ORDERS:
ORDER OF REMAND
I. STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to the appeal of Timothy Wright, an
inmate incarcerated with the Department of Corrections (Department) since June 29, 1995. At McCormick Correctional
Institution (McCormick), on December 30, 1999, Wright was convicted of Use or Possession of Narcotics, Marijuana, or
Unauthorized Drugs after he refused to submit to a drug test. As a result of his conviction, Wright lost 240 days of good
time credit. Wright filed a grievance with the Department on January 13, 2000, and received the Department's final
decision on June 8, 2000. On June 15, 2000, Wright filed this appeal.
In his Brief, Wright challenges the written transcript of his disciplinary proceeding as being incomplete, and leaving out
important portions of the hearing. In addition, Wright alleges that the hearing officer denied him the opportunity to call a
critical witness. In reviewing the transcript of Wright's disciplinary hearing, it is apparent that it is of little use in
determining whether Wright was afforded all process due. The hearing tape appeared to be of such poor quality that much
of the testimony was completely lost. In addition, it appears that Wright and another inmate, Burton, both appeared before
the DHO in the same hearing. As a result, it is seldom clear which inmate is speaking or to whom the DHO is referring.
II. 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.
Wright lost 240 days of good time after he was convicted of the prison disciplinary infraction. As such, I find that this
tribunal has jurisdiction to hear Wright'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).
In this case, there is insufficient evidence upon which this tribunal can rely to find that Wright was afforded due process
before the Department sanctioned him with the loss of 240 days of good time. Accordingly, this case is REMANDED to
the Department to conduct a contested case hearing pursuant to the Administrative Procedures Act, in which the
Department shall provide Wright with at least 24 hours' notice of the charges against him; shall afford Wright counsel
substitute if necessary; shall afford Wright the opportunity to present witnesses and evidence on his own behalf; and shall
prepare a written record of the hearing detailing the charges, the evidence the hearing officer relied upon in making a
decision, and the imposed sanction and its justification.
III. ORDER
IT IS THEREFORE ORDERED that the Department must conduct a contested case hearing on the charge of Use or
Possession of Narcotics, Marijuana, or Unauthorized Drugs pursuant to the Administrative Procedures Act as outlined
above so that a reviewable record may be created.
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 8, 2001
Columbia, South Carolina |
