SC Administrative Law Court Decisions

In this matter Muta Ali-Nafi (Ali-Nafi) argues that DOC improperly forfeited 1480 days of good time after finding him guilty of Striking an Employee With or Without a Weapon, DOC Disciplinary Code 1.3, on March 22, 2000. In challenging DOC's actions, Ali-Nafi argues that he was not given an opportunity to cross-examine the corrections officer he was convicted of attacking. In addition, Ali-Nafi argues that DOC improperly relied upon the report of the charging officer. Finally, Ali-Nafi argues that there is no evidence that he participated in the attack. After a review of the facts and arguments, I disagree with Ali-Nafi and uphold the DOC decision.

On March 16, 2000, Officer Dixon observed Inmate Michael James (James), who was accompanied by Ali-Nafi, smoking in their dormitory. After Officer Dixon reprimanded James for violating the prison's prohibition against smoking in the dorm, James and Ali-Nafi walked upstairs to the dayroom. Officer Dixon followed. According to Ali-Nafi, James then physically attacked Officer Dixon, despite Ali-Nafi's attempts to intervene. Ali-Nafi did not leave the dayroom to seek help, nor did he call for help. At some point, Officer Dixon was able to radio for help. Other corrections officers arrived on the scene and, pursuant to Officer Dixon's description of the incident, began looking for James, who had left the scene prior to the arrival of the other officers. In addition, the officers located Ali-Nafi and placed him in a holding cell. Officer Dixon was treated for his injuries and was placed on medical leave for seven days.

After the incident, Officer Dixon completed an Incident Report in which he alleged that Ali-Nafi assisted James in the assault by grabbing Officer Dixon's legs while James punched him in the face. The prison then assigned Captain Newton to investigate the incident. Captain Newton interviewed Officer Dixon and a number of inmates, including James and Ali-Nafi. As a result of those interviews, Captain Newton completed another Incident Report and recommended that Ali-Nafi be charged with Striking an Employee With or Without a Weapon, DOC Disciplinary Code 1.3. In his Incident Report, Captain Newton recorded the results of his investigation, which indicated that Ali-Nafi had participated in the assault by holding Officer Dixon's legs while James attacked him.

On March 20, 2000, Ali-Nafi was notified in writing of the charge via a Disciplinary Report and Hearing Record (Report), which identified the charging officer as Captain Newton. In the space provided on the Report, Ali-Nafi indicated that he wished his accuser to be present. In addition, he declined counsel substitute. Nevertheless, Ali-Nafi was provided counsel substitute, who conducted her own investigation and secured the statements of several inmate witnesses.

On March 22, 2000, Ali-Nafi was brought before a Disciplinary Hearing Officer (DHO) on the charge. The DHO accepted both Incident Reports into the Record. Captain Newton testified regarding the results of his investigation, which indicated that Ali-Nafi had participated in the assault of Officer Dixon. Ali-Nafi objected, stating that he had expected Officer Dixon to appear as his accuser. The DHO informed Ali-Nafi that he had received notice, via the Report, that Captain Newton was his accuser. After receiving Captain Newton's testimony, the DHO permitted Ali-Nafi to testify. Ali-Nafi denied participating in the assault, although he did admit being present during the assault. When asked whether he attempted to get help for Officer Dixon, Ali-Nafi testified that he made several attempts to stop James, but that he did not leave the room or call for help. Ali-Nafi alleged that Officer Dixon failed to identify him on at least two occasions as a perpetrator. Finally, Ali-Nafi, through his counsel substitute, offered several inmate witnesses, all who testified that Officer Dixon had on previous occasions verbally abused James and Ali-Nafi.

At the conclusion of the hearing, the DHO informed Ali-Nafi that there was evidence that he had grabbed Officer Dixon's legs while James attacked him. The DHO also informed Ali-Nafi that there was evidence that he aided James in the attack by failing to seek assistance when he had the opportunity. In addition, the DHO acknowledged that Officer Dixon may have acted unprofessionally prior to the incident, but that there was no evidence that Officer Dixon was responsible for the altercation. Finally, the DHO informed Ali-Nafi that he had been found guilty of Striking an Employee With or Without a Weapon and sanctioned him with the loss of 1480 days of good time and 30 days of telephone privileges.

On April 4, 2000, Ali-Nafi filed a Step One grievance, appealing the DHO's finding of guilt based on insufficient evidence and complaining that his sanction was excessive. Step 1 Grievance Form. In addition, Ali-Nafi appeared to allege that Captain Newton's investigation into the incident somehow resulted in a violation of his rights. Step 1 Grievance Form. After reviewing his case, the warden of Ali-Nafi's facility found no procedural errors and denied his grievance. Step 1 Grievance Form. On April 16, 2000, Ali-Nafi appealed the warden's decision, again challenging the sufficiency of the evidence relied upon by the DHO. Step 2 Grievance Form. DOC denied his grievance, finding that "the evidence presented was sufficient to support the conviction of Striking an Employee With or Without a Weapon (1.3)." Step 2 Grievance Form.

