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SC Administrative Law Court Decisions

CAPTION:
Christopher C. Harken, #251575 vs. SCDOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
Christopher C. Harken, #251575

Respondent:
South Carolina Department of Corrections
 
DOCKET NUMBER:
00-ALJ-04-00356-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER GRANTING MOTION TO DISMISS
Grievance No. PCI-1950-99

This matter is before the Administrative Law Judge Division ("Division") pursuant to Appellant's Notice of Appeal filed June 9, 2000. Respondent filed a Motion to Dismiss on August 7, 2000, asserting the Division lacks jurisdiction in this appeal because Appellant failed to serve a copy of the Notice of Appeal on Respondent.

On August 16, 2000, Appellant filed a response to Respondent's motion indicating he did not know he needed to serve a copy of the Notice of Appeal on Respondent. The instructions on the Notice of Appeal Form, however, direct the inmate to mail the Notice of Appeal to the Division and to forward a copy of the Notice of Appeal to the Office of General Counsel at the Department of Corrections.

ALJDTR 62 provides, "The notice of appeal from the final decision of DOC . . . shall be filed with the Division and a copy served on each party and DOC within thirty (30) days of receipt of the decision from which the appeal is taken." ALJDTR 62 (emphasis added). According to this rule, Appellant must serve a copy of the Notice of Appeal on Respondent within thirty days of receiving Respondent's final written decision.

In this case, Appellant received the final decision on May 30, 2000. Appellant should have filed the Notice of Appeal with the Division and should have served a copy on Respondent on or before June 29, 2000. ALJDTR 65 provides "an Administrative Law Judge may dismiss an appeal for failure to comply with any of the rules of procedure for appeals, including the failure to comply with any of the time limits provided by this section." Pursuant to this rule, the undersigned can dismiss this case for failure to timely serve a copy of the Notice of Appeal on Respondent as required by ALJDTR 62.

Furthermore, a court must dismiss an appeal where the appellant fails to serve a party with the notice of appeal in a timely manner. See Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355 S.E.2d 535 (1987) (applying appellate court rules and dismissing case for failure to serve a notice of intent to appeal in a timely manner); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) (applying appellate court rules and finding lack of jurisdiction for failure to serve a notice of intent to appeal in a timely manner). Because the Division acts as an appellate court in inmate cases filed pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the Division must dismiss an appeal where the inmate fails to timely serve a copy of the Notice of Appeal on Respondent.

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is granted and this appeal is dismissed with prejudice.

AND IT IS SO ORDERED.





__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge



September 26, 2000

Columbia, South Carolina





APPEAL RIGHTS



You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition for judicial review in circuit court and serving such petition on opposing parties within thirty (30) days after receipt of this order. S.C. Code Ann. § 1-23-610 (Supp. 1999). The petition may be filed in any circuit court as long as the chosen forum is neither arbitrary nor unreasonable, and provided that no statute controls venue in a particular type of case. The review of the administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.


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