ORDERS:
ORDER OF REMAND
This matter is before the Administrative Law Judge Division ("Division") pursuant to Appellant's Notice of Appeal filed May 16,
2000.
In 1999, Appellant appealed an inmate grievance matter, Grievance No. 192-99, to the Division. The Clerk of the Division assigned
the case as Docket No. 99-ALJ-04-0180-AP. In an order dated June 16, 1999, the undersigned dismissed Appellant's case for lack of
subject matter jurisdiction. As of June 16, 1999, the Division in fact did not have jurisdiction over appeals of inmate grievances. The
Division only has jurisdiction over inmate appeals as a result of the South Carolina Supreme Court's opinion in Al-Shabazz v. State,
338 S.C. 354, 527 S.E.2d 742 (2000), which was filed on February 14, 2000.
On March 22, 2000, Appellant filed a Motion for Relief from Judgment and Order pursuant to Rule 60, SCRCP, asking the
undersigned to vacate the order of June 16, 1999, in light of Al-Shabazz. Because the Division did not have subject matter
jurisdiction at the time that the undersigned issued the order of dismissal on June 16, 1999, Appellant's Motion for Relief from
Judgment and Order should be denied.
The refusal to vacate the order of June 16, 1999, however, does not deny Appellant relief regarding his grievance. Appellant had a
case pending in circuit court, 99-CP-40-2664, at the time of the first Al-Shabazz decision, filed August 23, 1999. On October 7,
1999, the circuit court remanded Appellant's case to Respondent to "conduct the appropriate disciplinary hearing consistent with Wolff v. McDonald and as outlined in Al-Shabazz v. State." On October 18, 1999, Appellant filed a Step 1 Inmate Grievance Form
referencing the circuit court's order and asking for a reduction of his "max-out date" and consideration of earned education credits.
Respondent replied "This grievance is a duplicate to #192-99 which was denied on 6/16/99 by the central office. You have received
several responses from Columbia concerning this issue, I can find no reason to re-open this issue." Respondent did not hold a
hearing.
Appellant also had a case pending in the South Carolina Supreme Court at the time of the second Al-Shabazz decision, filed February
14, 2000. On April 12, 2000, Appellant again filed a Step 1 Inmate Grievance Form requesting consideration of earned education
credits and immediate release from custody. On April 20, 2000, the South Carolina Supreme Court remanded Appellant's case to
Respondent "for further proceedings pursuant to Al-Shabazz." Respondent issued a decision on May 5, 2000, providing:
This is a DUPLICATE GRIEVANCE to your Grev. #192-99 and is being returned to you NON-PROCESSED. Also spoke with
General Counsel, Attorney William Collins, Jr. in reference to your case being remanded back to SCDC and he stated that you need
to submit a Notice to Appeal Application with all your attachments/backup to the ALJD in Columbia.
Respondent again did not hold a hearing. On May 16, 2000, Appellant filed a Notice of Appeal with the Division. The Clerk of the
Division assigned this case to the undersigned as Docket No. 00-ALJ-04-00137-AP.
According to Al-Shabazz, the Division has jurisdiction to hear non-collateral or administrative matters in post-conviction relief
actions filed, in final decisions rendered by Respondent after February 14, 2000, and in cases pending in a circuit court or the South
Carolina Supreme Court on February 14, 2000, where the inmate has not had the opportunity to obtain APA review. Because
Appellant had a case pending in the South Carolina Supreme Court on February 14, 2000, the Division has jurisdiction over
Appellant's case Docket No. 00-ALJ-04-00137-AP.
As outlined in this opinion, Respondent failed to hold a hearing pursuant to Al-Shabazz when ordered by the circuit court and again
failed to do so when ordered by the South Carolina Supreme Court. Although Respondent conducted a hearing on Grievance No.
192-99, Respondent provided no proof at any time that the hearing complied with the mandates of Al-Shabazz. Respondent,
therefore, must hold a new hearing in compliance with Al-Shabazz regarding Appellant's claims in Grievance No. 192-99.
IT IS HEREBY ORDERED that Appellant's Motion for Relief from Judgment and Order filed March 22, 2000, is denied.
IT IS FURTHER ORDERED that this appeal is remanded to Respondent to hold a hearing within sixty (60) days of the date of this
order.
IT IS FURTHER ORDERED that Respondent must file a copy of its written decision with the Division within sixty (60) days of
the date of the hearing, wherein Respondent specifically must address the issue of whether earned educational credits and bonus
educational credits should apply to reduce Appellant's time of incarceration.
IT IS FURTHER ORDERED that, whereas the undersigned has remanded this case for a new hearing, all other motions filed in this
case are denied.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
November 1, 2000
Columbia, South Carolina |
