ORDERS:
AMENDED ORDER OF DISMISSAL
On November 5, 2001, an Order of Dismissal was issued in the instant case. On November 16, 2001, a letter was received
from the Appellant noting that he lost 600 days of good time credit rather than the 300 days stated in the order. Also, by
clerical error the name of Marshall appeared instead of Scott. Pursuant to Rule 67 of the Rules of Procedure of the
Administrative Law Judge Division, this Amended Order of Dismissal corrects that error and addresses the loss of an
additional 300 days of good time credit. See also Goethe v. Cleland, 323 S.C. 50, 448 S.E.2d 574 (S.C. App. 1994).
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Marc Scott, an inmate
incarcerated with the Department of Corrections ("Department") since November 4, 1995. On February 23, 2000, Scott
was convicted of SCDC Disciplinary Code 1.10, Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs and
2.19, Soliciting Assistance from an Employee or an Inmate to Violate an Agency Rule or an Employee Rule. As a result of
his conviction, Scott lost 300 days of "good-time" credit on each charge. Scott filed a grievance with the Department on
February 26, 2000, and received the Department's final decision on July 18, 2000. On August 14, 2000, Scott filed this
appeal.
II. BACKGROUND
On February 3, 2000, Scott gave Corrections Officer ("CO") McCall the telephone number of Scott's girlfriend and
instructed CO McCall to call her to arrange pick-up of a package of marijuana. Afterwards, CO McCall, with the
knowledge of Investigator Chastain, called the number and spoke with a female named "Meko." Meko told CO McCall
that she was expecting his call and that she had a package for him to pick up. On February 4, Scott told CO McCall that
Meko would not meet him. Later that day, Scott gave CO McCall another number to call, this time a female named Lea.
On February 8, CO McCall called Lea to arrange pick-up of a package of marijuana. Lea told CO McCall that she did not
have anything right then but to call back in a few days. CO McCall called Lea back as instructed. At that time, Lea told CO
McCall that a pick-up could be arranged for February 12. On February 12, McCall called Lea, who handed the telephone to
a male named Chris. McCall and Chris agreed to meet at Exit 52 in the Waffle House parking lot at 11:30 p.m. After
unsuccessfully attempting to contact Chastain, CO McCall cancelled the pick-up and rescheduled it for Monday, February
14, at the same location. Accompanied by Chastain and four deputies, CO McCall arrived at the location and waited for
Chris to arrive. After Chris handed CO McCall a bag containing 25 grams of marijuana, Chris was arrested.
After the incident, CO McCall completed an Incident Report, which was forwarded to CO McCall's supervisor, who
charged Scott with charging Scott with violating SCDC Code 1.10, Use or Possession of Narcotics, Marijuana or
Unauthorized Drugs, and SCDC Code 2.19, Soliciting Assistance From an Employee or an Inmate to Violate An Agency
Rule or an Employee Rule. On February 15, 2000, Scott received notice of and was placed in Prehearing Detention
("PHD"). Scott received written notice of the charges six days before his hearing, which was held on February 23, 2000,
before a Disciplinary Hearing Officer ("DHO"). CO McCall was not present during the hearing. Nevertheless, Scott's
counsel substitute informed the DHO that Scott had waived his accuser's presence and that Scott wished to proceed.
However, Scott complained to the DHO that it was his understanding that CO McCall would be present during the hearing.
To clarify the issue, the DHO had Chastain brought in as Scott's accuser and permitted Scott to cross-examine him. In
addition, Scott himself testified. Scott testified that he had given CO McCall the contacts, but only after CO McCall asked
him how he could make extra money. Scott testified that he was going to turn CO McCall in after CO McCall completed
the pick-up. At the conclusion of the hearing, the DHO informed Scott that he had been found guilty of both charges and
would be sanctioned with the loss of 300 days of good time. After the hearing, the DHO completed two Major Disciplinary
Report and Hearing Records ("Hearing Records"), which documented the DHO's findings based on CO McCall's written
report and Chastain's testimony regarding the incident. Finally, the Hearing Record reflects that Scott lost a total of 600
days of good-time credit as a result of the convictions.
Scott filed a grievance on February 26, 2000, appealing his convictions of violating SCDC 1.10 and 2.19. In his grievance,
Scott argues that, contrary to his request, his accuser was not present during his hearing. On March 14, 2000, the warden
denied his grievance, finding that Chastain was present during the hearing and that his testimony provided ample evidence
of Scott's guilt. On March 27, 2000, Scott appealed the warden's March 14 decision, reiterating his argument that his
accuser's absence resulted in a denial of due process. In that appeal, Scott also stated that the DHO turned off the tape
recorder in violation of Department policy. The Department denied his grievance, finding that the evidence presented was
sufficient to support his conviction and that the sanction imposed was appropriate. This appeal followed. III. ANALYSIS
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). On September 5, 2001, the Division issued an En Banc Order
in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), interpreting the
breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division's appellate jurisdiction in inmate
appeals is limited to two types of cases: (1) cases in which an inmate contends that prison officials have erroneously
calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the Department has taken an
inmate's created liberty interest as punishment in a major disciplinary hearing.
In this case, Inmate alleges that he lost 600 days of good time after he was convicted of two prison disciplinary infractions
in violation of his due process rights. As such, I find that this tribunal has jurisdiction to hear Inmate's appeal.
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. Id. 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, 527 S.E.2d at 751,
citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
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.
I find that Scott was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Scott was given
written notice of the charges in excess of 24 hours prior to his hearing before an impartial hearing officer. In addition,
although not constitutionally required, Scott was afforded counsel substitute to assist him in his defense and was permitted
to cross-examine Investigator Chastain, one of his accusers. Further, Scott was permitted to offer evidence and witnesses,
even if he chose not to do so. The DHO prepared a written Report detailing the evidence he relied upon and the penalty
assessed in finding Scott guilty of the two disciplinary infractions. Finally, Scott was permitted to appeal the DHO's
decision through the inmate grievance process. Although Scott alleges that due process required that CO McCall be present
during his hearing, such is not the case. Inmates have no absolute right to cross-examine their accusers in internal
disciplinary matters. See Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974). More importantly,
one of Scott's accusers was present and subject to cross-examination. With regard to his allegation that the DHO violated
Department policy by turning off the tape recorder, Scott failed to allege that any evidence was taken during the period
when the tape recorder was off. To the contrary, a reading of the transcript suggests that the DHO stopped Scott's hearing
entirely while awaiting Investigator Chastain's arrival. As such, I find Scott's arguments without merit.
Moreover, I find that there is substantial evidence to support Scott's convictions of SCDC 1.10, Use or Possession of
Narcotics, Marijuana, or Unauthorized Drugs, and 2.19, Soliciting Assistance From an Employee or an Inmate to Violate
An Agency Rule or an Employee Rule. CO McCall's Incident Report showed that Scott conspired to use or possess
marijuana by putting CO McCall in contact with a person who attempted to deliver marijuana to CO McCall. Although
Scott testified that he was attempting to expose a corrupt cop in a covert sting operation, there is ample evidence in the
Record that the only object of a sting operation was Scott himself. Therefore, I affirm the Department's final decision
regarding Inmate Scott's conviction. V. ORDER
IT IS THEREFORE ORDERED that the appeal of Marc Scott is DISMISSED and the Final Decision of the Department
is AFFIRMED;
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November16, 2001
Columbia, South Carolina |
