ORDERS:
ORDER OF DISMISSAL
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Dennis Bibbs, an
inmate incarcerated with the Department of Corrections ("Department"). On May 14, 1999, Bibbs was convicted of SCDC
Disciplinary Code 1.13, Any Act Defined as a Felony by the Laws of the State of South Carolina or the United States and
not otherwise Defined in these Rules. As a result of his conviction, Bibbs lost 360 days of "good-time" credit. Bibbs filed
a grievance with the Department and received the Department's final decision on August 12, 1999. Apparently, Bibbs then
filed an application for Post-Conviction Relief, which was subsequently remanded to the Department after the South
Carolina Supreme Court decided Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). On April 11, 2000, Bibbs
filed this appeal.
II. BACKGROUND
On May 6, 1999, Bibbs was charged with SCDC Disciplinary Code 1.13, Any Act Defined as a Felony by the Laws of the
State of South Carolina or the United States and not otherwise Defined in these Rules after an investigation revealed that
Bibbs conspired with a corrections officer to bring contraband into Kershaw Correctional Institution ("Kershaw"). That
same day, an Incident Report was completed, detailing that an investigation conducted by Investigator James Robinson
revealed that Bibbs had conspired with a corrections officer to bring drugs or contraband into Kershaw. On May 9, 1999,
Bibbs received written notice of the charge; however, Bibbs refused to sign for it. Consequently, Bibbs failed to request a
counsel substitute or his accuser's presence during his impending disciplinary hearing. On May 14, 1999, Bibbs was
brought before a Disciplinary Hearing Officer ("DHO"), who conducted his disciplinary hearing. During the hearing,
Bibbs pleaded guilty to the charge. The DHO then explained to Bibbs that, by pleading guilty, he would fail to earn 20
days of good time for the month of May and that additional good time may be taken, as well as other punishment imposed.
Bibbs indicated that he understood. The DHO then gave Bibbs the opportunity to make a statement on his behalf. Bibbs
declined. After accepting Bibbs' guilty plea, the DHO received evidence in support of the charge against Bibbs. Bibbs
requested that the DHO consider that he had been disciplinary free for the past five years. At the conclusion of the hearing,
the DHO informed Bibbs that his guilty plea had been accepted and that he had been found guilty of the charge. In
addition, the DHO informed Bibbs that he would be sanctioned with the loss of 360 days of good time. After the hearing,
the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), which documented the DHO's
findings based on the Incident Report and Bibbs' guilty plea. Finally, the Hearing Record reflects that Bibbs lost 360 days
of good-time credit as a result of the conviction.
Bibbs filed a grievance on May 24, 1999, appealing his conviction of violating SCDC 1.13 based on "procedural errors" in
completing various Department forms. In addition, Bibbs explained that he refused to sign the Notice of Charges because
he thought it would be construed as an admission of guilt. On June 14, 1999, the warden denied his grievance, finding
credible evidence of Bibbs' guilt and relying on Bibbs' guilty plea. On June 18, 1999, Bibbs appealed the warden's
decision, reasserting the same grounds addressed in his Step 1. The Department denied his grievance, finding that the
evidence presented was sufficient to support his conviction and that he pled guilty. This appeal followed. 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). On September 5, 2001, the Division issued an En Banc Order
in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), interpreting the
breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division's appellate jurisdiction in inmate
appeals is limited to two types of cases: (1) cases in which an inmate contends that prison officials have erroneously
calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the Department has taken an
inmate's created liberty interest as punishment in a major disciplinary hearing.
In this case, Inmate Bibbs alleges that he lost 360 days of good time after he was convicted of a prison disciplinary
infraction in violation of his due process rights. As such, I find that this tribunal has jurisdiction to hear Inmate Bibbs'
appeal.
In its appellate capacity, the Division is concerned with ensuring that the appellants receive all procedural process they are
due when the constitutional rights of the appellants are implicated. 338 S.C. at 369, 527 S.E.2d at 750. Because statutory
right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment, an inmate is entitled to
minimal due process before those credits may be taken away. Id. 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, 527 S.E.2d at 751, citing Wolff v.
McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
However, an inmate may waive his right to due process by knowingly and voluntarily pleading guilty to a disciplinary
charge. See Wykoff v. Resig, 613 F.Supp. 1504, 1507-08 (N.D. Ind. 1985), citing Brewer v. Williams, 430 U.S. 387
(1977). An inmate's guilty plea is neither knowing nor voluntary if it is "'induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfillable promises), or perhaps by promises that are by their nature
improper or having no proper relationship to the prosecutor's business (e.g. bribes).'" Id. at 1508, quoting Marby v.
Johnson, 104 S. Ct. 2543, 2547 (1984).
In this case, Bibbs pleaded guilty to the charge. There is no evidence in the Record that Bibbs' plea was neither knowing
nor involuntary. Although Bibbs asserts that his plea of guilt should not have been accepted without the assistance of
counsel substitute, it must be noted that counsel substitute is not constitutionally required unless the case is complex or the
inmate is illiterate or otherwise impaired. Moreover, Bibbs waived his right to counsel substitute.
Notwithstanding his guilty plea, I find that Bibbs was afforded all process due him pursuant to Al-Shabazz. The Record
indicates that, even though he refused to sign it, Bibbs was given written notice of the charges in excess of 24 hours prior
to his hearing before an impartial hearing officer. In addition, Bibbs was offered the assistance of counsel substitute and
the presence of his accuser at the hearing. By choosing not to sign his written notice, Bibbs waived both. Further, although
he chose not to do so, Bibbs was given the opportunity to offer evidence and witnesses. The DHO prepared a written
report detailing the evidence he relied upon and the penalty assessed in finding Bibbs guilty of the disciplinary infraction.
Finally, Bibbs was permitted to appeal the DHO's decision through the inmate grievance process. Bibbs alleges that the
Department violated his due process rights by failing to complete each form as specified by Department policy and that he
refused to sign the written notice because he viewed it as an admission of guilt. However, Bibbs failed to raise these issues
during his hearing. Instead, when the DHO asked whether he had anything to say, Bibbs responded, "No Sir." An
inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on
appeal. Moreover, Bibbs must accept that every failure of the Department to follow its own policies and procedures,
whether deliberate or inadvertent, is not a violation of due process. Only if the Department's failure adversely affects an
inmate's life, liberty, or property right is an inmate's right of due process implicated. In his silence, Bibbs failed to offer
any evidence that the Department's alleged failure to follow its own policies adversely affected his liberty interests.
Moreover, the Record contains substantial evidence that Bibbs committed the offense. The Incident Report indicated that
Bibbs had conspired to bring drugs into Kershaw. In addition, Bibbs pleaded guilty to the charge.
Accordingly, the Department's final decision is affirmed.
V. ORDER
IT IS THEREFORE ORDERED that the appeal of Bibbs is DISMISSED and the Final Decision of the Department is
AFFIRMED;
IT IS FURTHER ORDERED that all pending motions of the parties are deemed denied;
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 6, 2001
Columbia, South Carolina |
