SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Alvin Smalls, an inmate incarcerated with the Department of Corrections (DOC or Department). Smalls was convicted of violating SCDC Disciplinary Code 1.04, entitled "Threatening to Inflict Harm on an Employee." As a result of his conviction, Smalls lost 120 days of "good-time" credit. Smalls filed a grievance with the Department and received the Department's final decision on September 20, 2000. On September 29, 2000, Smalls filed this appeal.

On July 5, 2000, Officer Abner, a DOC employee, gave the Appellant an order to return his shovel and resume his assigned field work. The Appellant stated to Officer Abner that, "I ain't pulling no f***ing grass, f*** that, you don't know who you are f***ing playing with, I'll f*** you up." The Appellant then threw his shovel toward Officer Abner. Following the incident, Officer Abner completed an Incident Report and submitted it to his supervisor. The Appellant was charged with violating SCDC Disciplinary Code 1.04, "Threatening to Inflict Harm on an Employee." The Appellant received written notice of the charges on July 6, 2000. On July 12, 2000, the Appellant was brought before a DOC Disciplinary Hearing Officer (DHO) to face the "Threatening to Inflict Harm on an Employee" charge in a major disciplinary hearing. At the Appellant's request, he was represented by counsel substitute during the hearing and Officer Abner was present at the hearing.

During the hearing, the DHO read a narrative of Officer Abner's Incident Report into the record and received testimony from witnesses as evidence. At the conclusion of the hearing, the DHO found that the Appellant was guilty of "Threatening to Inflict Harm on an Employee" and sanctioned him with the loss of 120 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 12, 2000, appealing his conviction of violating SCDC 1.04.

After reviewing his allegation, the Warden denied the Appellant's grievance. Afterwards, the Appellant appealed the warden's decision asking that the Department reverse his loss of good-time credit because the counsel substitute did not properly evaluate the evidence and failed to adequately perform her duties. 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 Appeal Brief, the Appellant questions the actions of the officers and why a "6:00 A.M. hearing" was held in his absence. He also argues that some of his paperwork is missing and that his counsel substitute was incompetent.

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 excessively revoked 120 days of his 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 "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) (Supp. 1999); 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. In addition, although not constitutionally required, the Appellant was afforded a counsel substitute who to assisted him in his defense. ⁽¹⁾ 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 SCDC Disciplinary Code 1.04, "Threatening to Inflict Harm on an Employee." A Code 1.04 violation is:

Communication, verbal or written, by an inmate to an individual that s/he intends to injure that person or commit a violent or unlawful act dangerous to human life, presently or in the future; or one who commits a physical act of a threatening nature, and the probable results of such threats or action is to place the individual in fear of bodily injury . . . .

The record clearly supports the facts recited in the "Background" portion of this Order. Those facts expressly establish that the Appellant communicated a threat of committing a physical act that could have placed Officer Abner in fear of bodily injury.

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. The U.S. Supreme Court did not require that all inmates be provided a counsel substitute. In Wolff, 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, a review of the record reflects that his counsel substitute was not incompetent. Therefore, he failed to establish that he was either entitled to a counsel substitute or that his counsel substitute was incompetent.