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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Alfred Demitrios Crim vs. SCDOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
Alfred Demitrios Crim

Respondent:
South Carolina Department of Corrections
 
DOCKET NUMBER:
00-ALJ-04-00594-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER GRANTING DISMISSAL
Grievance No. Lee-0302-99

I. Introduction



South Carolina Department of Corrections (DOC) brings this motion to dismiss on the ground that Alfred Demitrios Crim (Crim) failed to timely filed the notice of appeal within 30 days of written notice of DOC's final decision. DOC seeks the dismissal under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), ALJD Temporary Rule (TR) 62, SCRCP 12(b)(1) and SCRCP 12(b)(6). Crim opposes the motion.



II. Analysis



This Division has jurisdiction to hear this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al-Shabazz, the S.C. Supreme Court stated:



The inmate must file and serve a notice of appeal upon specified parties within thirty days of written notice of Department's final decision.



Id. at 33 (emphasis added). The Court in Al-Shabazz cited ALJD Rule 33 in support of this requirement. The Division has since adopted TR 62 for use in lieu of ALJD Rule 33. The language in TR 62 is virtually identical to ALJD Rule 33 (1). TR 62 states:



The notice of appeal from the final decision of an agency to be heard by the [Division] shall be filed with the Division and a copy served on each party and DOC within thirty (30) days of receipt of the decision from which the appeal is taken.. . .

TR 62 (emphasis added).



As set forth in Al-Shabazz and TR 57 and 62, timely filing must be accomplished within thirty (30) days of the appellant's receipt of the final decision of the Department. In this case, the inmate's date of receipt of the final decision is disputed.



Crim signed the Step 2 grievance and acknowledged that on July 18, 2000 he received "the official response and under[stood] this is the Agency's final response." However, Crim asserts he did not receive the final decision on that date but instead only signed for it on that date. Rather, he argues he actually received possession of the document on August 9, 2000.



Under any view of the facts, Crim had notice on July 18, 2000 that his grievance had been denied. Further, the form signed on that date had the reasons for the denial explained. Thus, notice was given to Crim on July 18, 2000 and the thirty day time period for filing expired on August 17, 2000.

Here, the notice of appeal was not dated until August 18, 2000, was not stamped as received by the Broad River Correctional Institute Mail Room until August 21, 2000, and was not post marked by the United States Postal Service until August 22, 2000. Thus, all dates were beyond the 30 days as required in Al-Shabazz and TR 57 and 62. Therefore, Crim has not invoked the jurisdiction of the ALJD.



Accordingly, this matter must be dismissed for lack of jurisdiction. Case law supports the proposition that a court must dismiss an appeal where the appellant fails to file an appeal and serve a party with the notice of appeal in a timely manner. See Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355 S.E.2d 535 (1987) (applying appellate court rules and dismissing case for failure to serve a notice of intent to appeal in a timely manner); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) (applying appellate court rules and finding lack of jurisdiction for failure to serve a notice of intent to appeal in a timely manner). (2)



It is also well-established that a court does not have the authority to extend the time for taking an appeal from a decision of an administrative agency. E.g., Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnette v. S.C. State Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969) (addressing an appeal from the Board of Condemnation). While such a result may be harsh, the result is dictated by the rules and legal precedent. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994) (recognizing harsh result of dismissing a case where the appellant filed a summons and complaint after serving the other party instead of filing the summons and complaint before such service, as required by SCRCP 5(d)).



III. Order



The South Carolina Department of Corrections's motion to dismiss is hereby GRANTED.



AND IT IS SO ORDERED



______________________________

RAY N. STEVENS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667





Dated: March 13, 2001

Columbia, South Carolina

1. Pursuant to the opinion of the Supreme Court in Al-Shabazz, temporary rules were adopted by the ALJD to apply exclusively to appeals from final decisions of the Department of Corrections. These rules are virtually identical to corresponding ALJD appellate rules 33-41.

2. James E. MacDonald v. S.C. Dep't of Labor, Licensing and Regulation, Real Estate Comm'n, Dkt. No. 99-ALJ-11-0527-AP (Hon. Marvin F. Kittrell, Oct. 27, 1999) (citing Mears and Southbridge decisions and dismissing case for lack of jurisdiction where notice appeal was not filed and served in a timely manner); see Rama Simun, Director, Early Years Learning Center v. S.C. Dep't of Social Services, Dkt. No. 98-ALJ-18-0427-AP (Hon. Marvin F. Kittrell, August 17, 1998) (citing Mears decision and dismissing case for lack of jurisdiction where notice appeal was not filed in a timely manner).


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