ORDERS:
FINAL ORDER AND DECISION
Grievance No. 414-97
I. Introduction
Henry Jackson (Jackson) brings this appeal challenging a decision by William D. Catoe, Director of S.C. Department of
Corrections (DOC) that convicted Jackson of refusing or failing to obey orders. Jurisdiction is invoked in the instant case
since this matter is a major disciplinary hearing in which Jackson was punished by the loss of good time credits, a created
liberty interest. See Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000) and McNeil v. South Carolina
Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). After a review of the record and the arguments,
the DOC decision is remanded for a new hearing.
II. Scope of Review
In this review, the Administrative Law Judge (ALJ) acts "in an appellate capacity" and is "restricted to reviewing the
decision below." Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 754 (2000). The review must apply the criteria of
S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000). See S.C. Code Ann. § 1-23-380(B) (Supp. 2000) (where an ALJ is
directed to conduct a review "in the same manner prescribed in [§ 1-23-380](A)."). Section 1-23-380(A)(6) establishes the
following:
The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
In this case, among other grounds, Jackson argues that the DOC decision is made upon unlawful procedure since he was
improperly removed from his hearing. Since I find that Jackson's due process right to be allowed to call witnesses and
present documentary evidence in his defense was denied by Jackson's removal, I do not reach any other grounds. Wolff v.
McDonnell, 418 U.S. 539, 566 (1974).
III. Analysis
Unlawful Procedure: Rights to Procedural Due Process
Jackson argues that the DOC decision was made upon unlawful procedure since the conduct at the hearing violated
procedural due process. An inmate subjected to the loss of good time credits is entitled to a procedure which requires:
(1) that advance written notice of the charge be given to the inmate at least twenty-four hours before the hearing; (2) that
factfinders must prepare a written statement of the evidence relied on and reasons for the disciplinary action; (3) that the
inmate should be allowed to call witnesses and present documentary evidence, provided there is no undue hazard to
institutional safety or correctional goals; (4) that counsel substitute (a fellow inmate or a prison employee) should be
allowed to help illiterate inmates or in complex cases an inmate cannot handle alone; and (5) that the persons hearing the
matter, who may be prison officials or employees, must be impartial. Wolff, 418 U.S. 563-72, 94 S.Ct. 2978-82, 41 L.Ed.2d
at 954-60.
Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 751 (2000)
In the instant case Jackson argues that his removal from the hearing is tantamount to not being allowed to call witnesses
and present documentary evidence. Other than general assertions that due process was afforded, DOC's brief makes no
substantive argument on the law or facts associated with Jackson's argument that his removal was improper. I find the law
as applied to the facts of this case supports Jackson's argument.
Nothing in Wolff v. McDonnell, 418 U.S. 539 (1974) expressly states that an inmate has a right to be present during a
disciplinary hearing. However, as a part of the inmate's due process right to call witnesses and present evidence, courts
have generally held that an inmate has a right to be present at his own disciplinary hearing but that right is conditioned on
"maintaining institutional safety and other correctional goals." See Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir.1989)
("[T]he question presented in this case is not whether a prisoner must be given the opportunity to attend the hearing, but
rather whether a prisoner's right to attend the hearing is "absolute" in the sense that the hearing cannot under any
circumstances be conducted without him. We hold that a prisoner does not have such a right."); Battle v. Barton, 970 F.2d
779, 782 (11th Cir. 1992) ("Notwithstanding the fact that an inmate has a due process right to be present at his own prison
disciplinary hearing, the Supreme Court has made clear that the rights accorded inmates at disciplinary hearings are not
absolute, and are limited by 'the competing concerns of maintaining institutional safety and other correctional goals.' Smith
v. Massachusetts Dept. of Corrections, 936 F.2d 1390, 1399 (1st Cir.1991)."); Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct.
2192, 2196, 85 L.Ed.2d 553 (1985) (due process is met "so long as the reasons [for depriving an inmate of his rights] are
logically related to 'institutional safety or correctional goals'....".).
Thus, the issue is whether "maintaining institutional safety or other correctional goals" justified removal of Jackson from
the disciplinary hearing. The proof of whether removal meets a proper institutional goal is on DOC. See Grandison v.
Cuyler, 774 F.2d 598, 604 (3d Cir.1985) ("the burden of persuasion as to the existence and sufficiency of such institutional
concerns ... is borne by the prison officials, not by the prisoners.").
In this case, the entire sequence of events leading to Jackson's removal is as follows:
DHO: The purpose of this hearing is to treat the matter before me with fundamental fairness and to arrive at a just decision.
All parties must conduct themselves properly. Failure to do so will result in removal. State your name and SCDC number
for the . . .
I/M: Henry Jackson. . . .
DHO: Wait, listen to my questions before you answer. Failure to follow proper decorum will result in removal. State your
name and SCDC number . . .
I/M: Henry Jackson, #197132.
DHO: Remove him from the hearing. This hearing will continue in I/M Jackson's absence. I/M Jackson was informed to
follow the proper decorum. He failed to follow proper decorum by anticipating and responding out of order.
In this case, DOC argues that removal was proper since Jackson "was being disruptive." (1) DOC's Br. p. 3. Certainly,
"internal order" and "discipline" are two correctional goals that must be balanced against the due process rights of inmates. Bell v. Wolfish, 441 U.S. 520 (1979). Further, in making that balance, no doubt exists that such goals can be furthered
when a Hearing Officer removes an inmate for constant interruptions during a hearing. Lowrence v. Mann,189 A.D.2d
1036, 592 N.Y.S.2d 889 (1993). However, the burden in each case is upon DOC to prove that the non-compliance was in
opposition to internal order or discipline. Grandison v. Cuyler, supra.
Here, DOC has not meet that burden. The record fails to show that Jackson's action threatened internal order or discipline.
On the contrary, Jackson complied by answering each of the two questions he was asked. The only error on his part is that
he answered before the question was completely finished. Jackson's actions fail to show any dilatory intent, but rather
show an intent to cooperate.
The reason given by the Hearing Officer for removing Jackson is that he failed to "follow proper decorum." DOC has failed
to show how this particular violation of "decorum" was meaningfully related to the legitimate institutional goals of a
internal order or discipline. Granted, a point can be reached in a hearing in which a non-compliant inmate may and should
be removed with such removal not being a denial of due process. However, the facts of this case is simply not one of them.
IV. Conclusion
DOC's conviction of Jackson for use or possession of narcotics, marijuana or unauthorized drugs is vacated and this matter
is remanded for a new hearing.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: December 11, 2001
Columbia, South Carolina
1. In the related case of 00-ALJ-04-00098-AP, DOC makes no argument in its brief addressing the reasons for removal of
Jackson in that case. |