SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). Appellant Bruce Howell appeals the decision of the South Carolina Department of Corrections (DOC or Department) to revoke twenty days of his "good-time" credit as punishment for making an obscene statement in violation of DOC Disciplinary Code § 2.05, Use of Obscene, Vulgar, or Profane Language or Gestures. Having reviewed the record, I find it to be insufficient for this tribunal to make an intelligent review of Appellant's claims, and therefore order that this matter be remanded to the Department for further proceedings.BACKGROUND

On April 26, 2000, Appellant allegedly made a vulgar and somewhat threatening statement to Officer Harold Cobb. Accordingly, Appellant was charged with a violation of DOC Disciplinary Code § 1.04, Threatening to Inflict Harm on an Employee. At the hearing of the charge, a DOC Disciplinary Hearing Officer (DHO) reduced the charge to a violation of DOC Disciplinary Code § 2.05, Use of Obscene, Vulgar, or Profane Language or Gestures, and found Appellant guilty of the reduced charge. As punishment, the DHO revoked twenty days of Appellant's good-time credit. Appellant appealed his conviction to the Department, and then to this tribunal.

ANALYSIS

In Al-Shabazz, the South Carolina Supreme Court held that inmates may seek review of final decisions of the Department in certain "non-collateral" or administrative matters (i.e., those matters in which an inmate does not challenge the validity of a conviction or sentence) by appealing those decisions to the ALJD pursuant to the South Carolina Administrative Procedures Act (APA). Al-Shabazz, 338 S.C. at 376, 527 S.E.2d at 754. In McNeil v. South Carolina Department of Corrections, a majority of the judges of the ALJD, sitting en banc, held that this tribunal's jurisdiction to hear inmate appeals under Al-Shabazz is limited to: (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. McNeil v. S.C. Dep't of Corrections, No. 00-ALJ-04-00336-AP, slip op. at 4-5 (S.C. Admin. Law Judge. Div. Sept. 5, 2001) (en banc). In the case at hand, Appellant contends that the Department improperly revoked twenty days of his good-time credit as punishment in a major disciplinary hearing; accordingly, this tribunal has jurisdiction over this matter.

When reviewing the Department's decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754. Consequently, this tribunal's review of inmate appeals is confined to the record presented, id., and its inquiry into these matters is primarily concerned with ensuring that the Department has granted aggrieved inmates the process they are due when their constitutional rights are implicated. Id. at 369, 527 S.E.2d at 750; McNeil, No. 00-ALJ-04-00336-AP, at 5 ("[O]ur review is limited solely to the determination of whether the Department granted 'minimal due process' in reaching [its] decisions . . . ."). Further, recognizing that prison officials are in the best position to decide inmate disciplinary matters, this tribunal will adhere to the traditional "hands off" approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz, 338 S.C. at 382, 527 S.E.2d at 757; see also Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779 (1980) (stating the traditional "hands off" approach of South Carolina courts regarding internal prison discipline and policy). However, notwithstanding this deferential standard of review, this tribunal must conduct meaningful review of the Department's actions to ensure that inmate grievances are addressed in a fair, reasonable, and efficient manner. Al-Shabazz, 338 S.C. at 383, 527 S.E.2d at 757.

In the present case, this tribunal is unable to conduct meaningful review of the Department's actions. While normally the "grievance procedure [the] Department has established is sufficient to give an inmate a method to raise the matter to prison officials and create a reviewable record," id. at 375, 527 S.E.2d at 753, this record must at least contain "all pleadings, evidence received or considered, . . . the [Department's] final order," and, if the grievance involves a major disciplinary hearing, "pertinent portions of the tape recording of the hearing or a properly transcribed record of the hearing." Id. at 377, 527 S.E.2d at 754. If the record in an inmate grievance matter does not contain these requisite elements, this tribunal cannot conduct an intelligent review of the Department's denial of the inmate's grievance, nor reach any resolution of the appeal before it. See, e.g., D&D Leasing Co. of S.C. v. Gentry, 298 S.C. 342, 380 S.E.2d 823 (1989) (stating that an appellate court cannot address an issue where the supporting record is incomplete); Vespazianni v. McAlister, 307 S.C. 411, 415 S.E.2d 427 (Ct. App. 1992) (same); see also State v. Barbee, 280 S.C. 328, 313 S.E.2d 76 (Ct. App. 1985) (holding that it was error for a circuit court to hear an appeal from magistrate's court in the absence of a record filed by the magistrate).

In the case at hand, Appellant was convicted of using obscene language at a major disciplinary hearing. The Department, however, has failed to present this tribunal with a properly transcribed record of that hearing. ⁽¹⁾ Significant portions of the testimony offered and statements made at Appellant's disciplinary hearing could not be transcribed due to the poor quality of the tape recording of the hearing. Because the record is insufficient for an appellate tribunal to make an intelligent review, this case must be remanded to the Department to conduct a hearing and make further findings and rulings in order to establish a reviewable record. See David E. Shipley, South Carolina Administrative Law 7-57 (2d ed. 1989); see also Snider v. S.C. Dep't of Labor, Licensing and Regulation, No.98-ALJ-11-0394-AP (S.C. Admin. Law Judge Div. Nov. 13, 1998) (remanding case to agency for a new contested case hearing where tape recording of prior hearing was destroyed before a transcript could be made for the record).

IT IS THEREFORE ORDERED that this case is REMANDED to the Department to conduct, within thirty (30) days of the date of this Order, a hearing and make a transcribed record of the hearing sufficient for appellate review by this tribunal. In the alternative, the Department may grant Appellant the relief requested in his grievance in lieu of conducting a new hearing.

AND IT IS SO ORDERED.

JOHN D. GEATHERS

Administrative Law Judge

February 14, 2002

Columbia, South Carolina

1. Although generally "[t]he appealing party has the burden of furnishing a sufficient record from which [a] court can make an intelligent review," Hamilton v. Greyhound Lines East, 281 S.C. 442, 444, 316 S.E.2d 368, 369 (1984), the Department has the duty of providing the record on appeal in inmate grievance matters. See Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754; see also ALJD Rule 59 ("Within forty-five (45) days of the date the case is assigned to an Administrative Law Judge (date of assignment), DOC shall file the record with the Division . . . .").