SC Administrative Law Court Decisions

Derrick D. L. Brunson, #219930 (Brunson) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Brunson of threatening an employee. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Brunson was punished by the loss of good time credits, a loss which impacts a created liberty interest. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000); McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). After a review of the record and the arguments, the DOC decision is VACATED.

In this review, the Administrative Law Judge (ALJ) acts "in an appellate capacity" and is "restricted to reviewing the decision below." Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 754 (2000). The review must apply the criteria of S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2001). See S.C. Code Ann. § 1-23-380(B) (Supp. 2001) (where an ALJ is directed to conduct a review "in the same manner prescribed in [§ 1-23-380](A)."). Section 1-23-380(A)(6) establishes the following:

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In this case, Brunson argues that the DOC decision is made upon unlawful procedure.

Brunson argues the hearing was carried out under unlawful procedure since procedural due process was not followed. Due process for an inmate subjected to the loss of good time credits requires the following procedures:

(1) that advance written notice of the charge be given to the inmate at least twenty-four hours before the hearing; (2) that factfinders must prepare a written statement of the evidence relied on and reasons for the disciplinary action; (3) that the inmate should be allowed to call witnesses and present documentary evidence, provided there is no undue hazard to institutional safety or correctional goals; (4) that counsel substitute (a fellow inmate or a prison employee) should be allowed to help illiterate inmates or in complex cases an inmate cannot handle alone; and (5) that the persons hearing the matter, who may be prison officials or employees, must be impartial. Wolff, 418 U.S. 563-72, 94 S.Ct. 2978-82, 41 L.Ed.2d at 954-60.

Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 751 (2000)

In the instant case Brunson argues that he was not allowed to call witnesses and present documentary evidence since he was excluded from the hearing even thought the hearing officer was read a statement written by the inmate in which the inmate requested both the right to be present and the right to call witnesses.

Inmate Not Attending Disciplinary Hearing

The rights granted in Wolff v. McDonnell, 418 U.S. 539 (1974) do not expressly state that an inmate has a right to be present during a disciplinary hearing. However, as a part of the inmate's due process right to call witnesses and present evidence, courts have generally held that an inmate has a right to be present at his own disciplinary hearing but that right is conditioned on "maintaining institutional safety and other correctional goals." See Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir.1989) ("[T]he question presented in this case is not whether a prisoner must be given the opportunity to attend the hearing, but rather whether a prisoner's right to attend the hearing is "absolute" in the sense that the hearing cannot under any circumstances be conducted without him. We hold that a prisoner does not have such a right."); Battle v. Barton, 970 F.2d 779, 782 (11th Cir. 1992) ("Notwithstanding the fact that an inmate has a due process right to be present at his own prison disciplinary hearing, the Supreme Court has made clear that the rights accorded inmates at disciplinary hearings are not absolute, and are limited by 'the competing concerns of maintaining institutional safety and other correctional goals.' Smith v. Massachusetts Dept. of Corrections, 936 F.2d 1390, 1399 (1st Cir.1991)."); Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 2196, 85 L.Ed.2d 553 (1985) (due process is met "so long as the reasons [for depriving an inmate of his rights] are logically related to 'institutional safety or correctional goals'....".).

Further, an inmate may waive a procedural due process right if the inmate makes a "knowing, voluntary and intelligent decision" to waive the right under review. See e.g. People v. Corley, 67 N.Y.2d 105, 110, 500 N.Y.S.2d 633, 491 N.E.2d 1090 (1986) (inmate waiving right to attend hearing).

Thus, Brunson could properly be denied being present at the hearing if the denial was "logically related to 'institutional safety or correctional goals'" or his decision to waive attendance was the result of a "knowing, voluntary and intelligent decision" to waive.

Based on the Record on Appeal, Brunson did not attend the hearing since the hearing officer stated that Brunson "chose not to attend." That conclusion is diametrically opposed to the statement read at the hearing. In that statement Brunson explains he is not waiving any rights and he wishes to be present at the hearing. Clearly, a statement that the inmate "chose not to attend" does not amount to a "knowing, voluntary and intelligent decision" to waive such aright in light of the plain written statement of a desire to attend.

Inmate's Right to Call Witnesses & Present Evidence.

It is well established that due process requires that an inmate in a disciplinary proceeding be allowed to call exculpatory witnesses and present documentary evidence in his defense. See Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996) (due process violation when inmate denied opportunity to present exculpatory evidence directly undercutting the reliability of the evidence relied upon by the finder of fact); Moran v. Farrier, 924 F.2d 134, 137 (8th Cir. 1991) (due process violation when prison officials failed to call witnesses requested by inmate when decision based upon incomplete record).

However, it is equally well established that (as is often the case in a prison setting dealing with inmate due process rights) the right of the inmate to call witnesses may be limited. For example, denial of the right to call a witness is not a due process violation if allowing the witness to testify would be unduly hazardous to institutional safety or correctional goals. Wolff v. McDonnell, 418 U.S. 539, 566 (1974).

In addition, while not expressly stated, the Supreme Court has intimated that a prisoner's request for a witness can be denied on the basis of irrelevance or lack of necessity. Ponte v. Real, 471 U.S. 491 (1985). But, in all events, the burden is not upon the inmate to prove that the DOC official was arbitrary and capricious in denying the request, but instead the duty is upon the official to prove the rationality of the position taken. See id., 471 U.S. at 499, 105 S.Ct. at 2197.

The burden is meet when prison officials provide an explanation of their refusal to allow an inmate to call a witness at a disciplinary hearing with that explanation made either on the record during the hearing or in court if the denial is subsequently challenged. See Ponte v. Real, 471 U.S. 491, 497 (1985) ("they may do so either by making the explanation a part of the 'administrative record' in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a 'liberty' interest is challenged because of that claimed defect in the hearing"); Turner v. Caspari, 38 F.3d 388, 390 (8th Cir. 1994) (no due process violation where reasons for denial of witnesses given at trial). DOC has not met its burden in this case.

Here, the transcript reveals that the hearing officer gave no rational explanation for the exclusion of Brunson or of other known witnesses. Further, DOC's brief gives no rationale for excluding Brunson or the witnesses. Accordingly, Brunson did not receive the benefit of a properly conducted hearing.

The guilty verdict entered by DOC against Derrick D. L. Brunson, #219930 is VACATED with DOC (if it chooses to do so) permitted to retry Brunson in a manner consistent with procedural due process.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: January 9, 2003

Columbia, South Carolina