SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of James McNeil, an inmate incarcerated with the Department of Corrections (DOC or Department). McNeil was convicted of violating SCDC Disciplinary Code 1.03, entitled "Striking an Employee with or without a Weapon" (Striking an Employee) and Disciplinary code 2.13, entitled "Refusing or Failing to Obey Orders." As a result of his conviction, McNeil lost 240 days of "good time" credit. McNeil filed a grievance with the Department and received the Department's final decision on September 15, 2000. On September 21, 2000, McNeil filed this appeal.

On August 4, 2000, Officer Smith, a DOC employee, was working the Security Management Unit in Lieber Correction Institution. The Appellant was ordered several times to stop kicking his cell door. When refused to obey orders, Officer Smith opened the food service door and administered two short bursts of chemical spray into his cell. The Appellant responded by throwing coffee on Officer Smith. ⁽¹⁾ After the incident, Officer Smith completed an Incident Report and submitted it to his supervisor. The Appellant was charged with violating SCDC Disciplinary Code 1.03, Striking an Employee, and SCDC Disciplinary Code 2.13, Refusing or Failing to Obey Orders. He received written notice of the charges on August 4, 2000.

On August 10, 2000, the Appellant was brought before a DOC Disciplinary Hearing Officer (DHO) to face the above-listed charges in a Major Disciplinary Hearing. At the Appellant's request, he was represented by counsel substitute during the hearing. Additionally, at the Appellant's request, Officer Smith was present at the hearing. During the hearing, the DHO read a narrative of Officer Smith's Incident Report into the record as evidence. At the conclusion of the hearing, the DHO found the Appellant guilty of Striking an Employee and Refusing or Failing to Obey Orders and sanctioned him with the loss of 240 days of good time credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record, which documented the DHO's findings.

The Appellant filed a grievance on August 14, 2000, appealing his conviction of violating SCDC Disciplinary Codes 1.03 and 2.13. After reviewing his allegation, the Warden denied the Appellant's grievance on August 16, 2000, finding that there were no procedural errors in the offenses charged or his hearing. McNeil appealed the Warden's decision on August 21, 2000. The Department denied his grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violations that the Appellant committed. This appeal followed.

In his Appellant's Brief, the Appellant alleges he was denied the request to call witnesses on his behalf and he was not provided with a counsel substitute 24 hours prior to the hearing. ⁽²⁾

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 McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), the Division issued an En Banc Order 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, the Appellant alleges that the Department improperly revoked 240 days of good time. Inmates have a protected liberty interest in their earned statutory good time credits under the Fourteenth Amendment. Therefore, when, as here, the Department revokes an inmate's good-time credits as punishment in a "major disciplinary hearing" involving "more serious rule violations," prison officials must provide that inmate with "minimal due process." Al-Shabazz, 338 S.C. at 370, 527 S.E.2d at 750. Consequently, specific administrative procedures must be followed before depriving an inmate of statutorily granted earned credit, 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).

In Al-Shabazz, the Court held that inmates may seek review before this Division to ensure that the Department's revocation of good-time credits as punishment in "major disciplinary hearings" involving "more serious rule violations" comport with "minimal due process." The ALJD 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. When reviewing the Department's decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz Consequently, the review in these inmate grievance cases is limited to the record presented. Furthermore, an Administrative Law Judge may not substitute his judgment for that of an agency unless the agency's determination is arbitrary, 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) (1986 & Supp. 2001); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756. "'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, 276 S.C. 130, 276 S.E.2d 304 (1981). Furthermore, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

Additionally, in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768 (1985), the U.S. Supreme Court held that the relevant question is

whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. Moreover, in Al-Shabazz the Court underscored that since prison officials are in the best position to decide inmate disciplinary matters, the Courts and therefore this Division adhere to a "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).

I find that the Appellant was afforded all process due him pursuant to Al-Shabazz. The record indicates that the Appellant received written notice of the charges against him in excess of 24 hours prior to a hearing that was held before an impartial Disciplinary Hearing Officer. At the hearing, the Appellant was given the opportunity to offer evidence, call witnesses, and confront his accuser. ⁽³⁾ In addition, although not constitutionally required, the Appellant was afforded a counsel substitute who to assisted him in his defense. ⁽⁴⁾ After the DHO determined that the Appellant was guilty of the charged offense, he prepared a written report detailing the evidence he relied upon and the penalty assessed in finding the Appellant guilty of the disciplinary infraction. Finally, the Appellant was permitted to appeal the DHO's decision through the inmate grievance process.

IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and the Final Decision of the Department is AFFIRMED;

AND IT IS SO ORDERED.

_________________________________

Ralph K. Anderson, III

Administrative Law Judge

September 26, 2002

Columbia, South Carolina

1. A Code 1.03 violation is: "The wilful causing of bodily injury to a SCDC employee with or without a weapon." (emphasis added).

2. The Appellant also contends that his hearing was not held before an impartial hearing officer and that he was improperly charged with Striking an Employee and Refusing or Failing to Obey Orders on the same incident report in violation of SCDC policy. These arguments were not raised below. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. Therefore, these arguments will not be considered. See Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 458 S.E.2d 542 (1995) (In reviewing a final decision of an administrative agency, the Administrative Law Judge "has a limited scope of review, and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency."). Morever, I find that he failed to establish that his hearing officer was not impartial or that he was improperly charged.

3. The witnesses the Appellant requested to call were not witnesses to the events of this case and the Appellant failed to establish how their testimony would be otherwise relevant. In particular, the Appellant's counsel substitute specifically stated that Officer Kelly, a witnesses the Appellant contends witnessed the incident, informed him that she was not on the wing when the incident occurred.

4. The Appellant contends that he was entitled to be provided with a counsel substitute 24 hours prior to the hearing pursuant to Wolff, supra. However, the policy which the Appellant argues supports his position was not in effect at the time of the hearing. Moreover, the U.S. Supreme Court did not require that an inmate be provided a counsel substitute 24 hours prior to the hearing. The Court held that: "Where an illiterate inmate is involved, however, or whether the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff." Wolff, at 94 S.Ct. 2982. Here, the Appellant did not allege or establish that he was either illiterate or that this case was of sufficient complexity to necessitate assistance in presenting his case. Furthermore, the Appellant has filed and litigated numerous cases involving disciplinary matters. Therefore, he failed to establish that he was entitled to a counsel substitute.