ORDERS:
ORDER
I. STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("Division") pursuant to the appeals
of James E. McNeil, an inmate incarcerated with the Department of Corrections ("Department") since
September 1, 1989. On March 7, 2000, Inmate McNeil was convicted of Failing/Refusing to Obey a
Direct Order, Department Offense 2.13, after refusing to remove his arm from the food flap of his cell,
located in the Special Management Unit ("SMU") of Lieber Correctional Institution ("Lieber"), on
February 27, 2000. On March 8, 2000, Inmate McNeil filed a grievance with the Department, alleging
that his due process rights had been violated during the disciplinary proceedings. Inmate McNeil
received the final decision of the Department on June 7, 2000, which stated that his grievance had been
denied. On June 12, 2000, Inmate McNeil filed this appeal with the Division. II. FACTUAL BACKGROUND
On March 7, 2000, Inmate McNeil was located in his cell in the Lieber's SMU unit at suppertime.
When Department employee William Agosta, who was serving supper to the SMU inmates, attempted
to hand Inmate McNeil his food tray, Inmate McNeil put his arm through the food flap. Officer Agosta
directed Inmate McNeil to move his arm. Inmate McNeil refused, asking to speak to Officer Agosta's
supervisor. After Inmate McNeil repeatedly refused to take his arm out of the food flap, Officer Agosta
closed the food flap on Inmate McNeil's arm and administered a short burst of chemical munitions
spray. Inmate McNeil failed to remove his arm from the food flap. Officer Agosta then notified his
supervisor. After conducting an examination of Inmate McNeil, Department Nurse Margie James noted
no injuries.
After the incident, Officer Agosta completed an Incident Report ("Report"), in which he detailed the
encounter with Inmate McNeil. The Report was then forwarded to Sergeant Buncomb, who added a
statement that Inmate McNeil would be charged with Refusing/Failing to Obey Orders, Department
Offense 2.13. In addition, Sergeant Buncomb determined that a major disciplinary hearing regarding
the incident would be held. Inmate McNeil was notified of the charge on February 29, 2000, seven days
prior to his hearing. During the March 7 hearing, which was held by a Disciplinary Hearing Officer
("DHO"), Inmate McNeil was permitted to give a statement. In addition, Inmate McNeil, through
counsel substitute, was given the opportunity to cross-examine Officer Agosta. Inmate McNeil alleges
that his counsel substitute failed to investigate the incident by interviewing inmate witnesses. However,
the Record on Appeal contains a handwritten note by Inmate McNeil's counsel substitute documenting
Inmate McNeil's decision to withdraw his request to call inmate witnesses based on the belief that such
witnesses would not be believed over the testimony of a Department employee. In addition, the DHO
denied Inmate McNeil's request that Assistant Warden Shealy testify regarding the Department's
chemical munitions policy, stating that he, the DHO, knew the policy and that the policy was irrelevant
to the determination of whether Inmate McNeil refused an order. At the conclusion of the hearing, the
DHO found Inmate McNeil guilty of Refusing/Failing to Obey Orders and imposed a sanction of 30
days loss of good time.
In his March 8 grievance, Inmate McNeil alleges that the Department violated his due process rights
when Sergeant Buncomb became involved in the charging of Inmate McNeil; when Inmate McNeil's
counsel substitute failed to interview any potential witnesses, and when the DHO refused to call the
warden to testify regarding Department policy. The warden responded on March 27, 2000, affirming
Inmate McNeil's conviction. This appeal followed.
III. 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. 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, 338 S.C. at 371, 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.
IV. DISCUSSION
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).
In the instant case, Inmate McNeil received written notification of the charge of Failing/Refusing to Obey
Orders seven days before his hearing, in which Inmate McNeil was represented by counsel substitute. In
that hearing, Inmate McNeil was permitted to make a statement and, through counsel substitute, to cross-examine his accuser, Officer Agosta. After the hearing, the DHO, who had no role in charging Inmate
McNeil with the offense, prepared a written record of the proceedings. In that Record, the DHO noted
that he relied on Officer Agosta's testimony that Inmate McNeil had refused to remove his arm from the
food flap after being directed to do so. As such, the hearing provided Inmate McNeil comported with the
requirements set forth in Wolff and Al-Shabazz.
In challenging his conviction, Inmate McNeil asserts that he should not have been charged because
Officer Agosta failed to state the charge in his Report and that Sergeant Buncomb's inclusion of the
charge in Officer Agosta's Report violates his right of due process. I find that there is nothing inherently
unfair in Sergeant Buncomb's completion of Officer Agosta's Report. In fact, neither Wolff nor Al-Shabazz requires that an incident report be completed at all. Rather, Wolff and Al-Shabazz require that
the inmate have adequate notice of the charges so that the inmate may prepare a defense. See 418 U.S. at
563-72, 527 S.E.2d at 571. Inmate McNeil clearly had notice of the charge a full seven days prior to his
hearing. In addition, with respect to Inmate McNeil's claim that his request to have Assistant Warden
Shealy testify regarding policy was wrongfully denied, I find that the DHO stated a legitimate reason for
denying the testimony of Warden Shealy, who was not present when the incident leading to the charge
occurred. Finally, with respect to Inmate McNeil's allegation that his counsel substitute failed to call
several witnesses, I find that there is substantial evidence that it was Inmate McNeil's decision not to call
inmate witnesses, and not counsel substitute's.
Moreover, I find that there was substantial evidence for the DHO's decision. In both the Hearing and the
Record, the DHO noted that he was relying on Officer Agosta's testimony. Officer Agosta testified that
he gave an instruction to Inmate McNeil to remove his arm from the food flap. Inmate McNeil did not
deny that he was given an instruction with which he failed to comply. As such, the Department's Final
Decision is AFFIRMED.
V. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED and the
appeal of Inmate McNeil is DISMISSED.
IT IS FURTHER ORDERED that Inmate McNeil's requests for relief are DENIED.
AND IT IS SO ORDERED.
____________________________________
Ralph King Anderson, III
Administrative Law Judge
May 23, 2001
Columbia, South Carolina |
