SC Administrative Law Court Decisions

Henry Jackson (Jackson) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) convicting Jackson of use or possession of narcotics, marijuana or unauthorized drugs. After a review of the record and the arguments, the DOC decision is vacated and this matter remanded for a new hearing.

The Administrative Procedures Act (APA) provides an inmate with an appellate review to a limited range of administrative decisions issued by the Department of Corrections (DOC). Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000). Indeed, an APA review is confined to those cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status and to those cases in which DOC has taken an inmate's created liberty interest as punishment in a major disciplinary hearing. See the En Banc Order of McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). Here, jurisdiction is available since this case arises from a major disciplinary hearing in which Jackson was punished by the loss of good time credits, a created liberty interest.

In cases such as the instant one, an 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 the instant matter, among other grounds, Jackson argues that the DOC decision is made upon unlawful procedure. Since I find the unlawful procedure requires a new hearing, none of the other grounds argued by Jackson are addressed.

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.

First, no argument is made by DOC identifying any institutional goal to which the removal is related. Thus, the ALJ is left to speculate on what DOC intended to accomplish. Such speculation is inappropriate for appellate review. Porter v. S.C. Public Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998). (a court will not accept an administrative agency's decision at face value without requiring the agency to explain its reasoning).

Second, even if the unstated institutional goals are "internal order" and "discipline," those two correctional goals must be balanced against the due process rights of inmates. Bell v. Wolfish, 441 U.S. 520 (1979). 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.

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