SC Administrative Law Court Decisions

Barry Britt (Britt) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Britt of the use or possession of marijuana for which he lost 640 days of good time credits. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Britt was punished by the loss of good time credits, a loss which impacts a created liberty interest. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000); 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 AFFIRMED.

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, Britt argues that the DOC decision is made upon unlawful procedure and that the decision is not supported by substantial evidence.

Britt argues the hearing was carried out under unlawful procedure since DOC failed to follow lawful procedures.

1. Failed To Provide Procedural Due Process.

Britt argues procedural due process was not followed. Due process for an inmate subjected to the loss of good time credits requires the following procedures:

(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 Britt argues that advance written notice of the specific charge against him was not given before the hearing and that the hearing officer was not impartial.

a. Advanced written notice

Procedural due process requires advanced written notice so that the inmate may make adequate preparation for the hearing and to clarify what the charges are for which a hearing will be held. Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Failure to provide adequate notice of the charges calls into question whether due process has been provided Kim v. Hurston, 182 F.3d 113, 119 (2d Cir. 1999) (potential due process violation when ground for termination of liberty interest changes and the prisoner is not informed of new ground).

Here Britt argues that on January 26, 1998, he was charged with possession of marijuana. However, at the hearing on Februrary 26, 1998, Britt argues he was faced not with possession but instead with conspiring to possess marijuana. Such a change, Britt asserts, was a surprise to him and denied him the ability to properly defend his position. I cannot agree with Britt.

The notice of the charges to Britt on January 26, 1998 explained that a confidential source identified Britt as committing the following:

"attempting to have approximately four ounces of marijuana smuggled into Broad River Correctional Institute. An investigation was initiated. The investigation revealed that Inmate Britt had 95.4 grams of marijuana delivered to Broad River Correctional Institution."

A fair reading of the notice does not assert that Britt came into actual possession of the marijuana. Rather, the assertion is that Britt was "attempting to have" the marijuana brought into the correctional facility and that the marijuana was "delivered to" the institute. Thus, the charge is that DOC believed Britt was at least a part of a scheme in cooperation with others to bring marijuana into the correctional facility. Therefore, Britt was on fair notice that he was charged with his role in bringing the marijuana into the prison not with whether he ever obtained actual possession of the marijuana. Further, Appendix A, Op-22.14, p. 22 addressing SCDC Disciplinary Offenses provides that the violation of a disciplinary rule includes not only the actual act but also "attempting to engage in a specific behavior, conspiring to engage in a specific behavior, and/or aiding others in conspiring or attempting or engaging in a specific behavior." Accordingly, Britt was on fair notice of the charge against him and no due process violation is presented.

b. Impartial Hearing Body

The use of prison officials to hold inmate hearings does not present an inherent showing of a lack of an impartial hearing and such use of prison officials is not a violation of due process. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (no due process violation when prison officials serve as impartial decision-makers at disciplinary hearings). Certainly, an impartial hearing board is required. Wolff, 418 U.S. at 539, 572 n.20. However, due process is violated only if the officer is substantially involved with the investigation. See Merritt v. De Los Santos, 721 F.2d 598, 601 (7th Cir. 1983) (due process violated only if officer substantially involved with investigation of charges against inmate, but not violated if officer's involvement at hearing is only tangential); see, e.g., Diercks v. Durham, 959 F.2d 710, 713 (8th Cir. 1992) (due process violation when complainant was member of board hearing the case). But see, e.g., Pedraza v. Meyer, 919 F.2d 317, 320 (5th Cir. 1990) (no due process violation when disciplinary board official's only involvement in filing of complaint was receipt of incident report and intercepted letters); Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) (no due process violation when investigating officer signs disciplinary report as shift supervisor); Ivy v. Moore, 31 F.3d 634, 635 (8th Cir. 1994) (no due process violation when chairperson of hearing personally investigated defense because did not threaten impartial decision-making); Mitchell v. Maynard, 80 F.3d 1433, 1446 (10th Cir. 1996) (no due process violation because officer did not witness inmate's participation in riot, was not present during riot, and did not prepare offense report).

Here, no evidence of an impartial hearing is present. The transcript shows the inmate attended the hearing and that the decision rendered was based on the evidence presented. No showing is present that the hearing officer was involved in the investigation or prosecution of the case. Likewise no showing exists that the officer had a pre-designed conclusion. Rather, the evidence from both sides was considered and a decision rendered.

2. Failed to Follow DOC's Own Rules

Britt asserts that DOC failed to follow its own rules governing the grievance process. Specifically, he argues that DOC placed him on Prehearing Detention but did not timely provide a hearing. Further, Britt argues that DOC failed to have the contraband available at the hearing.

