SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to Appellant's Notice of Appeal filed April 3, 2000. Appellant submitted a Step 1 Grievance Form regarding Grievance Number ACI-1078-99 on August 24, 1999. Appellant explained that he purchased a typewriter from the institution canteen and ordered a "legal character daisywheel" to use in preparing his documents for court. He indicated in his grievance that he was not allowed to take possession of the daisywheel when it arrived. Appellant received the decision of the Inmate Grievance Coordinator on September 14, 1999, and the decision of the Warden on September 23, 1999, denying him possession of the daisywheel. Appellant then submitted a Step 2 Grievance Form regarding ACI-1078-99 dated September 28, 1999, but received by the Grievance Office on September 29, 1999. The Inmate Grievance Coordinator returned Appellant's Step 2 Form stating it was not timely received by the Grievance Office.

On October 15, 1999, Appellant filed a Step 1 Grievance Form regarding Grievance Number ACI-1267-99. Appellant asserted that Respondent interfered with his right to maintain confidentiality in his legal pleadings, his right to access the courts, and his right to present properly prepared litigation to the courts. Appellant specifically mentioned an incident when a mailroom employee refused to let Appellant seal legal documents in her presence that he was sending to someone to properly prepare according to the rules of the court. He also mentioned Respondent's refusal to let him have "access to legal tools necessary to present litigation in proper form such as legal character daisywheels." Appellant received the decision of the Inmate Grievance Coordinator on November 4, 1999, and the decision of the Warden on November 23, 1999, indicating the mailroom employee complied with Respondent's policy. The Inmate Grievance Coordinator and the Warden refused to address the other issues raised in the Step 1 Form, stating only one grievance should be addressed on each grievance form. Appellant thereafter submitted a Step 2 Grievance Form regarding ACI-1267-99 dated November 27, 1999, wherein Appellant provided:

I ask merely the right of access to implements necessary to comply with the rules of the Courts, and access to the implements necessary to be in proper form and compliance with the requirements of the various Courts.

. . . .

At the present time, I must send my pleadings out to a family member to have the necessary sheets of colored 8 ½ x 11 inch paper added as cover sheets, and the necessary bindings (tape) attached. This causes me unnecessary expense in postage, as well as unnecessary delay in presenting my pleadings before the Courts in a timely manner.

In addition, because my outgoing pleadings are not addressed directly to the court I am forced to place my confidential papers in an unsealed envelope.

Appellant received Respondent's final decision regarding this grievance on January 20, 2000, stating the mailroom staff at Appellant's correctional institution complied with Respondent's policy regarding inmate correspondence.

Appellant then filed a Notice of Appeal on April 3, 2000. Appellant is appealing Respondent's final decision regarding Appellant's access to "the use and possession of the proper tools and implements an inmate (appellant) needs to attack his sentence, in proper form and compliance, with the procedural rules of the South Carolina Supreme Court and Court of Appeals." When the office of the undersigned contacted Appellant regarding the two separate grievance numbers contained in this file, Appellant asserted that Respondent consolidated both grievances into one. He also indicated he intended to file the Notice of Appeal Form referencing both grievances.

It is unclear from the record whether Respondent and Appellant actually intended to consolidate these two grievances. Because of the jurisdictional issues addressed in this order, however, the disposition of this case is the same whether the grievances were consolidated or not.

Respondent filed a Motion to Dismiss and Request for Stay on June 2, 2000. Respondent asserts the Division does not have jurisdiction to hear this appeal because Appellant is appealing a final decision rendered prior to February 14, 2000, and there is no evidence Appellant had a case pending in circuit court on February 14, 2000.

The Division only has jurisdiction over inmate appeals as a result of the South Carolina Supreme Court's opinion in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). The Division, therefore, only has jurisdiction to hear non-collateral or administrative matters in post-conviction relief actions filed, in final decisions rendered by Respondent after February 14, 2000, and in cases pending in a circuit court or the South Carolina Supreme Court on February 14, 2000, where the inmate has not had the opportunity to obtain APA review.

On June 14, 2000, Appellant filed a response to Respondent's motion, asserting Respondent's Office of General Counsel issued a memorandum "informing inmates that no appeals, etc. filed would be acted on by the D.O.C. until a final ruling on Al-Shabazz." Appellant attached to his response Respondent's memorandum dated December 8, 1999, wherein Respondent provided:

This office has received numerous appeals, lawsuits, questions, etc. regarding the ruling in the Al-Shabazz v. State case. Please be advised that SCDC filed a petition for rehearing with the South Carolina Supreme Court, and that petition was granted. Therefore, the Al-Shabazz ruling has not taken effect yet. As such, no appeals, lawsuits, petitions, etc. filed in reliance on Al-Shabazz will be acted on by SCDC until a final ruling is rendered in this case.

While Appellant claims Respondent's memo indicated Respondent would not act on any appeals until the Supreme Court rendered a final decision in Al-Shabazz, Respondent's memo instead indicated Respondent would not act on any appeals "filed in reliance on Al-Shabazz" until the Supreme Court made a final ruling on the case. Respondent's memo could have better informed the inmates that, because "the Al-Shabazz ruling has not taken effect yet," the inmates needed to continue appealing cases as they normally would, i.e., through circuit court. Although the memo may have been misleading, it did not inform the inmates that they could not file a case in circuit court pending the final Al-Shabazz decision. Thus, I find no merit to Appellant's argument that he relied on Respondent's memo in failing to file an appeal in circuit court.

Appellant further asserted in his response that when he received the final decision on his Step 2 Grievance Form he "was informed by the Institutional Grievance Coordinator that no appeal could be taken until after [the final ruling on Al-Shabazz]." Appellant, however, provided no evidence that the Grievance Coordinator told him not to file an appeal in circuit court.

Regarding Respondent's argument that the Division lacks jurisdiction to hear this appeal, Respondent rendered a final decision in this case on January 14, 2000, and Appellant received the decision on January 20, 2000. Appellant provided no evidence he had a case pending in circuit court or the South Carolina Supreme Court on February 14, 2000. In fact, Appellant admits he did not file an appeal of his case until the Supreme Court issued its final decision in Al-Shabazz. The Division, therefore, lacks jurisdiction in this case. See Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000).

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is granted and this appeal is dismissed with prejudice. Having dismissed Appellant's appeal, all other pending motions are resolved.

AND IT IS SO ORDERED.

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MARVIN F. KITTRELL

Chief Administrative Law Judge

October 20, 2000

Columbia, South Carolina

You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition for judicial review in circuit court and serving such petition on opposing parties within thirty (30) days after receipt of this order. S.C. Code Ann. § 1-23-610 (Supp. 1999). The petition may be filed in any circuit court as long as the chosen forum is neither arbitrary nor unreasonable, and provided that no statute controls venue in a particular type of case. The review of the administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is: (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.