SC Administrative Law Court Decisions

I. STATEMENT OF CASE

This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of John Colomb, an inmate incarcerated with the Department of Corrections ("Department") since August 16, 1998. On November 24, 1999, Inmate Colomb was convicted of Failure to Obey Orders for an incident occurring during a shakedown at the Lieber Correctional Institution ("Facility"). As a result of his conviction, Inmate Colomb lost 120 days' "good-time" credit. After his repeated attempts to gain access to his hearing tape failed, Inmate Colomb filed his first grievance with the Department on December 9, 1999, and received the Department's final decision on March 3, 2000. Inmate Colomb then filed a second grievance on March 9, 2000. On April 18, 2000, Inmate Colomb filed this appeal with the Division regarding the Department's final decision to his first grievance. On July 27, 2000, Inmate Colomb received the Department's final decision regarding his second grievance.

II. BACKGROUND

On November 18, 1999, during a cell shakedown, Officer Charles Sambets observed Inmate Colomb chewing on something. Officer Sambets instructed Inmate Colomb to give him what was in Inmate Colomb's mouth. Inmate Colomb refused. A second officer, Sergeant Carder, repeated the directive to Inmate Colomb, who again refused. The officers then observed Inmate Colomb throwing an object, which was later retrieved. After the incident, Officer Sambets completed a Disciplinary Offense Report, charging Inmate Colomb with Refusing to Obey Orders and Use, Possession, Distilling and/or Brewing of Any Alcoholic Beverages. The Report was then forwarded to the Adjustment Committee, which determined that a "major" hearing regarding the incident would be held. Inmate Colomb received written notice of the charge six days before his hearing, which was held on November 24, 1999, before a Disciplinary Hearing Officer ("DHO"). According to the Major Disciplinary Report and Hearing Record ("Hearing Record") prepared by the DHO, the DHO found Inmate Colomb guilty of Refusing to Obey Orders based on the Officer's report that Inmate Colomb refused the order given to him. The Hearing Record also states that Inmate Colomb lost 120 days' good-time credit as a result of the conviction.

On November 27, 1999, Inmate Colomb submitted a Request to Staff Member, addressed to the Facility's Grievance Coordinator, in which he requested to hear the tape of his hearing held three days earlier. On December 2, 1999, Inmate Colomb submitted another Request to Staff Member, this one addressed to Assistant Warden Sheedy, explaining that he had submitted a written request to review the hearing tape and asking for the Warden's assistance in gaining access to that tape before time ran out to file a grievance regarding the matter. That same day, Inmate Colomb submitted an identical Request to Staff Member to Assistant Warden Black. Assistant Warden Sheedy responded promptly, suggesting that Inmate Colomb go ahead and file his grievance before time ran out and then speak with the Grievance Coordinator about the tape. Assistant Warden Black responded on December 14, 1999, four days after Inmate Colomb's grievance was due.

Inmate Colomb filed a grievance on December 9, 1999, appealing his conviction of Refusing to Obey Orders and complaining that he had not been given the opportunity to listen to his hearing tape. On January 7, 2000, Warden Weldon denied his grievance, finding that Inmate Colomb failed to do as he was instructed. In addition, the Warden stated that the Department employee in charge of taking inmate requests to listen to their hearing tapes had no recollection of Inmate Colomb's request. As a result, the Warden stated that Inmate Colomb's claim that he had not been permitted to listen to his hearing tape despite his request to do so could not be substantiated.

On January 11, 2000, Inmate Colomb appealed the Warden's January 7 decision, again complaining that he had not been afforded the opportunity to listen to his hearing tape. In that appeal, Inmate Colomb stated that he had submitted the proper form to be allowed to listen to his tape. The Department denied his grievance, finding that the evidence presented was sufficient to support his conviction and that the sanction imposed was appropriate. In its final decision, the Department did not address Inmate Colomb's claims that he had not been allowed to listen to his hearing tape.

On March 9, 2000, Inmate Colomb filed a second grievance in which he again complained that he had never been afforded the opportunity to listen to his hearing tape and that his due process rights had been violated by the Department during the appeals process. Apparently, several days earlier, after a request by Inmate Colomb that he be contacted by the Inmate Grievance Coordinator, the Department discovered the Request to Staff Inmate Colomb had submitted on November 27, 1999, in which he requested the opportunity to listen to his hearing tape. After discovering the Request, the Department offered Inmate Colomb a chance to listen to the tape, which he accepted on March 31, 2000. In his second grievance, Inmate Colomb requested that his hearing tape be preserved until a resolution could be reached. In response, the Warden apologized for the oversight but denied Inmate Colomb's appeal based on the supporting documentation that Inmate Colomb refused to obey a direct order.

