ORDERS:
ORDER OF DISMISSAL
On June 16, 2000, the South Carolina Department of Corrections (Department) filed a motion to dismiss this matter. The
Department moved to dismiss the Appellant's claim under SCRCP 12(b)(1), lack of jurisdiction over the claim; SCRCP 12(b)(6),
failure of Appellant to allege facts sufficient to state a claim; Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (S.C. 2000); and
ALJTR 65, for dismissal based on the pleadings.
The Administrative Law Judge Division's (Division) jurisdiction to hear this matter is derived entirely from the decision of the South
Carolina Supreme Court in Al-Shabazz v. State, Op. No. 24995 (S.C. Sup. Ct. filed February 14, 2000) (Shearouse Adv. Sh. No. 6 at
21), 2000 WL 156547. In Al-Shabazz, the Supreme Court created a new avenue by which inmates could seek review of final
decisions of the Department 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 circuit court pursuant to the Administrative
Procedures Act. However, this avenue of relief applies only to
all PCR [post-conviction relief] actions filed and all administrative matters in which
Department [Department of Corrections] renders a final decision after the date of this opinion [February 14, 2000]. It also shall apply
to all cases currently pending in circuit court or before this Court 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.
Al-Shabazz at 45 (Emphasis added).
In this case, the Department rendered its final decision on August 11, 1999, and the Appellant received that decision on June 18, 1999
-- well before the Al-Shabazz case was decided. Moreover, there is no indication that the Appellant appealed the Department's final
decision to Circuit Court. (1)
Accordingly, this Division does not have jurisdiction to entertain the Appellant's appeal, and this matter
is hereby dismissed.
AND IT IS SO ORDERED.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
September 13, 2000
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 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. Even though the Appellant provided proof that this action was filed in United States District Court, District of South Carolina, ( See C/A No. 3:00-0393-23BC, "Report and Recommendation"), this does not preserve the Appellant's appeal in state court under Al-Shabazz. |