ORDERS:
ORDER GRANTING MOTION TO DISMISS
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.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
September 26, 2000
Columbia, South Carolina
APPEAL RIGHTS
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. |