In addition to requesting that his hearing tape be preserved in his second grievance, Inmate Colomb made a second request on March 10, 2000, in a Request to Staff Member he submitted to the Warden. In that Request, Inmate Colomb informed the Warden that he was grieving the appeals process . On March 16, 2000, the Warden responded to that Request by stating that the November 24, 1999, tape would be held only for 180 days from the date of the hearing.

On May 3, 2000, Inmate Colomb appealed the Warden's decision regarding his second grievance, arguing that his due process rights were violated during the appeal stage of his first grievance. He then filed this appeal with the Division with regard to the Department's final decision to his first grievance. He received the Department's final decision to his second grievance on July 27, 2000. In that final decision, the Department denied his grievance, stating that the evidence presented was sufficient to support his November 24, 1999, conviction. The Department made no mention of, and did not dispose of, Inmate Colomb's claim that his due process rights had been violated by the appeals process.

Sometime between March 31, 2000, the day Inmate Colomb listened to his November 24, 1999 hearing tape, and August 5, 2000, the day the Department submitted its Brief in this matter, the Department destroyed the tape of Inmate Colomb's hearing.

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 major prison disciplinary proceedings, the record on appeal must include any transcript taken of the testimony during that proceeding. ALJD Rule TR61, ALJD Rules 35 and 37 (ordering and filing of transcript and record on appeal); See Al-Shabazz, 527 S.E.2d at 754 (record in major prison disciplinary proceedings must include pertinent portions of the tape recording of the hearing or a "properly transcribed record of the hearing.") A proper transcript is particularly necessary whenever an inmate's due process rights may be implicated.

The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz, 527 S.E.2d at 750. An inmate facing the loss of sentence related credits is entitled to minimal due process to ensure that the state-created right is not arbitrarily abrogated. Id. 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, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).

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. 1999); 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.

In the instant case, Inmate Colomb appeals his conviction of Refusing to Obey Orders. ⁽¹⁾ Late in 1999, Inmate Colomb was charged with a major disciplinary offense that carried the possible penalty of loss of good-time credit. As such, Inmate Colomb was afforded a major disciplinary hearing on November 24, 1999. As a result of that hearing, Inmate Colomb was convicted of Refusing to Obey Orders and sanctioned with the loss of 120 days' worth of good-time credit. Without a proper transcript of the disciplinary proceedings before the Department, it is impossible to afford any "meaningful judicial review" of the Department's decision or to determine whether Inmate Colomb was afforded due process during the November 24, 1999, disciplinary hearing.

Accordingly, because the Department can produce neither a transcript nor a tape of Inmate Colomb's November 24, 1999, hearing, ⁽²⁾ I conclude that this case must be remanded to the Department to conduct a contested case hearing pursuant to the Administrative Procedures Act, in which the Department shall provide Inmate Colomb with at least 24 hours' notice of the charges against him; shall afford Inmate Colomb counsel substitute if necessary; and shall afford Inmate Colomb the opportunity to present witnesses and evidence on his own behalf.

IV. ORDER

IT IS THEREFORE ORDERED that the Department conduct a contested case hearing pursuant to the Administrative Procedures Act as outlined above.

AND IT IS SO ORDERED.

_____________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

Columbia, South Carolina

October 26, 2000

1. Although the Record contains Inmate Colomb's second grievance and the Department's corresponding final decision, Inmate Colomb's notice of appeal referenced only the Department's final decision to his first grievance. As such, the Division's right of review is limited to the Department's initial final decision.

2. The Department's destruction of Inmate Colomb's hearing tape is puzzling; on March 10, 2000, nearly a month after the Supreme Court reissued the Al-Shabazz decision, Inmate Colomb requested that the tape, access to which he had been denied for several months, be preserved pending the outcome of his appeal. The Warden responded by stating that the tape would be discarded after 180 days in accordance with Department policy. Moreover, the Department's footnoted explanation for the tape's unavailability in its Brief is a trifle misleading, as it implies that the tape was destroyed prior to Al-Shabazz. The Record reflects that Inmate Colomb listened to the tape of March 31, 2000, more than a month after Al-Shabazz was reissued.