ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before the Administrative Law Judge Division ("Division") pursuant to South Carolina Department of Corrections'
("Respondent" or "Department") Motion to Dismiss filed August 14, 2000. Respondent seeks a dismissal on the grounds that the
Appellant refused to cooperate in the resolution of the Step 1 grievance, and, therefore, has not exhausted his administrative remedies.
Respondent seeks this dismissal under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), Rule 12(b)(1), SCRCP, lack of
jurisdiction, and Rule 12(b)(6), SCRCP, failure of Appellant to state facts sufficient to constitute a cause of action.
Appellant filed a Step 1 Grievance with the Department on April 19, 2000. Appellant asserted that a package addressed to him was
delivered to the Broad River Institution on March 20, 2000. This package was delivered by UPS and was signed for by L. Perry.
However, Appellant never received this package which contained magazines. In the Step 1 Grievance, Appellant requested that the
magazines be replaced. The Step 1 Grievance indicates that the Inmate Grievance Coordinator ("IGC") requested that Appellant
provide him with the amount of the purchase price of the magazines and the amount of the postage so that the Department could
reimburse Appellant. The Step 1 Grievance further indicates that Appellant refused to provide this information to the Department .
The Department closed the grievance without a decision on its merits. Furthermore, there is no evidence that Appellant filed a Step 2
Grievance.
The Administrative Procedures Act provides for judicial review of agency action upon exhaustion of administrative remedies. See S.C. Code Ann. §§ 1-23-310 et seq., Matter of Chrisanthis, 315 S.C. 382, 434 S.E.2d 254 (1990). The question of whether
exhaustion of administrative remedies is required is a matter within the sound discretion of the court that will not be disturbed on
appeal absent an abuse of that discretion. Smith v. South Carolina Retirement System, 336 SC 505, 520 S.E.2d 339 (1999). I find
that Appellant has not exhausted his administrative remedies because there is no evidence that he filed a Step 2 Grievance with the
Department. Therefore, the Respondent's Motion to Dismiss is granted.
IT IS HEREBY ORDERED that, based on the evidence submitted, Respondent's Motion to Dismiss is granted.
AND IT IS SO ORDERED.
________________________________
C. Dukes Scott
Administrative Law Judge
September 26, 2000
Columbia, SC |
