ORDERS:
ORDER
I. STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Douglas Hefner, an inmate
incarcerated with the Department of Corrections ("Department") since September 11, 1999. On January 14, 2000, Inmate Hefner was
convicted of Escape or Escape Attempt or Aiding and Abetting Escape With or Without Force based on an incident occurring at
Tyger River Correctional Institution ("Facility"). As a result of his conviction, Inmate Hefner lost twelve days of "good time" credit.
On January 20, 2000, Inmate Hefner filed a grievance, and received the Department's final decision on May 25, 2000. Innate Hefner
filed this appeal with the Division on June 20, 2000.
II. BACKGROUND
On December 15, 1999, Inmate Hefner took a shirt to another inmate's cell. The cell was occupied by one of the inmates who lived
there and a visiting inmate. Inmate Hefner admits that, as a joke, he laid the shirt on the bed of an inmate not in the cell, and added
some gloves to the shirt to create the general appearance of a person. Pants and shoes were added to the shirt, and a laundry bag was
rolled up and placed in the pants to make it look as if it had an erection. The cell door was open, the lights were on, and several
inmates were in the cell when Officer Arrington stopped at the cell and noticed the dummy. Officer Arrington wrote a Disciplinary
Offense Report charging Inmate Hefner with Use of Obscene, Vulgar or Profane Language or Gestures based on Inmate Hefner's
admission to Sgt. Adams, Lt. Smith and Ofc. Steele that he made the dummy, consisting of clothing lying on the bed. The
Disciplinary Offense Report indicates that Major Loyd changed the charge to Escape or Escape Attempt or Aiding and Abetting
Escape With or Without Force and classified the disciplinary hearing as a major hearing on December 16, 1999. That same day,
Inmate Hefner was placed in Pre-Hearing Detention (PHD) as an escape risk.
On December 17, 1999, Inmate Hefner signed the Major Disciplinary Report and Hearing Record that indicates he was charged with
Escape or Escape Attempt or Aiding and Abetting Escape With or Without Force. The Department investigated the incident as a
possible escape attempt. Investigator Bright issued a memorandum to Major Loyd on January 4, 2000, finding no specific evidence to
support charges against any other inmates, but suggesting Inmate Hefner be charged based on his previous admission to involvement
in the incident. On January 5, 2000, Inmate Hefner signed and dated the same Major Disciplinary Report and Hearing Record
previously signed indicating the charge of Escape or Escape Attempt or Aiding and Abetting Escape With or Without Force. The
Disciplinary Hearing Officer ("DHO") conducted a major disciplinary hearing on January 14, 2000, after receiving a seven day
extension of time on January 12, 2000. Inmate Hefner, with Counsel Substitute, attended and participated in the hearing. Officer
Arlington was available at the hearing through telephone conferencing, and answered questions from Inmate Hefner and the DHO.
According to the Major Disciplinary Report and Hearing Record, the DHO found Inmate Hefner guilty of the charge based on his
admission to making the dummy. As a result of his conviction, Inmate Hefner lost 12 days of "good time" credit, as well as loss of
phone and canteen privileges for 45 days, and receiving category 2 cell restriction for 15 days.
Inmate Hefner filed a grievance on January 20, 2000, appealing his conviction for Escape or Escape Attempt or Aiding and Abetting
Escape With or Without Force and complaining of procedural violations. On January 24, 2000, Warden Wannamaker denied the
appeal, finding that the conviction was based on Inmate Hefner's admission to Sgt. Adams, Lt. Smith and Ofc. Steele that he made
the dummy. Inmate Hefner appealed the Warden's decision, complaining of violation of proper procedure and lack of evidence to
support the conviction. The Department, in the final decision, denied the appeal and found that the evidence presented was sufficient
to support the conviction and the sanctions imposed were appropriate.
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 ("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.
Under the Act, the Division may not substitute its judgment for that of a state agency as to the weight of the evidence on questions of
fact. See Long Cove Home Owners' Assoc. v. Beaufort Cnty. Tax Equalization Bd., 327 S.C. 135, 139, 488 S.E.2d 857, 860 (1997); Marietta Garage, Inc. v. South Carolina Dept. of Pub. Safety, 337 S.C. 133, 522 S.E.2d 605, 607 (Ct. App. 1999). However, the
Division may reverse or modify a decision of the Department that is clearly erroneous in light of the substantial evidence in the
record. See Long Cove, 327 S.C. at 139, 488 S.E.2d at 860. "Substantial evidence is not a mere scintilla of evidence nor the
evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable
minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action." Lark v.
Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, 306 (1981); see Al-Shabazz, 338 S.C. 354, 380, 527 S.E.2d at 755-56.
IV. 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). 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. 338 S.C. at 370, 527 S.E.2d at 750. 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 340, 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).
In this case, it can not be determined from the Record whether Inmate Hefner was afforded all process he was due. Although the
Department provided a transcript of sorts of Inmate Hefner's disciplinary hearing, the transcript lacks the requisite indices of
reliability, i.e., the name and certification of an impartial reporter, and the date upon which the transcript was prepared. Assuming,
however, that Inmate Hefner was afforded all process he was due, I find that the Department's determination of guilt in this case is
clearly erroneous in light of the substantial evidence in the Record. Accordingly, the Department's final decision is reversed.
Inmate Hefner was convicted of Escape or Escape Attempt or Aiding and Abetting Escape With or Without Force, which includes
"actual or constructive possession of tools or items which are intended to be used to facilitate an escape." Department
Policy/Procedure OP-22.14 (1998) The element of intent is clearly stated in the charge. The Record contains no evidence that Inmate
Hefner intended for the dummy to be used to facilitate an escape. The only evidence of intent reflected by the Record is Inmate
Hefner's statement that the dummy was made as a joke. In fact, the dummy was made to look like it had an erection, which Officer
Arrington, the only Department employee to see the dummy, obviously noticed. Officer Arrington charged Inmate Hefner with Use
of Obscene, Vulgar or Profane Language or Gestures based on that feature of the dummy. The Record contains no other evidence of
Inmate Hefner's intent.
Further, the DHO did not make a specific finding that Inmate Hefner intended to use the dummy to facilitate an escape with an
explanation as to how such a conclusion was reached. The DHO in the written determination found that making a dummy "clearly
constitutes possession of escape paraphernalia which are items that could be used to facilitate an escape." However, Al-Shabazz requires that a DHO, upon finding an inmate guilty, prepare a written report outlining "the evidence presented and considered" as
well as "the reasons for a determination of guilt". Al- Shabazz 527 S.E.2d at 752. Although in certain circumstances, clothing made
into a dummy could certainly be used as a tool to assist in an escape attempt, the Record in this case is devoid of any evidence that
Inmate Hefner intended for the dummy to be used to facilitate an escape as required by the charge. Without specific findings of the
DHO to explain how the Department determined that Inmate Hefner intended to use the dummy to facilitate an escape, and no
evidence of such intent in the Record, the Department's final decision must be reversed.
IV. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department be REVERSED;
IT IS FURTHER ORDERED THAT the Department credit Inmate Hefner with the 12 days of "good time" credits lost as a result
of his conviction.
IT IS FURTHER ORDERED THAT the Department credit Inmate Hefner with any "good time" credit he failed to earn as a result
of his conviction.
AND IT IS SO ORDERED.
____________________________
CAROLYN C. MATTHEWS
ADMINISTRATIVE LAW JUDGE
P. O. Box 11667
Columbia, SC 29211
December 4, 2000
Columbia, South Carolina |
