ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Timothy Akers, an inmate
incarcerated with the Department of Corrections ("Department") since November 16, 1992. On February 2, 2000, Inmate Akers was
convicted of Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs after testing positive for marijuana during a random
drug test administered on January 26, 2000, at Kershaw Correctional Institution ("Facility"). As a result of his conviction, Inmate
Akers lost 240 days of "good-time" credit. Inmate Akers filed a grievance with the Department on February 6, 2000, and received
the Department's final decision on May 9, 2000. On May 15, 2000, Inmate Akers filed this appeal.
II. BACKGROUND
On January 26, 2000, Inmate Akers was randomly selected to be drug tested and provided a urine sample to Corporal Merritts.
Inmate Akers' sample tested positive for marijuana. Inmate Akers may or may not have declined a confirmation test. Nevertheless,
Inmate Akers' urine sample was sent to an independent laboratory and was ultimately found to test positive for marijuana. After the
incident, Sergeant Barker, who witnessed the testing of Inmate Akers' urine sample, completed an Disciplinary Offense Report,
charging Inmate Akers with Use or Possession of Narcotics, Marijuana or Unauthorized Drugs. The Report was then forwarded to
Sgt. Barker's supervisor, who determined that a "major" hearing regarding the incident would be held. Inmate Akers was placed in
deadlock and received written notice of the charge five days before his hearing, which was held on February 2, 2000, 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 Akers guilty of Use or Possession of Narcotics, Marijuana or Unauthorized Drugs
based on the positive results for marijuana of both the initial drug test conducted at the Facility and the confirmation drug tests
performed at an independent laboratory. In addition, after listing the medications Inmate Akers stated he was taking, the DHO noted
in the Hearing Record that, according to the Facility's nurse, none of those medications would cause a false positive for marijuana.
Finally, the Hearing Record reflects that Inmate Akers lost 240 days of good-time credit as a result of the conviction.
Inmate Akers filed a grievance on February 6, 2000, appealing his conviction of Use or Possession of Narcotics, Marijuana or
Unauthorized Drugs and arguing that the DHO failed to consider his use of six different medications and his exposure to second-hand
smoke in determining his guilt. On February 16, 2000, the warden denied the grievance, finding that Inmate Akers tested positive for
marijuana use. On February 25, 2000, Inmate Akers appealed the warden's February 16 decision, repeating the arguments that his
several medications, in combination with the exposure to second-hand marijuana smoke, could cause a false positive for marijuana.
In that appeal, Inmate Akers also stated that he was denied a blood test and requested a room assignment with a non-smoker. The
Department denied his grievance, finding that the evidence presented was sufficient to support his conviction and that the sanction
imposed was appropriate. This appeal followed. In his Notice of Appeal, Inmate Akers implies that the punishment rendered, 240
days of lost time, exceeded the statutory maximum for the same offense occurring outside of a prison.
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.
The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz, 338 S.C.
at 369-370, 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.
I find that Inmate Akers was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Inmate Akers received
written notice of the charge in excess of twenty-four hours prior to a hearing that was held before an impartial hearing officer and in
which he was able, through counsel substitute, to offer evidence. Inmate Akers was afforded the opportunity to confront his accuser.
The Hearing Record reflects that the DHO consulted with the Facility nurse, who stated that none of the medications identified by
Inmate Akers could create or cause a false positive. The Hearing Record also reflects that the DHO found Inmate Akers guilty of the
charge based on two positive test results and informed him of such via Form 19-70. After his conviction, Inmate Akers filed a
grievance and received a prompt response from his warden, which Inmate Akers then appealed to the Department. In its denial of his
appeal, the Department informed Inmate Akers that he had the right to appeal the Department's final decision under the
Administrative Procedures Act. Clearly, with respect to Inmate Akers' conviction of the charge of Use or Possession of Narcotics,
Marijuana, or Unauthorized Drugs, the Department provided all process contemplated by both the United States Supreme Court in Wolff and the South Carolina Supreme Court in Al-Shabazz.
Moreover, I find that there is substantial evidence to support Inmate Akers' conviction of Use or Possession of Narcotics, Marijuana,
or Unauthorized Drugs. A urine sample obtained from Inmate Akers tested positive for marijuana using at least two separate drug
tests. Inmate Akers provided no evidence that the medications he was taking, specifically prednisone, ibuprofen, Sudafed, Keflex,
Bactrim/Septra, and Beconase, could cause a urine sample to test positive for marijuana. In addition, although he claims to have been
exposed to second-hand marijuana smoke, Inmate Akers provided no evidence that such exposure could cause a non-smoker to test
positive for marijuana. Therefore, I affirm the Department's final decision regarding Inmate Akers' conviction.
Finally, I find that Inmate Akers' implication that the penalty imposed by the DHO is somehow unconstitutional because it exceeds
the penalty for the same offense if committed while not incarcerated is without merit. It is true that South Carolina's Code of Laws
has criminalized only the possession and distribution of marijuana, not its use. However, the Department has the power to "prescribe
reasonable rules and regulations governing the ... discipline of prisoners." S.C. Code Ann. § 24-1-140 (1999). Certainly that power
would encompass the prohibition of the possession and use of illicit drugs as found in Policy GA-03.03, Inmate Drug
Testing/Screening Program, which provides:
"inmates convicted of [use or possession of narcotics, marijuana, or unauthorized drugs] will be subject to the following sanctions:
1. Loss of 240 days of good time at a minimum[.]Department Policy/Procedure GA-03.03 (1998).
Clearly, the penalty assessed by the DHO is prescribed by Department policy. Given the Department's duty to provide "an orderly
and reasonably safe prison life" to all inmates and staff, see Wolff, 418 U.S. at 561-62, I cannot find that the loss of 240 days of good
time is an inappropriate penalty in this case. Therefore, I affirm the Department's final decision regarding the penalty assessed to
Inmate Akers as a result of his conviction.
IV. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department be AFFIRMED;
IT IS FURTHER ORDERED that the appeal of Inmate Akers be DISMISSED.
AND IT IS SO ORDERED.
________________________________
RAY N. STEVENS
Administrative Law Judge
December 4, 2000
Columbia, South Carolina |
