SC Administrative Law Court Decisions

Timothy Akers (Akers) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Akers of being out of place for which he lost 40 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Akers was punished by the loss of good time credits, a loss which impacts a created liberty interest. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000); McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). After a review of the record and the arguments, the DOC decision is AFFIRMED.

In this review, the Administrative Law Judge (ALJ) acts "in an appellate capacity" and is "restricted to reviewing the decision below." Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 754 (2000). The review must apply the criteria of S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000). See S.C. Code Ann. § 1-23-380(B) (Supp. 2000) (where an ALJ is directed to conduct a review "in the same manner prescribed in [§ 1-23-380](A)."). Section 1-23-380(A)(6) establishes the following:

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In this case, Akers argues that the DOC decision is made upon unlawful procedure.

Akers argues the hearing was carried out under unlawful procedure since DOC failed to follow adequate due process procedures during the hearing.

Due process for an inmate subjected to the loss of good time credits requires the following procedures:

(1) that advance written notice of the charge be given to the inmate at least twenty-four hours before the hearing; (2) that factfinders must prepare a written statement of the evidence relied on and reasons for the disciplinary action; (3) that the inmate should be allowed to call witnesses and present documentary evidence, provided there is no undue hazard to institutional safety or correctional goals; (4) that counsel substitute (a fellow inmate or a prison employee) should be allowed to help illiterate inmates or in complex cases an inmate cannot handle alone; and (5) that the persons hearing the matter, who may be prison officials or employees, must be impartial. Wolff, 418 U.S. 563-72, 94 S.Ct. 2978-82, 41 L.Ed.2d at 954-60.

Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 751 (2000)

Akers argues that he was not allowed to call witnesses since he was not given the right to have his accuser present and that the hearing officer took additional evidence outside the presence of the inmate thus preventing the right to confront the witness. I disagree with Akers' argument.

First, no basis exists for Akers' claim that he was not afforded the right to have his accuser present. Rather, on February 2, 2000, Akers signed and dated a statement explaining that he did not want his accuser present at the hearing. Accordingly, the right to have the accuser present was granted but declined by Akers.

Second, the record shows that Akers explained to the hearing officer that Akers had been given permission to be out of his cell to take a shower and that permission had been given by an officer of DOC. Thus, Akers' defense was that he was not out of place since he had been given permission to leave his cell. The hearing officer told Akers at the hearing that the conclusion of the matter would be held open until additional information could be obtained from the officer from whom Akers alleged permission had been given to take a shower. However, the record shows that while the hearing officer attempted to obtain the information none was obtained. Instead, the officer was not longer in the employment of DOC and thus, no additional evidence was obtained. Therefore, even if a procedural violation could occur from obtaining additional evidence, such did not happen in the instant case and no due process right was infringed.

The guilty verdict entered by DOC against Timothy Akers is AFFIRMED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 18, 2002

Columbia, South Carolina