SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Valerie Priscilla Porter, an inmate incarcerated with the Department of Corrections ("Department"). Porter was disciplined as a result of a conviction for Sexual Misconduct, SCDC Disciplinary Code 2.09, on October 7, 1979. As a result of her conviction, Porter lost 200 days of good-time credit and her contact visits were suspended for a year. Porter filed a grievance with the Department on October 20, 1999, and received the Department's final decision on May 18, 2000. On June 13, 2000, Porter filed this appeal.

II. BACKGROUND

Porter was allegedly involved in an incident observed by Officer J. Villena on October 4, 1999, resulting in the charge of Sexual Misconduct being levied against Porter

After the incident, Officer Villena completed a Disciplinary Offense Report and submitted it to her supervisor. Porter received written notice of the charges on October 6, 1999. The hearing was held on October 7, 1999, before a Disciplinary Hearing Officer ("DHO"). Porter waived having her accuser present at the hearing and her right to 24-hour notice prior to the hearing. At the conclusion of the hearing, the DHO informed Porter she had pled a plea of "none" and had been found guilty of the charge of violating SCDC Disciplinary Code 2.09. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), which documented the DHO's findings and the basis for the findings.

Porter filed a grievance on October 20, 1999, appealing her conviction. On January 14, 2000, the Warden denied her grievance, finding "no technicalities, misinterpretation of evidence, or disproportionate sentencing on which you can appeal." On January 14, 2000, Porter appealed the warden's decision stating that her prior disciplinary record should not be a factor, Officer Villena was "under investigation" and Officer Villena had committed discrimination, breach of trust, liable, slander, and failed to comply with institutional standards, procedures and policies. The Department denied her grievance, finding that the evidence presented was sufficient to support her conviction and that the sanction imposed was appropriate. This appeal followed.

III. ANALYSIS

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). On September 5, 2001, the Division issued an En Banc Order in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), interpreting the breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division's appellate jurisdiction in inmate appeals is limited to two types of cases: (1) cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the Department has taken an inmate's created liberty interest as punishment in a major disciplinary hearing.

In her Brief, Inmate Porter raises the following issues:

1. Ineffective assistance of counsel substitute;

2. Credibility of accusing officer;

3. Discrepancies and technicalities in adjustment transcript;

4. Inmate's 14^th amendment and 8^th amendment rights violated;

5. DHO in violation of SCDC Policy Hearing and Procedures; and

6. Ineffective assistance of grievance clerk.

Inmate Porter lost 200 days of good time after she was convicted of the prison disciplinary infraction. As such, I find that this tribunal has jurisdiction to hear Inmate Porter's appeal.

The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz, 338 S.C. at 369-370, 527 S.E.2d at 750. An inmate facing the loss of sentence related credits is entitled to minimal due process to ensure that the state-created right is not arbitrarily abrogated. Id. While due process is "flexible and calls for such procedural protections as the particular situation demands," Stono River Envtl. Protection Ass'n v. S.C. Dept. Of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 30, 341 (1991), certain elements must be satisfied in order for procedural due process requirements to be met, including adequate advance notice of the charges, adequate opportunity for a hearing in which the inmate can present witnesses and documentary evidence, and an impartial hearing officer who prepares a written statement of all the evidence presented and the reasons for his decision. Al-Shabazz, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).

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.

I find that Porter was afforded all process due her pursuant to Al-Shabazz. The Record indicates that Porter was given written notice of the charges. She waived 24 hours notice prior to her hearing. She was provided a hearing before an impartial hearing officer. In addition, although not constitutionally required, Porter was afforded counsel substitute to assist her in defense. There is no evidence that counsel substitute was ineffective. Further, she was given the opportunity to offer evidence and witnesses. The DHO prepared a written report detailing the evidence he relied upon and the penalty assessed in finding Porter guilty of the disciplinary infraction. Finally, Porter was permitted to appeal the DHO's decision through the inmate grievance process.

Moreover, despite Porter's allegation that she did not knowingly, intelligently, and voluntarily plead "No contest," I find that substantial evidence in the whole of the Record supports the conviction even without her plea. The Disciplinary Offense Report, signed by Officer Villena detailed in narrative form the incident as witnessed by her. Further, Officer Villena testified by telephone at the hearing and was subjected to examination by counsel substitute. Therefore, I cannot find that the decision of Respondent was clearly erroneous, or arbitrary or capricious or an abuse of discretion, in view of the substantial evidence on the whole record.

The prior disciplinary violations were used in assessing the penalty. The SCDC's Inmate Disciplinary System's policy specifically provides that the inmate's prior conduct will be taken into consideration when sentencing an inmate.

The "alleged discrepancies and technicalities in adjustment transcript" even if accurate do not constitute reversible error.

As to the credibility of Officer Villena, it is in the discretion and judgment of the fact finder, here the DHO, to determine the credibility of the witnesses and the weight to be given to the testimony.

As to the other allegations of error set forth in Porter's Brief and Reply Brief, none of these were raised during the course of the hearing, although Porter was herself present and had ample opportunity to do so. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. Moreover, Porter must accept that every failure of the Department to follow its own policies and procedures, whether deliberate or inadvertent, is not a violation of due process. Only if the Department's failure adversely affects an inmate's life, liberty, or property right is an inmate's right of due process implicated. In her silence, Porter failed to offer any evidence that the Department's alleged failure to follow SCDC Policy adversely affected her liberty interests.

Accordingly, the Department's final decision is affirmed.

V. ORDER

IT IS THEREFORE ORDERED that the appeal of Porter is DISMISSED and the Final Decision of the Department is AFFIRMED;

AND IT IS SO ORDERED.

_________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

November 7, 2001

Columbia, South Carolina