ORDERS:
ORDER
I. STATEMENT OF CASE
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.
II. BACKGROUND
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.
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.
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.
IV. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED and the
appeal of Inmate Smalls is DISMISSED.
AND IT IS SO ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
May 23, 2001
Columbia, South Carolina |
