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 |
