ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Chad Ellis, an inmate
incarcerated with the Department of Corrections ("Department"). On August 27, 1999, Ellis was convicted of violating
SCDC Disciplinary Code 1.1, Escape or Escape Attempt or Aiding or Abetting Escape with or without Force. As a result of
his conviction, Ellis lost 1240 days of "good-time" credit. Ellis filed a grievance with the Department and received the
Department's final decision on May 20, 2000 (1). On June 14, 2000, Ellis filed this appeal.
II. BACKGROUND
On August 22, 1999, Correctional Officer Johnny L. Kirkland was making a security patrol in Dorm 2 of Northside
Correctional Institution. He heard talking in Cube 18-A and stopped to listen. He heard Chad Ellis tell another inmate, "If
the lights go out, I'm leaving. There are no bars on the window." Officer Kirkland wrote a Disciplinary Offense Report on
the incident and it was referred to a major disciplinary hearing.
The testimony at the hearing reflected the information in the officer's report. At the conclusion of the hearing, the DHO
informed Ellis that "the conspiring and specified behavior is the considering factor in this." Consequently, the DHO found
Ellis guilty of the charge and sanctioned him with the loss of 1240 days of good time credit. After the hearing, the DHO
completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), which documented the DHO's findings
based on Kirkland's report. Finally, the Hearing Record reflects that Ellis lost 1240 days of good-time credit as a result of
the conviction.
Ellis grieved the conviction. The Department denied his grievance, finding that there is no reason to warrant a reversal of
the DHO's decision. In addition, the Department found that the evidence presented was sufficient to support the 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 this case, Ellis lost 1240 days of good
time after he was convicted of a prison disciplinary infraction. As such, I find that this tribunal has jurisdiction to hear
the 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.
The Record reflects that Inmate Ellis was afforded all process due him pursuant to Al-Shabazz. The Record indicates that
Ellis received written notice of the charge in excess of twenty-four hours prior to his hearing. A hearing was held before an
impartial hearing officer, who permitted Ellis to present evidence in his own defense. Ellis was allowed to have a counsel
substitute at the hearing to assist him. In addition, Ellis received a copy of the Hearing Record informing him of his
conviction, based on the charging officer's report, and his resulting punishment. After his conviction, Inmate Logan filed a
grievance and received a response from his warden, which Inmate Logan then appealed to the Department. Clearly, with
respect to the Appellant's conviction, the Department provided all process contemplated by both the United States Supreme
Court in Wolff and the South Carolina Supreme Court in Al-Shabazz.
However, despite being afforded due process, I find that the Department's determination of guilt in this case is clearly
erroneous in light of the substantial evidence in the Record. SCDC Disciplinary Code 1.1, Escape or Escape Attempt or
Aiding and Abetting Escape with/without Force states, "[t]he act of any inmate who by force or threat of force escapes,
attempts to escape, or aids another person to escape or attempt to escape from the confines of the institution; from state,
federal, county or city property; or from official custody or supervision with or without force beyond the confines of the
institution. To include actual or constructive possession of tools or items which are intended to be used to facilitate an
escape." Appendix A, SCDC Disciplinary Offenses defines violation of the rules as: (a.) Engaging in the specified
behavior; (b.) Attempting to engage in the specified behavior; (c.) Conspiring to engage in the specified behavior; or (d.)
Aiding others in engaging, attempting, or conspiring in the specified behavior.
Nothing in the Record reflects that Ellis escaped, made any attempt to escape or aided others in doing so. The only
evidence in the record is a statement by Ellis that he would leave if the lights went out. The DHO seems to indicate that she
finds this statement to be conspiracy to escape. Admittedly, Ellis was talking to someone else, but there is no indication in
the Record of any response by the other person. There is no evidence that anyone else was in agreement with this alleged
plan by Ellis. It is well settled in South Carolina that there must be an agreement to have a conspiracy. "The gravamen of a
conspiracy is the agreement or mutual understanding." State vs. Hammit, 341 S.C. 638, 535 S.E.2d 459 (Ct.App.2000).
Therefore, because there is no substantial evidence that Ellis did anything more than make a statement about escaping, the
Department's Final Decision is REVERSED.
IV. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department is REVERSED;
IT IS FURTHER ORDERED that the Department credit Ellis with the 1240 days of "good-time" credits lost as a result
of his conviction;
AND IT IS SO ORDERED.
_________________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 15, 2002
Columbia, South Carolina
1. There is a discrepancy between the Department's filings and Appellant's filings as to the date the Appellant received
notice of the final agency decision. Since there has been no allegation on the part of the Department that the appeal was not
timely filed, I will assume the Appellant's date of receipt is correct. |