of the Department was to affirm the DHO.
ANALYSIS
The Division’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).
Subsequent to the Al-Shabazz decision, on September 5, 2001, the judges at the Division issued an
En Banc Order in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP
(September 5, 2001) which interpreted the breadth of its jurisdiction mandated by Al-Shabazz. The
McNeil decision holds that the Division’s appellate jurisdiction in inmate appeals is limited to two
types of cases: (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 the Department has
taken an inmate’s created liberty interest as punishment in a major disciplinary hearing.
In this case, Appellant lost 30 days of good time after he was convicted of a major disciplinary
infraction. I find that this tribunal has jurisdiction to hear Appellant’s appeal.
The statutory right to sentence-related credits is a protected liberty interest under the
Fourteenth Amendment. Al-Shabazz, 338 S.C. at 369-370, 527 S.E.2d at 750. An inmate facing
the loss of sentence related credits is entitled to minimal due process to ensure that the state-created
right is not arbitrarily abrogated. Id. While due process is “flexible and calls for such procedural
protections as the particular situation demands,” Stono River Envtl. Protection Ass’n v. S.C. Dept.
Of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 30, 341 (1991), certain elements must be
satisfied in order for procedural due process requirements to be met, 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. Al-Shabazz, 527 S.E.2d at 751, citing Wolff
v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
As in all cases subject to appellate review by the Division, the standard of 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 unless the agency’s determination is affected by error
of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole
record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1999); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d
at 756; Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Moreover, to afford “meaningful
judicial review,” the Administrative Law Judge must “adequately explain” his decision by
“documenting the findings of fact” and basing his decision on “reliable, probative, and substantial
evidence on the whole record.” Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756.
I find that Appellant was afforded all due process accorded to him pursuant to Al-Shabazz.
The Record indicates that Appellant was given written notice of a greater charge in excess of 24
hours prior to his hearing. The hearing was conducted by an impartial hearing officer. In addition,
although not constitutionally required, Appellant was afforded counsel substitute to assist him in his
defense. Further, Appellant was given the opportunity to offer evidence and present witnesses and
offer testimony. Appellant’s accuser was present at the hearing and testified that he took the memo
“very threatening.” The DHO prepared a written report detailing the evidence he relied upon and
the penalty assessed in finding Appellant guilty of the lesser imposed disciplinary infraction. Finally,
Appellant was permitted to appeal the DHO’s decision through the inmate grievance process.
Appellant alleges that it was a procedural error for the Department to amend the charge at the hearing
and find him guilty of a lesser included offense. He argues that (1) the DHO violated Department
procedures by conducting the hearing and finding him guilty of a lesser included charge, and (2) the
Department’s employees violated Department procedures by failing to formally serve him with forms
about the new charge.
Appellant must accept that every failure of the Department to follow its own policies and
procedures, whether deliberate or inadvertent, is not a violation of due process. Only if the
Department’s failure adversely affects an inmate’s life, liberty, or property right is an inmate’s right
of due process implicated. Appellant failed to offer any evidence or argument in his brief that the
Department’s failure to charge him with the lesser included offense prior to the hearing adversely
affected his liberty interests. The elements required to prove the lesser included offense would be
required to prove the greater charge. This court does not find that the decision of the Department
was clearly erroneous, arbitrary or capricious or an abuse of discretion, in view of the substantial
evidence on the whole record. Finally, this court cannot find any reason to warrant reversal of the
Department’s decision. It must be affirmed.
ORDER
Accordingly, it is
ORDERED that the appeal of Appellant is dismissed and the final decision of the Department
is affirmed.
AND IT IS SO ORDERED.
_________________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
April 29, 2003
Columbia, South Carolina |
