ORDERS:
ORDER
I. STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Harrison Moore, an inmate
incarcerated with the Department of Corrections ("Department") since 1980. On February 17, 2000, Inmate Moore was convicted of
Fighting Without A Weapon after he was observed exchanging blows with another inmate on February 13, 2000. As a result of his
conviction, Inmate Moore received canteen and telephone restrictions for 45 days. Inmate Moore filed a grievance with the
Department on February 18, 2000, and received a final decision from the Department on March 28, 2000. On April 21, 2000, Inmate
Moore filed this appeal with the Division. On June 15, 2000, Inmate Moore filed a Motion to Dismiss pursuant to Temporary Rule
65, ALJDRP.
II. BACKGROUND
On February 13, 2000, a Department corrections officer, Rickina Bannerman, observed Inmate Moore grab another inmate, James
Wesley, and place him in a headlock. Officer Bannerman ordered the two to stop fighting, but both inmates refused. Blows were
exchanged between the inmates before the corrections officers were able to separate them. Immediately after the incident, Inmate
Moore was placed in Pre-Hearing Detention. In addition, Officer Bannerman completed a Disciplinary Offense Report, charging
Inmate Moore with Fighting Without A Weapon and Refusing to Obey Orders. The charge of Fighting Without a Weapon is a Level
2 offense, which can carry the penalty of the loss of good-time credit, loss of privileges, cell restriction, and/or extra duty. The Report
was then forwarded to Officer Bannerman's supervisor, who determined that a "major" disciplinary hearing would be held. Inmate
Moore received written notice of the charges two days before his hearing, which was held on February 17, 2000, before a
Disciplinary Hearing Officer ("DHO"). At the hearing, Inmate Moore was represented by counsel substitute, who was present by
speaker phone. In addition, Officer Bannerman testified and was cross-examined by counsel substitute regarding the incident. Once
the hearing was concluded, the DHO completed a Major Disciplinary Report and Hearing Record, indicating that Inmate Moore was
found guilty of Fighting Without A Weapon. The second charge, Refusing to Obey Orders, was made a lesser included charge.
Noting that the punishment levied was the only option available to him, the DHO then sentenced Inmate Moore to 45 days' canteen
and telephone restrictions, .
On May 23, 2000, after Inmate Moore filed this appeal with the Division, I issued an Order Governing Procedure, in which I ordered
the Department to file and serve the Record in this case no later than July 17, 2000. On June 15, 2000, Inmate Moore filed his
Motion to Dismiss, alleging that the Department had failed to respond to his Notice of Appeal in a timely fashion. The Department
filed the Record on July 12, 2000.
III. ANALYSIS
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 appellants 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. 1999); 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.
The Fourteenth Amendment's guarantee of procedural due process applies only to the deprivation of a life, liberty, or property
interest. Board of Regents of State College v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972). The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963
(1974); Al-Shabazz v. State, 338 S.C. at 369-370, 527 S.E.2d at 750. An inmate facing the loss of sentence-related credits is entitled
to minimal due process to ensure that the state-created right is not arbitrarily abrogated. Al-Shabazz v. State, 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. Dept. Of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 30, 341 (1991), certain
elements must be satisfied in order for procedural due process requirements to be met, including adequate advance 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.
371, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
However, no liberty interest is implicated when an inmate is faced with lesser penalties such as the loss of television, canteen, or
telephone privileges. Al-Shabazz v. State, 338 S.C. at 372, 527 S.E.2d at 751, fn.8. Therefore, an inmate facing a disciplinary
proceeding in which he stands to lose only canteen and 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.").
In the instant case, Inmate Moore did not face the "potential loss of sentence-related credits." Although Inmate Moore was charged
with an offense that carried a possible penalty of loss of good time credits, the Record shows that the only punishment that the DHO
could levy on Inmate Moore was the loss of canteen and telephone privileges. (1) Because Inmate Moore has no liberty interest in
such privileges, he was not entitled to any due process before the Department took those privileges away as punishment for a
disciplinary infraction. Accordingly, the Department's Final Decision is affirmed.
Moreover, because the Department filed the Record five days earlier than required by the Order Governing Procedure issued on May
23, 2000, Inmate Moore's Motion to Dismiss is denied.
IV. ORDER
IT IS THEREFORE ORDERED that Inmate Moore's Appeal is denied, and the Final Decision of the Department is hereby
AFFIRMED.
IT IS FURTHER ORDERED that Inmate Moore's Motion to Dismiss is DENIED.
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
October 30, 2000
Columbia, South Carolina
1. Whether Inmate Moore is ineligible to earn good-time credits is not clear from the Record; however, for purposes of this appeal, it
is not necessary to know why Inmate Moore could not lose good-time credits so long as there is uncontroverted evidence in the
Record that Inmate Moore could not indeed lose good-time credits. |
