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SC Administrative Law Court Decisions

Alvin Smalls, #253745 vs. SCDOC

South Carolina Department of Corrections

Alvin Smalls, #253745

South Carolina Department of Corrections





This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Alvin Smalls, an inmate incarcerated with the Department of Corrections ("Department") since December 13, 1997. On January 12, 2000, Inmate Smalls was convicted of Sexual Misconduct after he was observed masturbating at the window of the Crisis Intervention room in which he was housed on January 3, 2000, at Allendale Correctional Institution ("Facility"). As a result of his conviction, Inmate Smalls lost 40 days of "good-time" credit and visitation privileges for one year. Inmate Smalls filed a grievance with the Department on January 14, 2000, and received the Department's final decision on April 14, 2000. On April 26, 2000, Inmate Smalls filed this appeal.


On January 3, 2000, Inmate Smalls was housed in Cell B-126, the Crisis Intervention Room of the Security Management Unit ("SMU"). At approximately 12:50 p.m., Officer Christine Moore, who was assigned to the SMU Control Room, observed Inmate Smalls "with his right hand on his erected penis hanging out the flap moving his hand in an up and down motion." Subsequently, Officer Moore completed a Disciplinary Offense Report in which she described her observations and recommended charging Inmate Smalls with Disciplinary Offense 2.9, Sexual Misconduct. Officer Moore then forwarded the Report to her supervisor, who recommended that a Major Disciplinary Hearing be held. On January 4, 2000, Inmate Smalls was notified in writing of the charge. However, Inmate Smalls did not receive a copy of the charge. On January 7, 2000, Inmate Smalls was brought before a Disciplinary Hearing Officer ("DHO"), who postponed the hearing after discovering that Inmate Smalls had not received a copy of the charge. Inmate Smalls was given a copy of the charge. On January 12, 2000, the DHO reconvened the hearing. At the hearing, Officer Moore testified regarding the incident and was cross-examined by counsel substitute. In addition, Inmate Smalls testified that another inmate, housed in the cell next to him, admitted to Inmate Smalls that he had been the one Officer Moore observed masturbating. At the conclusion of the hearing, the DHO informed Inmate Smalls that he had been found guilty of Sexual Misconduct and sanctioned with the loss of 40 days' good time and visitation privileges for one year. After the hearing, the DHO completed a Major Disciplinary Report and Record, stating that she relied on Officer Moore's Report and her testimony in arriving at her decision. In addition, the DHO noted that Inmate Smalls' actions were willful.

Inmate Smalls filed a grievance on January 14, 2000, appealing his conviction of Sexual Misconduct and arguing that he had not received a copy of the charges until January 7, 2000. Additionally, Inmate Smalls alleged that his counsel substitute failed to call his witnesses and that Officer Moore testified that Inmate Smalls was clothed while in Crisis Intervention. On February 4, 2000, the warden denied his grievance, finding that Inmate Smalls was found guilty based on Officer Moore's verbal and written statements and that no procedural errors had occurred. On February 9, 2000, Inmate Smalls appealed the warden's February 4 decision. The Department denied his grievance, finding that the evidence presented was sufficient to support his conviction and that the sanction imposed was appropriate. This appeal followed. In his Notice of Appeal, Inmate Smalls implies that the suspension of his visitation privileges for a year was improper.


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.

The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz, 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. 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).

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.

I find that Inmate Smalls was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Inmate Smalls received written notice of the charge in excess of twenty-four hours prior to a hearing that was held before an impartial hearing officer and in which he was able, through counsel substitute, to offer evidence. Inmate Smalls was afforded the opportunity to confront his accuser. The Hearing Record reflects that the DHO found Inmate Smalls guilty of the charge based on the written and verbal statements of Officer Moore. After his conviction, Inmate Smalls filed a grievance and received a prompt response from his warden, which Inmate Smalls then appealed to the Department. In its denial of his appeal, the Department informed Inmate Smalls that he had the right to appeal the Department's final decision under the Administrative Procedures Act.

In addition, although Inmate Smalls now claims he requested that his counsel substitute procure the testimony of the inmate who was in the cell next to Inmate Smalls on the day of the alleged incident, Inmate Smalls neither made a request for witnesses prior to the hearing, via Request to Staff Member, nor during the hearing. Therefore, Inmate Smalls' claim that he was wrongfully denied witness testimony is without merit.

Moreover, I find that there is substantial evidence to support Inmate Smalls' conviction of Sexual Misconduct. Officer Moore prepared a written report detailing her observations. In addition, Officer Moore testified during the hearing that she had observed Inmate Smalls masturbating. When asked by the DHO if she was sure it was Inmate Smalls, Officer Moore answered affirmatively. Although Inmate Smalls testified that Officer Moore had observed another inmate masturbating, there is substantial evidence that Officer Moore observed Inmate Smalls committing the offense. Officer Moore's testimony that Inmate Smalls was clothed when he was brought to the Crisis Room is not contradictory to her testimony that she observed him masturbating. Therefore, I affirm the Department's final decision regarding Inmate Smalls' conviction.

Finally, I find that Inmate Smalls' implication that the imposed penalty of loss of one year's visitation is somehow unconstitutional is without merit. The denial of prison visitation is "well within the terms of confinement ordinarily contemplated by a prison sentence," it is not a liberty interest protected by the Due Process Clause. See Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989). Therefore, I affirm the Department's final decision regarding the penalty assessed to Inmate Smalls as a result of his conviction.


IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED and the appeal of Inmate Smalls is DISMISSED.



Ralph King Anderson, III

Administrative Law Judge

May 23, 2001

Columbia, South Carolina

Brown Bldg.






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