SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Joseph Bradley, an inmate incarcerated with the Department of Corrections (DOC or Department). On July 13, 2000, Bradley was convicted of violating SCDC Disciplinary Code § 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs, after pleading not guilty to the charge. As a result of his conviction, Bradley lost 220 days of "good-time" credit. Bradley filed a grievance with the Department and received the Department's final decision on September 14, 2000. On September 25, 2000, Bradley filed this appeal.

On July 7, 2000, the Appellant was administered a random drug test at the Livesay Pre-release Center by Corporal Alberts. The Appellant tested positive for marijuana. He then requested that a confirmation test be performed, which also tested positive for marijuana.

After the incident, Officer Foster completed an Incident Report and submitted it to his supervisor. The Appellant was charged with violating SCDC Disciplinary Code § 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs. The Appellant received written notice of the charges on July 7, 2000. The hearing was held on July 13, 2000 before a Disciplinary Hearing Officer (DHO), who read into the Record a narrative of Officer Foster's Incident Report. During the hearing, the Appellant was represented by counsel substitute and pleaded not guilty to the charge. At the conclusion of the hearing, the DHO found the Appellant guilty and sanctioned him with the loss of 220 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 July 17, 2000, appealing his conviction of violating SCDC Disciplinary Code § 1.10. In that grievance, the Appellant argued that the administered drug test was tampered with or incorrect . On August 9, 2000, the Warden denied the Appellant's grievance. He appealed the Warden's decision on August 16, 2000, setting forth that he did not know that his urine cup was to remain in his sight at all times. The Department denied his grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violation that the Appellant committed. This appeal followed. In his brief, the Appellant alleges that he is not guilty of using of marijuana and that the penalty imposed for this violation of SCDC Disciplinary Code § 1.10 was excessive because under the state and federal "sentencing guidelines," the maximum penalty for a similar possession of marijuana was only thirty (30) days in jail and/or a fine. ⁽¹⁾

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. That 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 excessively revoked 220 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 "major disciplinary hearings" 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 a "major disciplinary hearing" involving "more serious rule violations" comports 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. Id. 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, 135, 276 S.E.2d 304, 306 (1981). Furthermore, the possibility of drawing two (2) 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, that 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 twenty-four (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, which he waived. In addition, although not constitutionally required, the Appellant was afforded the right to counsel substitute to assist him in his defense. 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.

Moreover, I find that there is substantial evidence to support the Appellant's conviction of violating DOC Disciplinary Code § 1.10, The Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs, Including Prescription Drugs. A Code 1.10 violation, in part, is: "Any inmate testing positive for any unauthorized drug, refusing to submit to a drug test, or failing to produce a specimen within three (3) hours as specified in SCDC Policy/Procedure GA-30.03." The record clearly supports the facts recited in the "Background" portion of this Order. Those facts establish substantial evidence that both tests were properly administered and, thereafter, that the Appellant tested positive for an "unauthorized drug."

Additionally, it is irrelevant that the 220 days of "good-time" credit the Department revoked from the Appellant as punishment for using marijuana exceeds the thirty (30) day maximum sentence for a first conviction for the possession of marijuana under state or federal laws. The Appellant was properly charged with a violation of, and punished under, the DOC's Disciplinary Code, not S.C. Code Ann. Section 44-53-370 . Furthermore, it must be recognized that prison disciplinary offenses and the punishments imposed for violations of them do not, and need not, correspond to provisions in non-prison-related criminal statutes. Walpole v. Hill, 472 U.S. at 456 ("Revocation of good time credits is not comparable to a criminal conviction. . . .").

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

July 22, 2002

Columbia, South Carolina

1. The Appellant also contends that this conviction has resulted in repercussions on his custody status and sentence. 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.").