ORDERS:
ORDER
Grievance No. TYRCI-385-01
STATEMENT OF CASE
This matter is before the Administrative Law Judge Division (“Division”) pursuant to the appeal of Steve Upton (“Appellant”), an inmate incarcerated with the South Carolina Department of Corrections (“Department”). On May 31, 2001 Appellant was convicted of violating SCDC Disciplinary Code 1.10, “Use or Possession of Narcotics, Marijuana or Unauthorized Prescription Drugs” after pleading not guilty to the charge. As a result of his conviction, Appellant lost 180 days of “good-time” credit. Appellant filed a grievance with the Department and the Department issued its final decision on July 12, 2001, affirming the finding of the designated hearing officer (“DHO”), Capt. Gooch. On August 10, 2001, Appellant filed this appeal with the Division.
BACKGROUND
Appellant has been incarcerated with the Department for armed robbery since May 23, 1994. On May 24, 2001 Appellant was located at the Tyger River Correctional Institution-Upper Yard at Enoree, South Carolina. At approximately 1:00 p.m. on that date, Appellant was given the Roche On-Trak teststik (uranalysis test) for THC (marijuana) in the visitation room at the institution as part of a random testing. He tested positive for marijuana use. He was then given a confirmation test (a test stick) using the American Bio and, he tested positive again. The tests were conducted by Designated Testing Officer (“DTO”) Cpl. A. Clayton. Appellant’s urine sample was in excess of 30 ml. Also present during the testing was Sgt. Keatley. After the testing was concluded, Appellant was notified that he was being charged with a violation of SCDC 1.10. The drug test form was completed and was acknowledged by Appellant.
Appellant was served with the charge on May 25, 2001. At that time he requested that his accuser be present at the hearing and he requested that a counsel substitute (“CS”) be appointed to assist him in preparation for and at the hearing. The hearing was held on May 31, 2001. Sgt. Keatley, the charging officer who made the violation report was present, as was Appellant and his CS. Appellant plead not guilty, stating that the procedures were not followed correctly in the following manner: (1) the DTO did not change his gloves before testing Appellant; (2) Appellant was not “shaken down” before he was tested by the DTP; and (3) Appellant was not told to “wash and rinse and thoroughly dry his hands” before the testing was done. Appellant argued in mitigation that he had been incarcerated for seven years and had never before had a charge against him.
Sgt. Keatley responded to questions at the hearing from the DHO about Appellant’s concerns, stating that the gloves are worn by the officer s for their protection and they do not have to be changed after each test; he stated that they might be changed if there is a tear in them. Further, he stated that inmates are not “shaken down”, but they are taken back into the bathroom by the DTO and they “wash your hands, you have to pull your shirt up, you know make sure you don’t have anything concealed, and you give 30 ml sample.” He stated that the DTO collects the sample, brings it out to the institution’s officer who stays with the inmate during the placement of the sticks into the urine sample to ensure they “don’t get mixed up, we verify if it’s a positvie, and do the initial write ups.” All the remainder of the procedure is done by the DTO. He did acknowledge that inmates are required to wash their hands in the process.
The incident report as well as the testing report and the charging report were made a part of the record at the hearing. At the conclusion of the hearing, Appellant was found guilty and, based upon the Department’s zero tolerance for drugs, was sanctioned 180 days loss of good time credit.
Also, he was collaterally assessed an additional 20 days loss of good time for failure to remain disciplinary free during the month of May 2001. Appellant thereafter filed a grievance which was denied. This appeal followed.
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). On September 5, 2001, the Division issued an En Banc Order in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), interpreting the breadth of its jurisdiction pursuant to Al-Shabazz. The 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 has lost 180 days of good time as a result of the alleged prison 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).
Beyond these procedural requirements, the United States Supreme Court has held that the revocation of an inmate’s good-time credits does not comport with due process unless “there [is] some evidence from which the conclusion of the [prison official] could be deduced.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). Thus, if the Department affords the inmate
a Wolff-type hearing and has at least some evidence in the record to support its decision, the Department’s revocation of an inmate’s good-time credits satisfies the requirements of due process.
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. The DHO reviews all the evidence presented during the hearing and must decide whether the majority of the evidence indicates guilt or innocence. An Administrative Law Judge may not substitute his judgment for that of an agency (here the Department) 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). “Substantial evidence” is evidence which, considering the record as a whole, would allow a reasonable mind to reach the conclusion that the administrative agency reached to justify its action. Hendley v. South Carolina State Budget and Control Board, 325 S. C. 413, 481 S. E. 2d 159 (S. C. App. 1996). 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.
