ORDERS:
ORDER ON RECONSIDERATION
Grievance No. McCI-0306-00
I. Introduction
On March 22, 2001, an Order dismissed an appeal by Thomas M. Stutts
(Stutts) on the ground that Stutts failed to timely file his Notice of
Appeal. However, on April 12, 2001, the March 22, 2001 order was suspended
pending review of a Motion to Reconsider filed by Stutts. The April 12,
2001 Order directed the South Carolina Department of Corrections (DOC)
and Stutts to brief the issue of whether DOC's procedures unreasonably
prevent an inmate from meeting the obligation to file an appeal within
30 days of receipt of the final DOC decision.
Based on the presentations of both parties, I conclude that there has
been no showing that the procedures at McCormick Correctional Institution
unreasonably prevent an inmate from meeting the obligation to file an appeal
within 30 days of receipt of the final DOC decision. In any event, the
late filing of the Notice of Appeal for any reason deprives the ALJD of
jurisdiction over an inmate's appeal. Accordingly, Stutts' motion for reconsideration
must be denied.
II. Analysis
A. Factual Background
During the time period applicable to this appeal, the policy in effect
at the institute housing Stutts (McCormick Correctional Institution) was
DOC's policy GA-01.12, Specific Procedures 14.d. That policy provides that
the responsible official for DOC must render a final decision on a grievance
and then provide that decision to the Institutional Inmate Grievance Coordinator.
The Coordinator forwards the final decision to the inmate who signs the
decision acknowledging receipt.
DOC's policy GA-01.12, Specific Procedures 14.f. was also in effect
for Stutts. That policy provides that the inmate will be notified of his
right to appeal to the Administrative Law Judge Division and of his duty
to file and serve any such appeal within 30 days after receipt of the final
DOC decision. The notice to the inmate includes a Notice of Appeal form
to be used in the appeal to the ALJD.
How this policy is carried out at McCormick Correctional Institute involves
the following steps:
1. The original Step 1 & 2 and "Notice of Appeal" form are placed
in an envelope with a notification slip attached to the envelope.
2. The inmate signs and dates the notification slip and he maintains
possession of the envelope and its contents. The notification slip indicating
the date of the inmate's receipt is returned to the Inmate Grievance Coordinator.
3. The inmate is required to sign and date the bottom of Step 2 acknowledging
receipt of the final agency decision. The inmate is then required to return
the Step 1 & 2 form to the Inmate Grievance Coordinator by a designated
due date, so that a copy can be made of a completed Step 2 for DOC's files.
The inmate is informed in writing that failure to sign and return the form
will result in termination of his grievance.
4. Original Step 1 & 2 are returned to the inmate after a copy is
made for DOC's records.
In this case, Stutts acknowledged receipt of an envelope containing
the final DOC decision on October 18, 2000. On October 21, 2000, Stutts
signed the bottom of the Step 2 form acknowledging receipt of the final
decision. Stutts was required to return the final decision to the Inmate
Grievance Coordinator by October 23, 2000. On that date, the Inmate Grievance
Coordinator (Coordinator) received the "signed for" final decision and
then made copies for the DOC files. The Coordinator returned the final
decision to Stutts on October 31, 2000. Stutts then attached the decision
to his Notice of Appeal and filed both documents with the ALJD on November
30, 2000.
B. Applicable Law
An inmate has 30 days from the date of receipt of DOC's final decision
in which to appeal to the ALJD. See ALJD Rule 59 ("The notice of
appeal from the final decision of DOC . . . shall be filed with the Division
and a copy served on each party and DOC within thirty (30) days of receipt
of the decision from which the appeal is taken."); see also policy
GA-01.12, Specific Procedures 14.f. (". . . any further appeal must be
initiated with 30 days after receipt of the Department's final answer.").
If the appeal is not filed and served within that period, the adjudicating
body has no authority to decide the matter. Botany Bay Marina, Inc.
v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988), overruled
on other grounds, 460 S.E.2d 392 (1995); Burnett v. S.C. Highway
Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969). Hence, a late filing
ends the appeal and prohibits the inmate from successfully accessing the
adjudication process.
Stutts argues that he could not begin perfecting his appeal until the
Coordinator returned the DOC final decision to him on October 31, 2000,
and thus the thirty day period should not have started running until that
event occurred. I cannot agree.
Nothing before me suggests that inmates at McCormick Correctional Institute
do not have a reasonable means of copying legal documents for their own
personal use. No assertion contents that DOC employees prevented Stutts
from making copies of the final decision and Notice of Appeal form (or
that they refused to make copies for him) during the time between Stutts'
receiving these documents on October 18 and returning them to the Coordinator
on October 23.
In fact, nothing before me indicates that Stutts even attempted to have
the final decision and Notice of Appeal form copied before returning them
to the Coordinator. If Stutts had made copies of these documents before
returning them to the Coordinator on October 23, he would have had the
materials necessary to begin perfecting his appeal to the ALJD. No applicable
authority prohibits an inmate from copying the Notice of Appeal form provided
by DOC and completing that copied form for filing with the Division. Further,
the original DOC final decision does not have to be attached
to the Notice of Appeal, but rather a copy of it will suffice.
ALJD Rule 59© ("The notice [of appeal] . . . shall contain the following
information: . . . a copy of the final decision which is
the subject of the appeal . . . .") (emphasis added). Therefore, DOC's
procedures did not unreasonably prevent Stutts from filing his appeal within
thirty days of receipt of DOC's final decision.
Even if DOC's procedures had unreasonably prevented Stutts from timely
filing and serving the Notice of Appeal, the remedy for such harm could
not come from the ALJD. Rather, a failure to meet the Notice of Appeal's
filing and service deadline for any reason deprives the ALJD of jurisdiction
over the case. Botany Bay Marina, Inc. v. Townsend, 296 S.C.
330, 372 S.E.2d 584 (1988), overruled on other grounds, 460 S.E.2d
392 (1995); Burnett v. S.C. Highway Dep't, 252 S.C. 568,
167 S.E.2d 571 (1969). Rather, any allegation that DOC has violated an
inmate's right of access to the courts or right to petition the government
for redress of grievances may be evaluated (and if found to have merit,
remedied) through an action under 42 U.S.C. § 1983 in another forum. (1)
The ALJ recognizes the harsh result of this decision but is constrained
by the rules of the ALJD and by legal precedent in this State. See McClain
v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994) (recognizing harsh
result of dismissing a case where the appellant filed a summons and complaint
after serving the other party instead of filing the summons and complaint
before such service, as required by SCRCP 5(d)).
III. Order
Stutts' appeal must be dismissed for lack of jurisdiction due to a late
filing of the Notice of Appeal.
AND IT IS SO ORDERED
______________________________
RAY N. STEVENS
Administrative Law Judge
Dated: September 17, 2001
Columbia, South Carolina
1. The right of meaningful access to the courts extends
to established prison grievance procedures. . . . The "government" to which
the First Amendment guarantees a right of redress of grievances includes
the prison authorities, as it includes other administrative arms and units
of government.
Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.
1995) (citations omitted). |
