ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Keith Brown, an inmate
incarcerated with the Department of Corrections ("Department") since January 16, 1992. On April 10, 2000, Inmate Brown was
convicted of Sexual Misconduct for an incident occurring while Inmate Brown was in the shower at Allendale Correctional
Institution ("Facility"). As a result of his conviction, Inmate Brown lost 80 days' "good-time" credit. Inmate Brown filed a grievance
with the Department on April 11, 2000, and received the Department's final decision on June 14, 2000. On June 30, 2000, Inmate
Brown filed this appeal with the Division.
II. BACKGROUND
On April 3, 2000, Inmate Brown was alone in an enclosed shower stall in the Upstairs Showers of the Facility's Hampton Unit,
taking a shower. Inmate Brown's shower stall was the second of five such showers in the Upstairs Showers, located approximately
sixty feet from the desk of the correctional officer in charge. Each of the showers was equipped with a door that, when closed, left a
space of perhaps a half-inch on either side of the door. Consequently, the occupant of the shower could be seen were someone
outside the shower determined to do so. At approximately 9:30 a.m., Officer Vickie Walker, at the charge desk some sixty feet away,
observed Inmate Brown "peeping out of the side of the door looking at [her] while massaging his penis in a back and forth motion."
From her desk, Officer Walker called Lieutenant Farris, who arrived moments later. After Officer Walker informed Lieutenant Farris
that she had observed the inmate in Shower Two masturbating, Lieutenant Farris observed that the lights were off in the shower and
that towels or clothes were draped over the top of the shower stall. Lieutenant Farris could not see inside the shower, and knocked on
the door of the shower and asked Inmate Brown to identify himself. Inmate Brown complied. That afternoon, Lieutenant Farris
approached Inmate Brown and stated, "you are at it again." Lieutenant Farris alleges that Inmate Brown admitted that he was
masturbating in the shower. Inmate Brown denies ever admitting he was masturbating. However, Inmate Brown told Lieutenant Farris
that he had the shower covered, that all the cracks were covered, and that he did not believe that Officer Walker could see what he
was doing in the shower.
As a result of her observations in the Upstairs Showers, Officer Walker completed an Incident Report, charging Inmate Brown with
Sexual Misconduct. The Report was then forwarded to Officer Walker's supervisor, who determined that a "major" hearing
regarding the incident would be held. Inmate Brown received written notice of the charge five days before his hearing, which was
held on April 10, 2000, before a Disciplinary Hearing Officer ("DHO"). According to the Major Disciplinary Report and Hearing
Record ("Hearing Record") prepared by the DHO, the DHO found Inmate Brown guilty of Sexual Misconduct based on Officer
Walker's Report that Inmate Brown looked at her through the cracks of the shower while masturbating and Lieutenant Farris'
testimony that Inmate Brown admitted he had been masturbating in the shower. The Hearing Record also states that Inmate Brown
lost 80 days' good-time credit as a result of the conviction.
An inmate is guilty of Sexual Misconduct when he (1) engages in sexual acts with others, (2) engages in sexual acts or willful
exposure of private body parts in public, (3) solicits sexual acts from others, or (4) engages in homosexual conduct involving physical
contact (i.e., kissing). Department Policy OP-22.14, Appendix A, 3(b)(9). In this case, it appears that the Department believed
Inmate Brown to have engaged in a sexual act in public or to have willfully exposed his private body parts in public.
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 cannot be determined from the Record whether Inmate Brown was afforded all process he was due. Although the
Department provided a transcript of sorts of Inmate Brown'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 Brown 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.
There is no evidence in the Record that Inmate Brown either engaged in a sexual act in public or willfully exposed his private body
parts in public. The Record clearly indicates that Inmate Brown was showering in an enclosed stall equipped with a door that was
closed. Not only was Inmate Brown alone in a private shower stall, the Record indicates he was alone in the Upstairs Showers.
Although there is some evidence in the Record that Inmate Brown was visible through one of the cracks, the Department cannot
seriously argue that a private shower stall with the door closed is a public place, even in a prison. If it were, an inmate would be
guilty of willfully exposing himself in a public place by simply disrobing in the enclosed shower if a person caught a glimpse of him
through the cracks between the door and the stall.
Moreover, although Officer Walker's Report stated that Inmate Brown "peeped out" at her from between the door and stall, there is
no evidence in the Record that Inmate Brown willfully exposed himself to Officer Walker. In fact, the Record supports the exact
opposite conclusion, that Inmate Brown intended that he not be seen. The lights were off. Clothes and towels were draped over the
shower stall and door in an attempt to obscure the one-half inch cracks between the door and the shower stall. Inmate Brown took
these steps to ensure that he could not be seen while in the shower, which, absent evidence to the contrary, negates any inference that
he willfully exposed himself merely by looking through the cracks of the shower at Officer Walker.
Finally, although the DHO stated in Inmate Brown's hearing that the showers were a public place, it must be noted that Department
regulations do not define the prison showers as public. To the contrary, I can conceive of no more private a place in a prison than
inside the three walls and door of an individual shower stall, visible only to those who consciously make the effort to peer through
one-half inch openings. Consequently, those who do consciously endeavor to invade the only private space afforded a prisoner must
learn to tolerate an array of non-prohibited activities conducted in that private space.
V. ORDER
IT IS THEREFORE ORDERED THAT the Final Decision of the Department be REVERSED;
IT IS FURTHER ORDERED THAT the Department credit Inmate Brown with the 80 days worth of "good-time" credits lost as a
result of his conviction;
IT IS FURTHER ORDERED THAT the Department credit Inmate Brown with any good-time credit he failed to earn as a result of
his conviction.
AND IT IS SO ORDERED.
___________________________________
JOHN D. GEATHERS
Administrative Law Judge
P.O. Box 11667
Columbia, South Carolina 29211
November 15, 2000
Columbia, South Carolina |