Appellant was given written notice of the charges in excess of twenty four hours prior to his hearing and there is nothing to suggest that the DHO was not impartial. After reviewing the transcript of the hearing this court believes she was. 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. The accuser (the charging officer) was present at the hearing, testified and was subject to cross-examination. Further, the DHO prepared a written report detailing the evidence she relied upon in finding Appellant guilty of the charge and for assessing the penalty. Finally, Appellant was permitted to appeal the DHO’s decision.
Notwithstanding the above, Appellant argues that the state legislature in enacting S. C. Code Ann. § 44-53-370 (Supp. 2002) limited the sentence to be imposed upon one found guilty of simple possession of marijuana to thirty (30) days confinement. He posits that simple possession equates to the possession of less than 28 grams of marijuana. Appellant argues that since he had only a trace amount of marijuana in his blood (much less than 28 grams) when tested, it is illegal for the Department to sanction him in excess of 30 days which is the limit in the judicial system for simple possession of marijuana. He argues that each sanction (executive branch and judicial branch) involves the taking of a liberty interest or the loss of freedom of the accused. Appellant fails to recognize that the South Carolina legislature has given sole authority to the Director of the Department to issue and promulgate its own policies and procedures, including sanctions, in dealing with the inmate population. If the legislature desires to equate sanctions for marijuana possession for its citizens (judicial branch) to marijuana possession or usage by its inmates (executive branch), it must and surely will speak to that issue and promulgate written policies for the Department which it wishes it to use and adhere to.
Appellant further argues that he was denied the opportunity to cross-examine the DTO at the hearing. Appellant failed to raise that issue at the hearing. Further, any cross-examination of the DTO would be limited and Appellant was able to ask questions of Sgt. Keatley who made the charge and participated with the DTO in testing Appellant.
Appellant also argues that he was subjected to an ex post facto violation. He states that “prior to the promulgation of the current Disciplinary Policy by SCDC, the amount of good time forfeited for such a violation was purely discretionary on the part of the DHO and could range form 0 days up.” Appellant was tested for marijuana use on May 24, 2001. The policy which was used by the Department to charge Appellant in this case was GA-03.03, INMATE DRUG TESTING/SCREEING PROGRAM, with an issue date of December 1, 1998. This policy was in effect when Appellant was charged.
I find that Appellant was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Appellant was given written notice of the charges in excess of 24 hours prior to his hearing which was conducted by an impartial hearing officer, Appellant was afforded counsel substitute to assist him in his defense, and Appellant was given the opportunity to offer evidence and present witnesses. Appellant’s accuser, Sgt. Keatley, was present at hearing and testified concerning the test and answered the three queries of Appellant concerning procedures to be followed in a random testing for drugs. The DHO prepared a written report detailing the evidence she relied upon and the penalty assessed in finding Appellant guilty of the disciplinary infraction. Finally, Appellant was permitted to appeal the DHO’s decision through the inmate grievance process. Appellant’s other arguments were not raised at the hearing. Moreover, 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.
Not only must limited due process requirements be met, the Department must show that there
was substantial evidence to support its decision. That burden was met in this case. The two tests taken of Appellant’s urine show that he tested positive for marijuana on May 24, 2001. A reviewing court will not disturb findings of an administrative agency if its finding are supported by substantial evidence on the record as a whole. Pearson v. JPS Converter & Industry Corporation, 327 S. E. 393, 489 S. E. 2d 219 (S. C. App. 1997). “Substantial evidence” is that evidence which, considering the record as a whole, would allow a reasonable mind to reach the conclusion that the administrative agency reached to justify its action. Hendley v. South Carolina State Budget and Control Board, 325 S. E. 413, 481 S. E. 2d 159 (S. C. App. 1996). I find that there is substantial evidence to affirm the decision of the Department
.
ORDER
Accordingly, it is hereby
ORDERED that 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
This review “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence,” Hill, 472 U.S. at 455; rather, this standard only requires this tribunal to determine whether “there is any evidence in the record that could support the conclusion reached by the [prison official].” Id. at 455-56.
Section 4.c., titled ‘DRUG TESTING OFFICERS’ RESPONSIBILITIES under GA-03.03 provides that the DTO’s “will not normally be accusers or witnesses for the disciplinary hearings.”
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