SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division ("Division") pursuant to the Notice of Appeal filed by Keith McQueen, an inmate incarcerated by the Department of Corrections ("Department") since June 24, 1998. On September 30, 1999, Inmate McQueen was convicted of Possession of Contraband, Department Disciplinary Code 2.04, after Inmate McQueen was observed placing an object, which was later determined to be a disposable camera, behind a tree. On October 5, 1999, Inmate McQueen filed a grievance with the Department. He received the Department's final decision denying his grievance on December 10, 1999. At some time prior to February 14, 2000, Inmate McQueen attempted to file an action seeking review of the Department's final decision in the Court of Common Pleas for Richland County. ⁽¹⁾ On March 17, 2000, Inmate McQueen filed this appeal with the Division.

STANDARD OF REVIEW

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). In Al-Shabazz, the Supreme Court created a new avenue by which inmates could seek review of final decisions of the Department of Corrections in "non-collateral" matters, i.e., matters in which an inmate does not challenge the validity of a conviction or sentence, by appealing those decisions to the Division and ultimately to the circuit court pursuant to the Administrative Procedures Act. 338 S.C. at 373, 376, 527 S.E.2d at 752, 754. In its appellate capacity, the Division is primarily concerned with ensuring that the inmates receive all procedural process they are due.

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. 2000); 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.

FACTS

On September 25, 1999, Department employee Shanda Scantland observed a flash of light coming from the picnic area of Walden Correctional Institution ("WCI") where a number of inmates, including Inmate McQueen, were gathered. Officer Scantland instructed Inmate McQueen to come to her. Inmate McQueen complied but stopped briefly to lay an object behind a tree. When Officer Scantland looked behind the tree, she found a Kodak disposable camera. Officer Scantland asked Inmate McQueen if the camera had been in his possession. Inmate McQueen denied that the camera was his but admitted that he had taken the picture of another inmate at that inmate's request. As a result of the incident, Officer Scantland charged Inmate McQueen with Possession of Contraband. On September 28, 1999, Inmate McQueen received written notification of Officer Scantland's charges via a Major Disciplinary Report and Hearing Record ("Record").

On September 30, 1999, a Disciplinary Hearing Officer ("DHO") held a Major Disciplinary Hearing regarding Inmate McQueen's charge. In that hearing, the DHO stated that Inmate McQueen had waived his right to counsel substitute. Inmate McQueen and Officer Scantland testified at the hearing. At the conclusion of the hearing, the DHO informed Inmate McQueen that he had been found guilty of Disciplinary Code 2.4, Possession of Contraband. In addition, the DHO informed Inmate McQueen that he would lose only 45 days of canteen privileges as a result of his conviction, in part because he had served five days in Pre-Hearing Detention ("PHD"). The DHO stated he had relied upon the narrative and testimony of Officer Scantland and Inmate McQueen's admission that he had taken a picture with the camera.

On October 5, 1999, Inmate McQueen filed a grievance, alleging that he had been denied counsel substitute after his assigned counsel substitute failed to get in touch with him prior to his hearing. Inmate McQueen further alleged that the DHO had taken advantage of him by purporting to help him during the hearing. After the warden denied his grievance, Inmate McQueen appealed to the Department, alleging that he had not waived counsel substitute and instead was wrongfully denied counsel substitute. The Department denied his grievance on December 1, 1999, finding that there was substantial evidence to support his conviction. This appeal followed.

The Major Disciplinary Report and Hearing Record is a quintuplicate form used to document the several phases of a major disciplinary hearing. An inmate receives his first copy of the form at the time he receives notification of his charges and selects his "Inmate Waivers." The inmate completes the Inmate Waiver section of the Record by checking the box next to the particular waiver the inmate desires. On Inmate McQueen's copy of that Record, only the boxes next to "I do want my accuser present at the hearing" and "I want a counsel substitute" are checked. On the Department's copy of the Record, however, the box next to "I do not want a counsel substitute" is also checked. The only initials acknowledging the change are that of the DHO. In addition, the Inmate Waiver section contains a notation made by the DHO that reads "agrees to waive." Finally, an additional notation made by the DHO states that counsel substitute was not present because Inmate McQueen waived counsel substitute.

DISCUSSION

The Fourteenth Amendment guarantee of procedural due process only applies to the deprivation of a life, liberty, or property interest. Board of Regents of State College v. Roth, 408 U.S. 564, 569 (1972). The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Wolff v. McDonnell, 418 U.S. 539 (1974); Al-Shabazz, 338 S.C. at 369-70, 527 S.E.2d at 750. An inmate is entitled to minimal due process before any such sentence-related credits may be taken away. Al-Shabazz, 338 S.C. at 370, 527 S.E.2d at 750. 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. Dep't of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 341 (1991), certain elements must be satisfied in order for procedural due process requirements to be met, including adequate 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, 338 S.C. at 371, 527 S.E.2d at 751, citing Wolff, 418 U.S. at 563-72.

No liberty interest is implicated, however, when an inmate is faced with lesser penalties such as the loss of television, canteen, or telephone privileges. Al-Shabazz, 338 S.C. at 372 n.8, 527 S.E.2d at 751 n.8. An inmate facing a disciplinary proceeding in which he loses only television, canteen, or telephone privileges is not entitled to an Al-Shabazz-type hearing. See Al-Shabazz, 338 S.C. at 372, 527 S.E.2d at 751, citing Wolff, 418 U.S. at 571 ("We do not suggest, however, that the procedures required by today's decision for the deprivation of good time credits would also be required for the imposition of lesser penalties."). Moreover, an inmate has no liberty interest in sentence-related credits that have not yet been earned. See Luken v. Scott, 71 F.3d 192 (5^th Cir. 1995) (mere opportunity to earn good-time credits does not constitute a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause), citing Sandin v. Conner, 515 U.S. 472 (1995) (where state's action does not "inevitably affect the duration of [the inmate's] sentence," no constitutionally cognizable liberty interest exists).

I find that Inmate McQueen has no liberty interest in either canteen privileges or good time credit he failed to earn as a result of his rule violation in September 1999. As such, Inmate McQueen is not entitled to an Al-Shabazz-type hearing, in which he is represented by counsel substitute, if necessary, and in which he has the opportunity to present and cross-examine witnesses. Because Inmate McQueen was not entitled to any hearing regarding a rules violation resulting in the loss of canteen privileges and the ability to earn good time credit, the Major Disciplinary Hearing provided by the Department was more than sufficient, even if there is some question regarding whether Inmate McQueen actually waived his right to counsel substitute. That the Department routinely affords inmates charged with rules violations and other minor infractions some process does not indicate that any process is required, much less the process described in Al-Shabazz when a life, liberty, or property interest is at stake. Accordingly, the Department's final decision is affirmed.

ORDER

IT IS THEREFORE ORDERED that the Appellant's appeal is dismissed and the Final Decision of the Department is hereby affirmed.

AND IT IS SO ORDERED.

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MARVIN F. KITTRELL

Chief Administrative Law Judge

May 22, 2001