South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Dale Booker, #239895 vs. SCDOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
Dale Booker, #239895

Respondent:
South Carolina Department of Corrections
 
DOCKET NUMBER:
00-ALJ-04-00329-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

I. INTRODUCTION

This matter comes before the Administrative Law Judge Division ("Division") pursuant to the appeal of Dale Booker, an inmate incarcerated with the Department of Corrections ("Department") since July 20, 1999. On July 23, 1999, Inmate Booker, together with his brother and mother, conspired to bring two ounces of marijuana into Lieber Correctional Institution ("Lieber"). As a result, Inmate Booker was convicted of Any Act Defined As A Felony by the Laws of the State of South Carolina, Disciplinary Code 1.13, and placed in Category Two Cell Restriction. In addition, Inmate Booker's canteen and general visitation privileges were suspended. On January 28, 2000, Inmate Booker filed a grievance with the Department, alleging that his general visitation privileges were suspended in violation of Department policy. Inmate Booker received the Department's Final Decision on May 17, 2000, and filed this appeal with the Division on June 1, 2000.

According to Inmate Booker, Department Policy/Procedure OP-22.09(10)(4) requires that the warden notify both the affected inmate and his approved visitors of the suspension via completion of Department Form 7-1. Section 10 of Policy/Procedure OP-22.09, entitled "Suspension of Visitation Privileges," contains mandatory provisions that apply to all visitors. OP-22.09(10)a. Section 10(4) states, in part, that "all visitors who have had their visitation and/or telephone privileges suspended will be notified of their suspension(s) and the length of their suspension by the Warden... ." OP-22.09(10)(4)(a). When such visitors have their visitation suspended, "the warden will complete [Department] Form 7.1, "Letter of Visitation and/or Telephone Suspension," and will forward it to the visitor... ." OP-22.09(10)(4)(b). Finally, an inmate is given the right to appeal the warden's decision to suspend a visitor and his/her telephone privileges with any visitor through the Inmate Grievance System. OP-22.09(10)(4)(d).

II. STANDARD OF REVIEW

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. In its appellate capacity, the Division is primarily concerned with ensuring that the appellants receive all procedural process they are due.

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.

III. DISCUSSION

The Fourteenth Amendment's guarantee of procedural due process applies only to the deprivation of a life, liberty, or property interest. Board of Regents of State College v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972). Protected liberty interests may arise from either the Due Process Clause or the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466 (1983). Because the denial of prison visitation is "well within the terms of confinement ordinarily contemplated by a prison sentence," it is not a liberty interest protected by the Due Process Clause. See Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989). Absent a Fourteenth Amendment right to visitation, an inmate challenging the restriction of his visitation is entitled to relief only if the state created a liberty interest in visitation. Id. at 461.

In the instant case, Inmate Booker argues that the Department denied him visitation without due process of law when it suspended his visitation privileges without notifying Inmate Booker and his general visitors of the conditions of the suspension via Form 7-1. However, neither the State of South Carolina nor the Department has created such an interest in visitation. Instead, the Department's policies unequivocally support the opposite conclusion. See Department Policy/Procedure OP-22.09, Policy Directive 8 ("inmate visitation with family and friends is considered a privilege and is not a guaranteed right").

Moreover, the Department policies that Inmate Booker cites in support of his grievances and this appeal apply not to the suspension of an inmate's privileges, but to the suspension of a visitor's privilege to visit an inmate. A warden's duty to complete Form 7-1 arises out of the suspension of a visitor's privileges only. Department policies and procedures do not require that an inmate and his visitors be notified if the inmate's privileges have been suspended. Accordingly, I find that Inmate Booker has no protected interest in visitation. Therefore, Inmate Booker is entitled to no process before the Department places limitations on such privileges.

IV. ORDER

IT IS THEREFORE ORDERED that the Departments' Final Decision is AFFIRMED;

IT IS FURTHER ORDERED that Inmate Booker's appeal is DISMISSED.

AND IT IS SO ORDERED.



_____________________________________

C. DUKES SCOTT

Administrative Law Judge





May 15, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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