Well established law explains that an agency's failure to follow its own procedural rules and regulations does not violate an aggrieved party's constitutional due process rights since no such constitutional right exists. See Board of Curators v. Horowitz, 435 U.S. 78, 92, 98 S.Ct. 948, 956, 55 L.Ed.2d 124, 136 (1978); Hernandez v. Estelle, 788 F.2d 1154 (5th Cir.1986) ("The claim is that the mere failure of the TDC [Texas Department of Corrections] officials to follow their regulations was a constitutional violation. There is no such controlling constitutional principle."). Instead of a constitutional issue, deciding whether an agency is obligated "to follow its own rules and regulations is founded in principles of administrative law." Ogburn-Matthews v. Loblolly Partners (Ricefields Subdivision), 332 S.C. 551, 505 S.E.2d 598, 603 (Ct.App. 1998), overruled on other grounds by Brown v. South Carolina Dept. of Health and Environmental Control, ___ S.C. ___, 560 S.E.2d 410 (2002)

In a traditional agency setting, the principles of administrative law leave the agency with little, if any, discretion in deciding whether to follow the regulations governing that agency. See e.g. Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987) ("DHEC must also follow its own regulations . . . in carrying out the legitimate purposes of the agency."). However, in an inmate context, significant discretion is available to DOC.

For example, even when the inmate holds a constitutionally granted procedural due process right, DOC has discretion to limit that right for rational reasons. See 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'....".). Moreover, given DOC's task of maintaining a orderly prison environment, the exercise of broad discretion is inherent. Indeed, that degree of discretion is such that a reviewing body is essentially concerned with whether DOC's actions are rationally grounded as opposed to arbitrarily based. Al-Shabazz, supra. at 381 (among other concerns, a body charged with reviewing a DOC inmate decision is concerned with whether the "prison officials have acted arbitrarily [or] capriciously . . . Brown [v. Evatt], 322 S.C. [189] at 194, 470 S.E.2d [848] at 851 [(1996)]; Crowe [v. Leeke], 273 S.C. [763] at 764, 259 S.E.2d [614] at 615 [(1979)].")

Thus, if DOC fails to follow a procedural rule, the "principles of administrative law" will not warrant a reversal of or a modification to the appealed order if the failure to follow the procedure is based in reason as opposed to capriciousness. Accordingly, if a rational basis is present for the failure to follow a DOC policy, no reason exists to reverse or modify the DOC decision. ⁽¹⁾

Here, the production of the contraband marijuana at the hearing in a prison setting could present security concerns. Thus, safety reasons warrant not producing the marijuana. Likewise, the length of time of the Prehearing Detention did not impact the hearing on the marijuana charge. For example, no loss of evidence or witnesses has been shown and thus no negative impact on the hearing resulted. Thus, I find no basis for reversing the result reached.

Britt argues the DOC decision must be reversed since the decision is not supported by the evidence. I cannot agree.

In examining a DOC determination for the presence of evidentiary support, an ALJ must review the matter in an appellate capacity. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742. In that capacity, an ALJ reviewing factual disputes between DOC and the inmate "will not substitute [the ALJ's] judgment for that of the [DOC Hearing Officer] as to the weight of the evidence on questions of fact." S.C.Code Ann. § 1-23-380(A)(6) (Supp. 2000).

Thus, once the facts are established by the Hearing Officer, the ALJ will not re-weigh the evidence in an attempt to come to an independent conclusion on the factual dispute. Rather, the ALJ will rely upon the Hearing Officers factual determinations unless such those determinations are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. S.C. Code Ann. § 1-23- 380(A)(6)(e) (Supp. 2000). In determining if substantial evidence supports the Hearing Officer's factual determinations, the ALJ does not look for "a mere scintilla of evidence nor evidence viewed blindly from one side, but [rather looks for ] evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached." Palmetto Alliance, Inc. v. South Carolina Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984). Accordingly, if such evidence is present, substantial evidence is present and the factual determinations will not be overturned.

Here, substantial evidence supports the factual determinations made below. The hearing officer had testimony that Britt had discussed the delivery of a package with a third party. An informant told an investigator that Britt had asked the informant to deliver the marijuana to a third party who was then to deliver the drugs to Broad River Correctional Institute. Further, a taped telephone conversation explains that Britt "talked her [the informant] into picking up something." These determinations would allow reasonable minds to reach the conclusion that Britt committed the act here in dispute. Thus, substantial evidence supports the DOC decision.

The guilty verdict entered by DOC against Barry Britt is AFFIRMED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 15, 2002

Columbia, South Carolina

1. Finding broad discretion in DOC is especially applicable. The General Assembly expressed its intent not to rigidly bind DOC inmate policy decisions since DOC is exempt from the duty to promulgate regulations dealing with the supervision of inmates. See S.C. Code Ann. § 1-23-10(4) (Supp. 2000) (where DOC has no duty to issue inmate supervision "regulations" since such does not include "orders of the supervisory or administrative agency of a penal, . . . institution, in respect to the institutional supervision, custody, control, care, or treatment of inmates, [or] prisoners, . . . .").