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Administrative Law Court
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SC Administrative Law Court Decisions

Robert A. Marshall, #164466 vs. SCDOC

South Carolina Department of Corrections

Robert A. Marshall, #164466

South Carolina Department of Corrections





This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Robert Marshall, an inmate incarcerated with the Department of Corrections ("Department") since December 17, 1994. On March 20, 2000, Inmate Marshall was convicted of Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs after testing positive for marijuana during a random drug test administered on March 15, 2000, at Allendale Correctional Institution ("Facility"). As a result of his conviction, Inmate Marshall lost 240 days of "good-time" credit. Inmate Marshall filed a grievance with the Department on March 22, 2000, and received the Department's final decision on June 12, 2000. On June 16, 2000, Inmate Marshall filed this appeal.


On March 15, 2000, Inmate Marshall was randomly selected to be drug tested and provided a urine sample to Corporal Merritts. Inmate Marshall's sample tested positive for marijuana. At Inmate Marshall's request, Cpl. Merritts administered a second test, a "confirmation" test. It too was positive for marijuana. After the incident, Lieutenant Singleton, who witnessed the testing of Inmate Marshall's urine sample, completed an Incident Report, charging Inmate Marshall with Use or Possession of Narcotics, Marijuana or Unauthorized Drugs. The Report was then forwarded to Lt. Singleton's supervisor, who determined that a "major" hearing regarding the incident would be held. Inmate Marshall received written notice of the charge four days before his hearing, which was held on March 20, 2000, before a Disciplinary Hearing Officer ("DHO"). According to the Major Disciplinary Report and Hearing Record ("Hearing Record") prepared by the DHO, the DHO found Inmate Marshall guilty of Use or Possession of Narcotics, Marijuana or Unauthorized Drugs based on the positive results for marijuana of both the initial and confirmation drug tests. In addition, after listing the medications Inmate Marshall stated he was taking, the DHO noted in the Hearing Record that none of those medications would cause a false positive for marijuana. Finally, the Hearing Record reflects that Inmate Marshall lost 240 days of good-time credit as a result of the conviction.

Inmate Marshall filed a grievance on March 22, 2000, appealing his conviction of Use or Possession of Narcotics, Marijuana or Unauthorized Drugs and arguing that the DHO failed to consider his use of Sudafed, an over-the-counter decongestant that Inmate Marshall claims can cause a false positive for drugs, in determining his guilt. On March 28, 2000, the warden denied his grievance, finding that Inmate tested positive for marijuana use. On April 3, 2000, Inmate Marshall appealed the warden's March 28 decision, arguing that another over-the-counter drug he had been taking, ibuprofen, could cause a false positive for marijuana. In that appeal, Inmate Marshall also stated that the punishment rendered, 240 days of lost time, exceeded the statutory maximum for the same offense occurring outside of a prison. The Department denied his grievance, finding that the evidence presented was sufficient to support his conviction and that the sanction imposed was appropriate. This appeal followed.


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.

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 Inmate Marshall was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Inmate Marshall received written notice of the charge in excess of twenty-four hours prior to a hearing that was held before an impartial hearing officer and in which he was able, through counsel substitute, to offer evidence. Although he voluntarily waived his right to do so prior to his hearing, Inmate Marshall was afforded the opportunity to confront his accuser. At the close of the hearing, the DHO stated that none of the medications identified by Inmate Marshall could create or cause a false positive. The DHO then informed Inmate Marshall that he had been found guilty of the charge based on two positive test results. After his conviction, Inmate Marshall filed a grievance and received a prompt response from his warden, which Inmate Marshall then appealed to the Department. In its denial of Inmate Marshall's appeal, the Department informed Inmate Marshall that he had the right to appeal the Department's final decision under the Administrative Procedures Act. Clearly, with respect to Inmate Marshall's conviction of the charge of Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs, the Department provided all process contemplated by both the United States Supreme Court in Wolff and the South Carolina Supreme Court in Al-Shabazz.

Moreover, I find that there is substantial evidence to support Inmate Marshall's conviction of Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs. A urine sample obtained from Inmate Marshall tested positive for marijuana using at least two separate drug tests. Although he produced some evidence that one or more of the medications he was taking may cause a false positive for amphetamines, Inmate Marshall has provided no evidence that the medications he was taking, specifically ibuprofen, Sudafed, Benedryl, Prednisone, and Alka-Seltzer Plus, could cause a urine sample to test positive for marijuana. In addition, contrary to Inmate Marshall's argument, there is absolutely no evidence that the DHO considered Inmate Marshall's testimony that he had smoked marijuana prior to his current incarceration in determining his guilt. Therefore, I affirm the Department's final decision regarding Inmate Marshall's conviction.

Finally, I find that Inmate Marshall's implication that the penalty imposed by the DHO is somehow unconstitutional because it exceeds the penalty for the same offense if committed while not uncacerated is without merit. It is true that South Carolina's Code of Laws has criminalized only the possession and distribution of marijuana, not its use. However, the Department has the power to "prescribe reasonable rules and regulations governing the ... discipline of prisoners." S.C. Code Ann. § 24-1-140 (1999). Certainly that power would encompass the prohibition of the possession and use of illicit drugs as found in Policy GA-03.03, Inmate Drug Testing/Screening Program, which provides:

"inmates convicted of [use or possession of narcotics, marijuana, or unauthorized drugs] will be subject to the following sanctions:

1. Loss of appropriate amount of good time[.]

Department Policy/Procedure GA-03.03 (March 3, 2000).

Given the Department's duty to provide "an orderly and reasonably safe prison life" to all inmates and staff, see Wolff, 418 U.S. at 561-62, I cannot find that the loss of 240 days of good time is an inappropriate penalty in this case. Therefore, I affirm the Department's final decision regarding the penalty assessed toInmate Marshall as a result of his conviction.


IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED;

IT IS FURTHER ORDERED that the appeal of Inmate Marshall is DISMISSED.





November 8, 2001

Columbia, South Carolina

Brown Bldg.






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