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SC Administrative Law Court Decisions

James E. McNeil, #147700 vs. SCDOC

South Carolina Department of Corrections

James E. McNeil, #147700

South Carolina Department of Corrections




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.



Ralph King Anderson, III

Administrative Law Judge

May 23, 2001

Columbia, South Carolina

Brown Bldg.






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