ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before the Administrative Law Judge Division ("Division") pursuant to an appeal filed by Roosevelt Isaac
("Appellant") dated May 2, 2000. After this tribunal issued its Order Governing Procedure dated May 31, 2000, the South
Carolina Department of Corrections ("Respondent" or "Department") filed a Motion to Enlarge Time with the Division on
June 16, 2000, to prepare the record in accordance with the Order. On June 27, 2000, this Division issued its Order
enlarging the time for the Department to file the record until August 27, 2000. The record has not been filed with the
Division.
On August 24, 2000, three days prior to the deadline set forth in the Order of June 27, 2000, for filing the record with the
Division, the Department filed a Motion to Dismiss the appeal. Both that issue as well as the Department's failure to
comply with this tribunal's Order are before this court. At no time has the Department asked this court to enlarge the time
for complying fully with its Order of Governance which required the record to be filed. Neither has the Department given
to this court any reasoning for its failure to comply with the Order. The Department is cautioned that it must comply with
all orders of this court to avoid potential sanctions.
This case is an appeal of three final decisions of the Department in disciplinary matters. Prior to February 14, 2000,
inmates wishing to appeal internal disciplinary convictions filed an application for PCR in circuit court within one year of
the disciplinary conviction. See S.C. Code Ann. § 17-27-45(A) (Supp. 2000) (effective July 1, 1995). In Al-Shabazz v.
State, 338 S.C. 354, 527 S.E.2d 742 (2000), however, the South Carolina Supreme Court greatly restricted the use of PCR
by inmates to complain about the conditions of their confinement. Instead of filing a PCR application, a challenge of a
"non-collateral matter" (i.e., a matter in which the inmate does not challenge the validity of a conviction or sentence)
arising out of an inmate grievance is subject to review pursuant to the Administrative Procedures Act ("APA"). The Court
reasoned that "[p]lacing review of these cases within the ambit of the APA will ensure that an inmate receives due process,
which consists of notice, a hearing, and judicial review." 338 S.C. at 369, 527 S.E.2d at 750. The Court, however,
provided that its decision will only apply to:
all PCR actions filed and all administrative matters in which Department renders a final decision after the date of this
opinion. It also shall apply to all cases currently pending in circuit court or before this Court in . . . cases in which
Department has decided a non-collateral or administrative matter and the inmate has not had the opportunity to obtain APA
review in the manner we have outlined.
338 S.C. at 384, 527 S.E.2d at 758. Based on the Court's decision, the Division's jurisdiction to hear inmate appeals does
not extend to cases in which the inmate has not filed a PCR application in circuit court as of February 14, 2000.
The Department asserts in its Motion to Dismiss that the Division lacks jurisdiction because Appellant failed to timely file
with it a copy of his Notice of Appeal. The Supreme Court in Al-Shabazz v. State, supra, described what was required of
an inmate to perfect an appeal through the Division: "The inmate must file and serve a notice of appeal upon specified
parties within thirty days of written notice of the Department's final decision." Id. at 754. See also ALJD Rule 33 (a notice
of appeal to be heard by the Division must be filed with the Division and a copy served on each party and the agency whose
final decision is the subject of the appeal within thirty days of receipt of the agency decision). (1) Therefore, in order to
perfect his appeal, the Appellant was required to file the Notice of Appeal with the Division and to serve a copy of the
notice on the Department.
Appellant filed his Notice of Appeal with the Division on May 2, 2000. A certificate of service dated May 1, 2000,
attached to the filing with this tribunal shows that the Appellant did send a copy of the Notice of Appeal to the Attorney
General for the State of South Carolina on May 1, 2000, and also attempted to serve the Department through its filing with
the Division on May 2, 2000. There is no indication in the record that the Appellant ever served the Department with the
Notice. Moreover, Appellant's attempted service on the Department through the Attorney General or the Division is
insufficient to properly perfect his appeal. There is no statutory provision authorizing the Attorney General or the Division
to accept service of notices of appeal on behalf of the Department in these non-collateral matters.
The failure to timely file a Notice of Appeal deprives a court of appellate jurisdiction. See Dewitt v. South Carolina Dep't
of Highways & Pub. Transp., 274 S.C. 184, 262 S.E.2d 28 (1980) (a circuit court's jurisdiction over a magistrate's decision
is appellate in nature and a circuit court does not have the right to extend the time within which an appeal may be taken
from the magistrate's decision). Because the Division acts as an appellate court in inmate cases filed pursuant to Al-Shabazz, the Division lacks jurisdiction in cases where the inmate fails to timely file a Notice of Appeal with the Division
or, for appeals of Department decisions prior to February 14, 2000, failed to timely file a PCR application with the circuit
court. Since Appellant failed to properly perfect his appeal by serving the Department with a copy of the Notice of Appeal,
this Division lacks jurisdiction over this matter.
Even if Appellant had properly served the Department, the Division would still not have jurisdiction to hear his appeal. In
this instance, Appellant is appealing three final decisions of the Department. They involve disciplinary infractions on
August 4, 1993, November 23, 1993, and December 12, 1993. At that time the sole avenue of appeal of those disciplinary
decisions was to the circuit court. There is no record that Appellant timely filed a PCR application with the circuit court
which would bring those appeals within the jurisdiction of Al-Shabazz. Pursuant to the statutory change in 1995, any
appeal of those decisions would have had to be filed in the circuit court within one year. Since the decisions of the
Department took place prior to February 14, 2000, and the Appellant did not have a PCR application pending in circuit
court, the Division lacks jurisdiction over Appellant's appeal.
For all the foregoing reasons, the Division does not have the jurisdiction to entertain this appeal. Therefore, Respondent's
Motion to Dismiss is granted and Appellant's appeal is dismissed with prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
November 13, 2001
Columbia, South Carolina
APPEAL RIGHTS
You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition for judicial review
in circuit court and serving such petition on opposing parties within thirty (30) days after receipt of this order. S.C. Code
Ann. § 1-23-610 (Supp. 1999). The petition may be filed in any circuit court as long as the chosen forum is neither
arbitrary nor unreasonable, and provided that no statute controls venue in a particular type of case. The review of the
administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand
the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner have
been prejudiced because the finding, conclusion, or decision is: (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.
1. This was the rule of procedure applicable to appeals filed with the Division prior to Al-Shabazz. Since then, the Division adopted
by order temporary rules of procedure for inmate cases, pending approval by the legislature on May 1, 2001, of its permanent rules of
procedure applicable to inmate appeals. |
