ORDERS:
ORDER
I. STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("Division") pursuant to the appeal of
Marico Stevens, an inmate incarcerated with the Department of Corrections ("Department") since
October 27, 1997, and housed at Perry Correctional Institution ("Perry"). On March 6, 2000, Inmate
Stevens filed a grievance with the Department, alleging that his cell was being searched routinely in
violation of Department policy. By Final Decision dated June 12, 2000, the Department denied Inmate
Stevens' grievance. Inmate Stevens filed this appeal with the Division on June 30, 2000.
II. FACTUAL BACKGROUND
According to Inmate Stevens, two Department employees, Officer Parrish and Sergeant Stevens,
conducted numerous searches of Inmate Stevens' cell in his absence, perhaps as many as two or three
times on any given day. In his grievance, Inmate Stevens alleges such searches were conducted to
harass him. The Department does not deny that such searches have occurred. However, the
Department asserts that the searches were proper and made in accordance with its policies and
procedures.
In an effort to control and prevent the introduction of unauthorized items into the State's prisons, as
well as to control and prevent the possession of unauthorized items by inmates, the Department
conducts routine searches of the property and living areas of its inmates, called "shakedowns."
Pursuant to Department policy, a shakedown may be unannounced and conducted at any time.
Policy/Procedure OP-22.19, Directive 5; 22.19(4)(a). However, Department policy prohibits searches
conducted to harass, humiliate, punish, or retaliate against any inmate. Policy/Procedure OP-22.19,
Directive 3; 22.19(2)(c). 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' Ass'n v. Beaufort Cnty. Tax
Equalization Bd., 327 S.C. 135, 139, 488 S.E.2d 857, 860 (1997); Marietta Garage, Inc. v. S.C. Dep't of
Pub. Safety, 337 S.C. 133, 522 S.E.2d 605, 607 (Ct. App. 1999). The Division may, however, reverse
or modify a decision of the Department that is clearly erroneous in light of 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. at 380, 527 S.E.2d at 755-56.
IV. ANALYSIS
A prisoner retains those constitutional rights not inconsistent with legitimate penological objectives. Bell v. Wolfish, 441 U.S. 520, 545-47 (1979). Because the state's need for institutional security is so
great, an inmate is not entitled to the protection of the Fourth Amendment against the unreasonable
search of his cell. Id. at 528, 530. Nonetheless, an inmate has the right to be free of "calculated
harassment unrelated to prison needs" if that harassment is "cruel and unusual punishment" as
proscribed by the Eighth Amendment. Id. at 530; see Scher v. Engelke, 943 F.2d 921 (1991). The
search of an inmate's cell ten times in nineteen days without the belief that contraband is present in the
cell may constitute cruel and unusual punishment. Id. at 923-24.
In the instant case, Inmate Stevens alleges that Department employees search his cell two or three times
daily. The Department does not deny this, nor does the Department proffer any reason for the excessive
number of searches. Instead, the Department asserts that it possesses the authority to conduct routine,
unannounced searches of an inmate's living quarters. Because the Department has offered no evidence
that the repeated searches of Inmate Stevens' cell is related to prison needs, and is not to "harass,
humiliate, punish, or retaliate against" him, I find that there is substantial evidence that Inmate Stevens
was subjected to cruel and unusual punishment in violation of the Eighth Amendment. As such, the
Final Decision of the Department is REVERSED.
V. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department is REVERSED;
IT IS FURTHER ORDERED that the Department cease to conduct searches of Inmate Stevens' living
quarters that are unrelated to prison needs and security interests, and are calculated to harass, humiliate,
punish, or retaliate against Inmate Stevens.
AND IT IS SO ORDERED.
_____________________________________
JOHN D. GEATHERS
Administrative Law Judge
P.O. Box 11667
Columbia, South Carolina 29211
May 18, 2001
Columbia, South Carolina |
