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SC Administrative Law Court Decisions

Robert I. Cheek, #233983 vs. SCDOC

South Carolina Department of Corrections

Robert I. Cheek, #233983

South Carolina Department of Corrections




This matter is before the Administrative Law Judge Division ("Division") pursuant to Appellant's Notice of Appeal filed April 7, 2000. Appellant attached a letter dated March 24, 2000, and a Request to Staff Member dated March 20, 2000, to his Notice of Appeal. Appellant is appealing the letter, written by Respondent's Deputy General Counsel, wherein the counsel responded to Appellant's Request to Staff Member.

In the Request to Staff Member, Appellant asserted he was convicted on June 16, 1997, of assaulting a staff member, refusing to obey a direct order, engaging in a disturbance, and damaging property. He further asserted he filed a Step 1 Inmate Grievance Form appealing his disciplinary convictions but never received a decision from Respondent. Appellant requested an exception for cause under "current Grievance Policy GA-01.12 (OP) item 14(F)" so that he may exhaust his administrative remedies and seek APA review.

In response to the Request to Staff Member, Respondent's Deputy General Counsel provided, "According to the Al-Shabazz decision, only those decisions made after the date of the opinion, February 14, 2000, are eligible for review under the APA. Because your decision was received in 1997, it is not eligible for APA appeal." Appellant then filed his Notice of Appeal, citing this letter as Respondent's final decision.

Respondent filed a Motion to Dismiss on August 28, 2000, asserting the Division lacks jurisdiction to hear this appeal because Appellant failed to exhaust his administrative remedies.

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.

The Division could have jurisdiction over this particular case only if Appellant had a case pending in circuit court or in the South Carolina Supreme Court on February 14, 2000. Appellant indicated he filed a Step 1 Inmate Grievance Form but, because he never received a decision, he never filed anything else with Respondent or in any court. The Division, therefore, lacks jurisdiction in this case.

Although I agree with Respondent that the Division does not have jurisdiction here, it is not because Appellant failed to exhaust his administrative remedies. Appellant's case instead fails to fall into any of the categories of the Division's jurisdiction established by the Supreme Court in Al-Shabazz.

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is granted but for a different reason than asserted by Respondent in its motion.

IT IS FURTHER ORDERED that Appellant's case is dismissed with prejudice.




Chief Administrative Law Judge

September 26, 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.

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