SC Administrative Law Court Decisions

In this matter Dennis Michael Thomason (Thomason) argues that DOC improperly confiscated Thomason's radio. In challenging DOC's actions, Thomason argues that the ALJD cannot review this case in an appellate capacity, that the DOC decision was rendered in violation of Thomson's procedural and substantive due process rights, that the DOC decision is lacking in reasonable factual support, and that the confiscation constitutes gross negligence by DOC. After a review of the facts and arguments, I disagree with Thomason and uphold the DOC decision.

Thomason obtained possession of a radio in 1993 while he was confined to the Broad River Correctional Institution. At an unspecified date, Thomason was transferred to Tyger River Correctional Institute. He brought the radio with him with the knowledge and permission of the Tyger River officials.

On or about October 30, 1999, employees of DOC at the Tyger River Correctional Institute confiscated Thomason's radio while the radio was in Thomason's possession in his cell. The basis for the confiscation was that "[r]adios with recording capability are not permitted in the institution as they have never been grandfathered." Step 2 Grievance Form.

Thomason asserts the radio has neither the ability to record nor a microphone through which to record. Step 1 and Step 2 . However, internal appeals within DOC determined that the radio has the ability to record.

1. Is the ALJD review an appellate review?

2. Was the DOC decision rendered in violation of Thomson's procedural and substantive due process rights?

3. Was the confiscation of Thomason's radio an act of gross negligence by DOC?

• Was the DOC decision lacking in reasonable factual support?

This case raises three procedural issues and one issue of whether substantial evidence exists to support DOC's decision to remove the radio.

A. Procedural Issues

1. Appellate Review

Thomason argues that an appellate review by the ALJD is improper. Rather, he argues that the ALJD must hold a contested case hearing in this matter. Thomason's position is contrary to established law and must be denied. See Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000) ("The ALJ sits in an appellate capacity to review Department's decisions."); Al-Shabazz v. State at 338 S.C. at 376 ("Department's procedures provide a sufficient method of resolving administrative matters pertaining to inmates without the need for a contested-case hearing before an ALJ.").

2. Lack of Due Process

a. Procedural Due Process

Thomason argues that his rights to procedural due process are violated by the removal of the radio since he was given no pre-deprivation remedy. Procedural due process questions are examined in two steps. First, a determination is made on whether a deprivation of a protected property or liberty interest occurred. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-72 (1972). Second, if yes, a determination is made on whether the procedures used were constitutionally sufficient. Hewitt v. Helms, 459 U.S. 460, 472 (1983).

Before examining the two inquiries, I recognize as a preliminary matter that often the lack of a pre-deprivation remedy is of no consequence when an adequate post-deprivation remedy is available. Indeed, in the instant case, Thomason may have a right to a post-deprivation remedy to sue in negligence under the Tort Claims Act to recover for the loss of his radio. See S.C. Code Ann. § 15-78-10 et. seq. However, such a tort remedy does not satisfy the demands of procedural due process if (as is the case here) the removal of the property is pursuant to an established state procedure. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Here an established state procedure exists for the removal of radios with a recording device since State policy OP-22.03 makes such items "unauthorized property" and therefore subject to being confiscated. Only when the property loss is the result of random and unauthorized action of state officials can the existence of a post-deprivation tort remedy meet the demands of due process. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Thus, since the removal of the property was not the result of random and unauthorized actions, the presence of a post-deprivation remedy does not negate the need to examine the pre-deprivation actions of DOC.

Therefore, the first inquiry in this pre-deprivation analysis is whether a protected property interest is impacted.

In examining the property interest, all agree Thomason acquired and possessed the radio before coming to Tyger River Correctional Institute, and further, all agree that he was allowed to retain possession after his entrance into the new facility. Accordingly, the radio was a part of his personal belongs upon entering the facility, and he held a continuing possession of the radio. Such facts normally give rise to a protected property interest. See Balabin v. Scully, 606 F.Supp. 176 (D.C.N.Y.,1985) ("That a prisoner has a property interest in his personal belongings is undisputed."); McCrae v. Hankins, 720 F.2d 863, 869 (5th Cir.1983) ("When inmates are afforded the opportunity, whether by 'right' or 'privilege,' to possess personal property, they enjoy a protected interest in that property that cannot be infringed without due process."). However, in a prison setting, before an interest can become a protected interest in personal property, the possession of the property must not be prohibited. Bell v. Wolfish, 441 U.S. 520, 553-55 (1979).

