ORDERS:
ORDER OF REMAND
GRIEVANCE NO. PCI-0224-00
On June 30, 2000, the Respondent South Carolina Department of Corrections (Department) filed with this tribunal the record in the
above-captioned matter. The Appellant has appealed the final decision of the Department that prison officials properly confiscated
(1) a headset because it contained a metal band, and (2) a radio because it had recording capabilities. Appellant contends that (1) the
headset was improperly confiscated because it was purchased from the prison Canteen and constituted authorized property, (2) the
radio was supposed to be stored with the microphone disconnected without recording capabilities, and, in any event, (3) the
confiscated property was grandfathered and therefore improperly seized. See S.C. Dep't of Corrections, Authorized Inmate Property
and Unauthorized Property Disposition, Policy No. OP-22.03(OP), at 8 &12. Having carefully reviewed the record, upon its own
motion, this tribunal orders that this matter be remanded to the Department on the grounds that the record is insufficient for this
tribunal to make an intelligent review.
This tribunal has subject matter jurisdiction over this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000); see Administrative Procedures Act, S.C. Code Ann. §§ 1-23-320 to -370 (1986 & Supp.1999). The S.C. Supreme Court in Al-Shabazz stated that the "Department's disciplinary and grievance procedures comply with the minimal due process required in such
proceedings." Id. Further, the Court stated that "[t]he grievance procedure [the] Department has established is sufficient to give an
inmate a method to raise the matter to prison officials and create a reviewable record." Id. The record "must contain, among other
things, all pleadings, evidence received or considered, and the final order . . . " Id. In major disciplinary proceedings, the record must
include pertinent portions of the tape recording of the hearing or a properly transcribed record of the hearing. Id.
In this case, Appellant claims that the Department improperly confiscated property including a radio and a headset. This matter
involves a major disciplinary proceeding, and the Department has failed to file with this tribunal a properly transcribed record.
Although the appellant normally has the burden to provide the appellate tribunal with a sufficient record, in this case, through no fault
of his own, Appellant cannot obtain a transcript of the proceedings below. Without a sufficient record of the proceedings before the
Department, it would be impossible for this tribunal to make "an intelligent review." See Hamilton v. Greyhound Lines East, 281
S.C. 442, 444, 316 S.E.2d 368 (1984); Germain v. Nichol, 278 S.C. 508, 299 S.E.2d 335 (1983); see also State v. Barbee, 280 S.C.
328, 313 S.E.2d 297 (1984) (it was clearly error for the circuit court to hear an appeal in the absence of a record filed by the
magistrate); Thomas v. Thomas, 286 S.C. 294, 333 S.E.2d 76 (Ct. App.1985) (inadequate record for appellate review).
Since the record is insufficient for an appellate tribunal to make an "intelligent review," this case must be remanded to the
Department to conduct a hearing and make further findings and rulings to make a reviewable record. See D. Shipley, S.C.
Administrative Law 7-57 (2d ed. 1989); see also Snider v. S.C. Residential Builders Comm'n, 98-ALJ-11-0394-AP (Nov. 13, 1998)
(it was necessary to remand for a new contested case hearing where the record did not contain a tape recording of the underlying
hearing and the tape was destroyed before the transcipt could be made).
IT IS THEREFORE ORDERED that this case is REMANDED to the Department to conduct, within thirty (30) days of the date of
this Order, a hearing and make a transcribed record of the hearing sufficient for appellate rerview by this tribunal. Alternatively, the
Department may grant the Appellant the relief requested on the inmate grievance form in lieu of conducting a new hearing
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 24, 2000
Columbia, South Carolina |