Ali-Nafi asserts that the DHO accepted as evidence "fictitious, deceptive and fabricated allegations" from two corrections officers and that Captain Newton's investigation of the incident resulted in a bias against him. Consequently, Ali-Nafi asserts, he is entitled to have his conviction reversed. DOC, however, found that the evidence supported Ali-Nafi's conviction of Striking an Employee With or Without a Weapon and that no procedural errors had been committed.

III. Issues

1. Was the DOC decision rendered in violation of Ali-Nafi's procedural and substantive due process rights?

• Was the DOC decision lacking in reasonable factual support?

This case raises two procedural issues and one substantive issue of whether substantial evidence exists to support DOC's finding of guilt and its subsequent sanction.

A. Procedural Issues: Due Process

Two procedural issues challenge Ali-Nafi's rights to due process. He argues that his rights to procedural due process were violated first by the appointment of Captain Newton to investigate the incident resulting in his conviction and second by the failure of Officer Dixon, the alleged victim, to appear in Ali-Nafi's hearing.

Procedural due process questions are examined in two steps. First, a determination is made on whether a deprivation of a protected property or liberty interest occurred. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-72 (1972). Second, if yes, a determination is made on whether the procedures used were constitutionally sufficient. Hewitt v. Helms, 459 U.S. 460, 472 (1983).

Here, the inmate has a protected interest in good time credits since the right to sentence-related credits is created by statute and is one that 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. South Carolina's Code of Laws creates a right to sentence-related credits at a rate of 20 days per month of time served in which an inmate eligible for parole has not violated any DOC rule or regulation. S.C. Code Ann. § 24-13-210 (1995).

Since an inmate has a protected interest in good time credits, the procedures used by DOC to take away those credits must be examined to determine if those procedures comport with due process requirements. Al-Shabazz v. State, 338 S.C. at 370, 527 S.E.2d at 750. Due process requirements in a case such as the instant one include 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). Here, Ali-Nafi argues 's that he did not have an adequate opportunity to present witnesses and documentary evidence since Captain Newton intentionally presented a biased and unfair report and that Officer Dixon, the alleged victim, failed to appear in Ali-Nafi's hearing.

1. Investigation by Captain Newton, a DOC Employee

Ali-Nafi argues that DOC violated his due process rights when it assigned Captain Newton to investigate the incident. Ali-Nafi alleges that Captain Newton drafted his report in such a way as to misrepresent the statements made by Officer Dixon regarding the incident. Officer Dixon's report, however, identifies Ali-Nafi as having grabbed Officer Dixon's legs while James punched him in the face. Captain Newton's Report repeats, nearly verbatim, Officer Dixon's allegation regarding Ali-Nafi's involvement in the assault. There is no evidence to support Ali-Nafi's allegation that Captain Newton biased the investigation. Accordingly, I find that Ali-Nafi's argument is without merit.

2. No Right of Cross-Examination

Ali-Nafi argues that DOC violated his due process rights when he was prevented from cross-examining Officer Dixon.

Due process requires that an inmate receive a hearing, notice of the charges, and an opportunity to put up a defense. See 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). Prisoners do not have a right of confrontation and cross-examination during prison disciplinary hearings. Wolff, 418 U.S. at 568, 94 S. Ct. at 2980.

Nonetheless, Ali-Nafi was permitted to cross-examine his accusing officer, Captain Newton. Moreover, Ali-Nafi did not request that Officer Dixon be present at the hearing. Although Ali-Nafi assumed that Officer Dixon would be present, he requested only the presence of his accusing officer, identified in Ali-Nafi's Notice of Charge as Captain Newton. As such, I find that Ali-Nafi's argument is without merit.

Accordingly, I find that Ali-Nafi was afforded all process due before he lost good time as a result of violating a DOC disciplinary rule.

B. Substantive Issue: Substantial Evidence

Ali-Nafi also argues the DOC decision is unsupported by the evidence. In this case, a factual dispute existed below on whether Ali-Nafi aided James in assaulting Officer Dixon.

In reviewing a factual dispute, an ALJ is constrained to reviewing the matter in an appellate capacity. Al-Shabazz v. State 338 S.C. 354, 527 S.E.2d 742. In an appellate capacity, an ALJ "will not substitute [his] judgment for that of the agency as to the weight of the evidence on questions of fact." S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000). Accordingly, while the evidence below is conflicting, the ALJ will not overturn a factual determination of DOC unless no substantial evidence exists to support the determination made.

Here, the Record contains the Incident Reports prepared by Officer Dixon, the assaulted employee, and Captain Newton, the investigating employee. Both Incident Reports identify Ali-Nafi as one of the perpetrators of the assault. In addition, the Record contains the Disciplinary Report, in which Captain Newton's findings were repeated and Ali-Nafi was charged with violating Striking an Employee With or Without a Weapon, DOC Disciplinary Code 1.3. Finally, Captain Newton testified that Ali-Nafi had been identified by Officer Dixon as having held Officer Dixon's legs during the assault. Accordingly, there is substantial evidence that Ali-Nafi violated DOC Disciplinary Code 1.3.

The decision of the DOC is proper and the DOC decision is affirmed.

AND IT IS SO ORDERED.

Dated: August 13, 2001

Columbia, South Carolina