ORDERS:
ORDER OF DISMISSAL
I. STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of
Labon Gray, an inmate incarcerated with the South Carolina Department of Corrections ("Department")
since August 13, 1996. On December 16, 1999, Inmate Gray was convicted of Refusing or Failing to
Obey a Direct Order following an incident occurring on December 4, 1999. As a result of his
conviction, Inmate Gray lost 30 days of "good time." In addition, Inmate Gray failed to earn good time
for the month of December 1999. On December 27, 1999, Inmate Gray filed a grievance with the
Department and received its Final Decision March 3, 2000. Inmate Gray filed this appeal with the
Division on March 16, 2000.
II. FACTUAL BACKGROUND
On December 4, 1999, Inmate Gray was being moved through the tunnel area of Wateree River
Correctional Institution ("Wateree") along with other prisoners, including a number of Youthful
Offenders ("YOIPs"). After she overheard Inmate Gray speaking to one of the YOIPs, Department
Employee Shannon Diggs instructed Inmate Gray not to speak to the YOIPs. Inmate Gray continued to
speak to a YOIP. Apparently, another Department employee also instructed Inmate Gray not to speak to
the YOIPs. Again, Inmate Gray refused and continued to speak to a YOIP. Later that day, Inmate Gray
had a conversation with another Department employee, Lt. Dukes, in which Inmate Gray admitted
speaking to a YOIP.
After the incident, Officer Diggs completed a Disciplinary Offense Report ("Report"), charging Inmate
Gray with Refusing or Failing to Obey a Direct Order under Offense Code 2.13. The Report was then
forwarded to Officer Diggs' supervisor, who recommended that a Major Disciplinary Hearing
("Hearing") be held regarding the charge. Inmate Gray was informed of the charge on December 7,
1999. Inmate Gray's Hearing was held before a Disciplinary Hearing Officer ("DHO") on December
16, 1999. At that Hearing, Inmate Gray, through his Counsel Substitute, was permitted to cross-examine Officer Diggs regarding the incident. In addition, Inmate Gray was given the opportunity to
present his defense. At the conclusion of the Hearing, the DHO excused Inmate Gray so that the DHO
could review all of the evidence. A few minutes later, Inmate Gray was brought back into the Hearing
room. The DHO then informed him that he had been found guilty of Refusing or Failing to Obey a
Direct Order and that he would be sanctioned with the loss of 30 days of good time. After the Hearing,
the DHO prepared a Major Disciplinary Report and Hearing Record ("Record"), which stated that the
DHO relied upon Officer Diggs' Report and the testimony of Lt. Dukes.
On December 27, 1999, Inmate Gray appealed his conviction on several grounds:(1) he was denied an
opportunity to listen to a tape of his Hearing prior to filing his appeal; (2) the DHO abused his
discretion; (3) the Hearing was held over seven days after Inmate Gray was charged without
explanation; (4) he was not given the opportunity to cross-examine Lt. Dukes; (5) there was no evidence
that the order he was given was legitimate order; and (6) such an order violated his First Amendment
rights. After receiving Warden Carmichael's decision affirming the DHO's determination, Inmate Gray
appealed to the Department. In that appeal, Inmate Gray essentially asserted the he was denied due
process when the Department failed to follow its own policies regarding inmate disciplinary hearings.
In addition, Inmate Gray asserted that Officer Diggs' order was not legitimate because talking to YOIPs
did not violate a Department policy or procedure. On February 22, 2000, the Department issued its
Final Decision denying Inmate Gray's grievance.
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. In its appellate capacity, the Division is primarily concerned with ensuring that the
appellants receive all procedural process they are due.
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. 2000); 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.
IV. DISCUSSION
The Fourteenth Amendment's guarantee of procedural due process applies only to the deprivation of a
life, liberty, or property interest. Board of Regents of State College v. Roth, 408 U.S. 564, 569, 92 S. Ct.
2701, 2705 (1972). The statutory right to sentence-related credits is a protected liberty interest under
the Fourteenth Amendment. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (1974); Al-Shabazz v.
State, 338 S.C. at 369-370, 527 S.E.2d at 750. However, an inmate has no liberty interest in sentence-related credits that have not yet been earned. See Luken v. Scott, 71 F.3d 192 (5th Cir. 1995) (mere
opportunity to earn good-time credits does not constitute a constitutionally cognizable liberty interest
sufficient to trigger the protection of the Due Process Clause), citing Sandin v. Conner, 515 U.S. 472,
115 S. Ct. 2293 (1995) (where state's action does not "inevitably affect the duration of [the inmate's]
sentence," no constitutionally cognizable liberty interest exists). An inmate facing the loss of earned
sentence-related credits is entitled to minimal due process to ensure that the state-created right is not
arbitrarily abrogated. Al-Shabazz v. State, 338 S.C. at 370, 527 S.E.2d at 750. 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, 338 S.C.
371, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82
(1974).
In the instant case, Inmate Gray received written notification of the charge of Failing or Refusing to
Obey a Direct Order nine days before his Hearing, in which Inmate Gray was represented by counsel
substitute. In that Hearing, Inmate Gray was permitted to make a statement and, through counsel
substitute, to cross-examine his accuser, Officer Diggs. After the Hearing, the DHO, who had no role in
charging Inmate Gray with the offense, prepared a written record of the proceedings. In that Record, the
DHO noted that he relied on Officer Diggs' report and the testimony of Lt. Dukes. As such, the
Hearing provided to Inmate Gray comported with the due process requirements set forth in Wolff and Al-Shabazz.
In addition to asserting that the Department failed to follow its own policies and procedures for the
proper conduct of a Major Disciplinary Hearing, Inmate Gray asserts that the DHO's taking of Lt.
Dukes' testimony outside of Inmate Gray's presence violated his due process rights because he was not
given an opportunity to cross-examine Lt. Dukes. Although both Wolff and Al-Shabazz hold that
inmates may be entitled to cross-examine their accusers in some cases, neither Wolff nor Al-Shabazz holds that inmates have a due process right to cross-examine mere witnesses. As such, I find that
Inmate Gray was afforded all process that he was due.
Moreover, I find that there was substantial evidence for the DHO's decision. In his Record, the DHO
noted his reliance on Officer Diggs' Report and Lt. Dukes' testimony. In addition, although Inmate
Gray argues that the DHO had no evidence to conclude that the order given Inmate Gray was legitimate
and that such an order violated his free-speech rights, I find that Officer Diggs' order that Inmate Gray
not talk to the YOIPs was legitimate and non-violative of the First Amendment. Although the
Department has no written policy or procedure that prohibits general population inmates from
associating with YOIPs, such a prohibition is reasonably related to the Department's interest in keeping
inmates of different security classifications separated. Because the Department's restriction on Inmate
Gray's right to communicate with other inmates is "reasonably related to legitimate penological
interests," Turner v. Safley, 482 U.S. 78, 89 (1987), Officer Diggs' order did not violate Inmate Gray's
First Amendment rights. As such, the Department's Final Decision is AFFIRMED.
IT IS THEREFORE ORDERED that the appeal of Inmate Gray is DISMISSED, and the Final
Decision of the Department is hereby AFFIRMED.
AND IT IS SO ORDERED.
____________________________________
JOHN D. GEATHERS
Administrative Law Judge
P.O. Box 11667
Columbia, South Carolina 29211
May 8, 2001
Columbia, South Carolina |
