ORDERS:
ORDER
I. STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Jamel Kabir, an inmate
incarcerated with the Department of Corrections ("Department") since April 20, 1989. In a minor disciplinary proceeding on
February 16, 2000, Inmate Kabir was found guilty of Refusing to Obey Orders arising from an incident on February 9, 2000. As a
result of his conviction, Inmate Kabir received a reprimand. The reprimand resulted in the failure of Inmate Kabir to earn twenty days
of "good time" credit for the month of February. Inmate Kabir filed a grievance on February 18, 2000, and the Department rendered a
final decision on April 26, 2000. After receiving the Department's final decision on May 26, 2000, Innate Kabir filed this appeal with
the Division on June 19, 2000. Inmate Kabir also requested to subpoena information from the Department.
II. BACKGROUND
On February 9, 2000, inmates housed in the Allendale Correctional Institution ("Facility") were instructed to turn in blankets for
laundering via the institutional public address system. Inmate Kabir turned in his linens to be laundered, but did not turn in his
blanket. That same day, Lieutenant Dobson completed a Disciplinary Offense Report charging twenty-one inmates, including Inmate
Kabir, with Refusing to Obey Orders for failure to turn in linens. The Report was then forwarded to Officer McCants, who
determined that a 'minor' hearing regarding the incident would be held. On February 14, 2000, Inmate Kabir signed for receipt of
written notice of the charge. On February 16, 2000, a minor hearing was conducted by Lieutenant Singleton, the Minor Hearing
Officer ("MHO"). At the hearing, Inmate Kabir made a statement, but was not permitted to present witnesses. Once the hearing was
concluded, the MHO completed a Minor Disciplinary Report and Hearing Record ("Hearing Record"), indicating that Inmate Kabir
was found guilty of Refusing to Obey Orders, for which he received a reprimand as a sanction. Consequently, Inmate Kabir failed to
earn twenty days' "good time" credit for the month of February 2000.
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. 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.
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.
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. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963
(1974); Al-Shabazz v. State, 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. Al-Shabazz v. State, 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 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, 338 S.C.
371, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
However, an inmate has no liberty interest in sentence-related credits that have not yet been earned. See Luken v. Scott, 71 F.3d 192
(5th Cir. 1995) (mere opportunity to earn good-time credits does not constitute a constitutionally cognizable liberty interest sufficient
to trigger the protection of the Due Process Clause), citing Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995) (where state's
action does not "inevitably affect the duration of [the inmate's] sentence," no constitutionally cognizable liberty interest exists). In
the absence of such an interest, an inmate facing a "minor disciplinary proceeding," one in which he does not face the potential loss of
sentence-related credits, is not entitled to an Al-Shabazz-type hearing. See Al-Shabazz, 338 S.C. at 372, 527 S.E.2d at 751, citing Wolff, 418 U.S. at 571 ("We do not suggest, however, that the procedures required by today's decision for the deprivation of good
time credits would also be required for the imposition of lesser penalties.").
A parole-eligible inmate in the custody of the Department who has not been subjected to punishment for misbehavior and has
otherwise followed the rules of the Department "is entitled to a deduction from the term of his sentence...computed at the rate of
twenty days for each month served." S.C. Code Ann. § 24-13-210(A) (Supp. 1995). Such an inmate is not entitled to any deduction
for good behavior until he has completed that month's service. See id.; 1978 S.C. Op. Atty. Gen. 172 ("the effect of the language of
the statute...is to require that the deductions be made for the time spent in actual incarceration with good behavior"). Therefore, an
inmate who violates a Department rule will fail to earn twenty days' "good time" credit for the month in which the rule violation
occurred.
In the instant case, Inmate Kabir failed to follow an instruction to turn in his blanket for laundering, which is disobedience to an
order, a violation of the Facility's rules. As a result of his infraction, Inmate Kabir failed to earn twenty days of credit toward his
sentence for the month of February 2000.
I find that Inmate Kabir has no liberty interest in "good time" credit he failed to earn as a result of his rule violation in February
2000. As such, Inmate Kabir is not entitled to an Al-Shabazz-type hearing, in which he is represented by counsel substitute, if
necessary, and in which he has the opportunity to present and cross-examine witnesses. Therefore, because Inmate Kabir was not
entitled to any hearing regarding a Facility rules violation resulting in his inability to earn "good time" credit, the Minor Disciplinary
Hearing provided by the Department was more than sufficient. That the Department routinely affords inmates charged with Facility
rules violations and other minor infractions some process does not indicate that any process is required, much less the process
described in Al-Shabazz when a life, liberty, or property interest is at stake. Accordingly, the Department's final decision is affirmed.
Further, I deny Inmate Kabir's request to subpoena Department's "log in sheets for linen pick up" at the Facility. In Al-Shabazz, the
Supreme Court specifically declined to apply S.C.Code Ann. § 1-23-320 (Supp. 1999) concerning use of subpoenas to the internal
prison disciplinary process. See Al-Shabazz, 527 S.E.2d at 753. In addition, the Supreme Court declined to apply certain of the
Division's Rules of Procedure, including ALJD Rule 22 concerning subpoenas, to the Division's appellate review of Department's
final decisions in prison disciplinary proceedings. Al-Shabazz, 527 S.E.2d at 754. Moreover, the Division's Temporary Rules, ALJD
TR54-TR68, applicable exclusively to appeals pursuant to Al-Shabazz, contain no provisions permitting the use of subpoenas.
ORDER
IT IS THEREFORE ORDERED that Inmate Kabir's appeal is denied, and the final decision of the Department is hereby
AFFIRMED.
. IT IS FURTHER ORDERED that Inmate Kabir's request for a subpoena is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
ADMINISTRATIVE LAW JUDGE
P.O. Box 11667
Columbia, South Carolina 29211
November 20, 2000
Columbia, South Carolina |