Here, DOC has a prison policy prohibiting radios with a recording feature. Thomason argues the policy does not apply to him since his radio has no recording feature. DOC, on the other hand, disagrees by arguing a recording feature is present.

Accordingly, a factual dispute exists on whether the radio has the forbidden recording feature. In deciding this factual dispute, an ALJ is constrained to reviewing the matter in an appellate capacity. Al-Shabazz v. State 338 S.C. 354, 527 S.E.2d 742. Accordingly, an appellate ALJ "will not substitute [his] judgment for that of the agency as to the weight of the evidence on questions of fact." S.C.Code Ann. § 1-23-380(A)(6) (Supp. 2000).

Here, at least two reviewing officials (see Step 1 and Step 2 reviews) concluded the radio has a recording feature. See specifically ROA, Step 2 ("Radios with a recording capability are not permitted in the institution as they were never grandfathered."). Therefore, DOC has factually concluded that the radio has a recording feature. Thus, the ALJ will not overturn that factual determination.

Since the radio has a forbidden recording feature, the radio is "unauthorized property" which may be confiscated. See OP-22.03 ("Unauthorized property items will be confiscated."). Thomason has no protected property interest in unauthorized property. See Garrett v. Sawyer, 3 P.3d 94 (2000) (personal property which is improperly held, such as contraband, does not give rise to a protected property interest). Lacking any protected property interest in the radio, the radio was subject to removal without any requirement for a pre-deprivation hearing. Thus, no violation of procedural due process occurred in this matter.

b. Substantive Due Process

Some courts have held that "other than a protected liberty interest, no substantive due process right exists in the prison context." Ashley v. Snyder, 739 N.E.2d 897 (2000), rehearing denied. Such a sweeping view need not be taken in this case. Rather, a more traditional view can be applied here.

In a property interest context, a substantive due process analysis is invoked only if a protected property interest is terminated and then only if the termination is arbitrary, capricious, or without a rational basis. Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir. 1998). In this case, as discussed above, Thomason held no protected property interest. Indeed, the radio was not legally held by him since it was in violation of an existing DOC policy. Moreover, the removal was not arbitrary since the removal was based on a specific feature (recording feature) and that feature was present in the radio involved in this case. Thus, no substantive due process violation is present in this case.

3. Negligence Claim

Thomason seeks to obtain relief based upon gross negligence. No jurisdiction exists in the ALJD to address a tort claim.

An inmate is entitled to a modified contested case hearing before DOC officials when the inmate "challenges a disciplinary outcome, calculation of sentence-related credits, custody status, or other condition of imprisonment." Al-Shabazz v. State at 338 S.C. at 375 - 376. An ALJD appellate review is available for inmates dissatisfied with the outcome of the modified contested case hearing. Al-Shabazz v. State at 338 S.C. at 376 - 377. Therefore, it follows, an ALJD appellate review is available only for those matters in which an inmate "challenges a disciplinary outcome, calculation of sentence-related credits, custody status, or other condition of imprisonment." Accordingly, a forum other than the ALJD must be sought when an inmate alleges negligent actions by a state agency. See South Carolina Tort Claims Act, see §§ 15-78-10 et seq.

B. Substantial Evidence

Thomason also argues the DOC decision is unsupported by the evidence. In this case, a factual dispute existed below on whether the radio has the forbidden recording feature. At least two reviewing officials (see Step 1 and Step 2 reviews) concluded the radio has a recording feature. See specifically ROA, Step 2 ("Radios with a recording capability are not permitted in the institution as they were never grandfathered."). Therefore, DOC factually concluded the radio has a recording feature.

In reviewing a factual dispute, an ALJ is constrained to reviewing the matter in an appellate capacity. Al-Shabazz v. State 338 S.C. 354, 527 S.E.2d 742. In an appellate capacity, an ALJ "will not substitute [his] judgment for that of the agency as to the weight of the evidence on questions of fact." S.C.Code Ann. § 1-23-380(A)(6) (Supp. 2000). Accordingly, while the evidence below is conflicting, the ALJ will not overturn a factual determination of DOC.

The appeal of Dennis Michael Thomason's grievance to the ALJD must be denied. The removal of the radio is proper and the DOC decision is upheld.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: May 21, 2001

Columbia, South Carolina