ORDERS:
ORDER OF DISMISSAL
This matter comes before the Administrative Law Judge Division ("Division") pursuant to the appeal of
James E. McNeil, an inmate incarcerated with the Department of Corrections ("Department") since
March 20, 1991. In early January 2000, while housed in the Security Management Unit ("SMU"),
Inmate McNeil was involved in an incident, which resulted in his being charged with Refusing or
Failing to Obey Orders, Disciplinary Code 2.13. On January 6, 2000, the Department held a minor
hearing, in which Inmate McNeil appeared before a minor hearing officer and was permitted to tell his
version of the events leading up to the charge. Inmate McNeil was neither afforded counsel substitute
nor permitted to offer any witness testimony. Based on the testimony and report of the charging officer,
the minor hearing officer convicted Inmate McNeil of the charge. As a result, Inmate McNeil was
placed on cell restrictions for 15 days. Inmate McNeil filed a grievance on January 20, 2000, alleging
that the Department had violated his due process rights by failing to provide him, an inmate housed in
SMU, with counsel substitute. Inmate McNeil received the Departments' denial of his grievance on
April 21, 2000. On May 4, 2000, Inmate McNeil filed this appeal with the Division.
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.
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). Protected liberty interests may arise from either the Due Process Clause or the laws
of the states. Sandin v. Conner, 515 U.S. 472 (1995). The Due Process Clause does not create a
protectable interest in being free from cell restrictions because it is "well within the terms of
confinement ordinarily contemplated by a prison sentence." See Kentucky Department of Corrections v.
Thompson, 490 U.S. 454 (1989). Absent a Fourteenth Amendment right, an inmate challenging cell
restrictions is entitled to relief only if the state created a liberty interest in being free from cell
restrictions. Id. at 461. Neither state law nor Department policy create such an interest.
I find that Inmate McNeil has no protected interest in remaining free from cell restrictions. Because he
has no liberty interest in being free of such restrictions, Inmate McNeil was not entitled to an Al-Shabazz v. State-type hearing before the Department imposed such restrictions. Therefore, the
Department's failure to provide Inmate McNeil with counsel substitute in accordance with its
Disciplinary policy is of no constitutional significance.
IT IS THEREFORE ORDERED that the Departments' Final Decision is AFFIRMED and Inmate
McNeil's appeal is DISMISSED.
AND IT IS SO ORDERED.
_____________________________________
Ralph King Anderson, III
Administrative Law Judge
May 23, 2001
Columbia, South Carolina |
