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SC Administrative Law Court Decisions

Alvin Owens, #126846 vs. SCDOC

South Carolina Department of Corrections

Alvin Owens, #126846

South Carolina Department of Corrections



Grievance No. LEE-176-98

This matter is before me on appeal of Appellant Alvin Owens, #126846, filed with the Administrative Law Judge Division ("ALJD") on April 25, 2000. Appellant Owens requests a determination that he complied with the internal grievance procedure of the South Carolina Department of Corrections ("DOC") in appealing the decision of the DOC, as well as review by the ALJD of his grievance. The DOC moved to dismiss Appellant's claim under S. C. Rules of Civil Procedure 12(b)(1), lack of jurisdiction over the claim; SCRCP 12(b)(6), failure of Appellant to allege facts sufficient to state a claim; ALJDTR 65, failure to comply with the rules; and ALJDTR 62, notice of appeal. Appellant Owens responded by citing a good faith effort to resolve the issues within the DOC and requested that the ALJD hear his appeal.

The ALJD has jurisdiction over inmate grievances filed after Feb. 14, 2000 [the date of Al-Shabazz v. State] or inmate appeals that were pending in circuit court prior to Feb. 14, 2000. In Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, at 755 (2000), Appellant must prove pending circuit court review. It is undisputed that review of Appellant Owens' claim was not pending in circuit court prior to the filing of the claim with the ALJD.

An appeal is presumed abandoned if it is not filed within the prescribed time frame. Ingram v. Hughes, 170 S.C. 1, 169 S.E. 425 (1933); see also 5 C.J.S. Appeal and Error § 657 (1993). A court retains no appellate jurisdiction over an abandoned appeal. 5 C.J.S. Appeal and Error § 658 (1993). On June 11, 1998, the DOC gave Owens a Step 2 form, which is used to appeal a warden's determination in a grievance matter. Owens had five days to appeal the determination. Although Owens asserts he filed the grievance within the five-day period, the DOC notified Owens twice, on September 15, 1998, and October 12, 1998, that his grievance was never received. Owens refiled the grievance Feb. 7, 2000, which is the basis of his appeal to the ALJD, and the DOC returned the grievance as unprocessed for failure to file within the five-day period. The DOC considered the matter closed.

Appellant Owens contends in his response that the DOC lost his Step 2 appeal and that he has attempted in good faith to pursue his appeal within the channels of the DOC; however, Owens presented no evidence to support his claim. An appellant has the burden of providing a sufficient record to permit review by an appellate court; in the absence of this record, the claimed error cannot be considered on appeal. Bonaparte v. Floyd, 291 S.C. 427, 354 S.E.2d 40 (Ct. App. 1987). Appellant must state facts sufficient to support a claim. SCRCP 12(b)(6). In the absence of substantial evidence showing arbitrariness or capriciousness, the ALJD cannot substitute its judgment for that of the DOC. Griggs v. Hodge, 229 S.C. 245, 92 S.E.2d 654 (1956).

IT IS THEREFORE ORDERED that Respondent's motion is granted and that the appeal of Appellant Alvin Owens, Docket Number 00-ALJ-04-00165, is hereby dismissed.





July 27, 2000

Columbia, South Carolina

Brown Bldg.






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