ORDERS:
ORDER OF DISMISSAL
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of John Wilmore, an
inmate incarcerated with the Department of Corrections ("Department"). On June 8,2000, Wilmore was convicted of
SCDC Disciplinary Code 1.10, Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs. As a result of his
conviction, Wilmore lost 240 days of "good-time" credit. Wilmore filed a grievance with the Department and received the
Department's final decision on October 23, 2000. On November 22, 2000, Wilmore filed this appeal.
II. BACKGROUND
On June 1, 2000, Lieutenant Smith conducted a routine shakedown of Inmate Wilmore and his property. During the search,
Lt. Smith found seven packets of white paper containing a green leafy substance. The Contraband Officer tested the green
leafy substance , and the results indicated positive for marijuana.
After the incident, Lt. Smith completed an Incident Report and submitted it to his supervisor. Wilmore was charged with
violating SCDC Code 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Drugs. Wilmore received written
notice of the charges on June 5, 2000. The hearing was held on June 8, 2000, before a Disciplinary Hearing Officer
("DHO"). Wilmore waived his accuser's presence at the hearing. During the hearing, when asked by the DHO if there was
anything he needed to say, Wilmore said "No, Sir." At the conclusion of the hearing, the DHO informed Wilmore that he
had been found guilty of the charges and would be sanctioned with the loss of 240 days of good time with credit for time
served in SMU. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing
Record"), which documented the DHO's findings based on th officer's Report that the inmate had possession of marijuana.
Finally, the Hearing Record reflects that Wilmore lost 240 days of good-time credit as a result of the conviction.
Wilmore filed a grievance on June 22, 2000, appealing his conviction of violating SCDC 1.10. On August 23, 2000, the
Warden denied his grievance, finding credible evidence of Wilmore's guilt. On September 1, 2000, Wilmore appealed the
warden's decision, alleging there was no evidence presented. In addition, Wilmore alleged that the Department violated
SCDC Policy OP-22.14, Inmate Disciplinary System, by failing to produce any credible evidence, even a toxicology report.
The Department denied his grievance, finding that the evidence presented was sufficient to support his conviction and that
the sanction imposed was appropriate. This appeal followed. III. ANALYSIS
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). On September 5, 2001, the Division issued an En Banc Order
in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), 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, Inmate Wilmore alleges that he lost 240 days of good time after he was convicted of a prison disciplinary
infraction in violation of his due process rights. As such, I find that this tribunal has jurisdiction to hear Inmate Wilmore's
appeal.
The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz,
338 S.C. at 369-370, 527 S.E.2d at 750. An inmate facing the loss of sentence related credits is entitled to minimal due
process to ensure that the state-created right is not arbitrarily abrogated. Id. While due process is "flexible and calls for
such procedural protections as the particular situation demands," Stono River Envtl. Protection Ass'n v. S.C. Dept. Of
Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 30, 341 (1991), certain elements must be satisfied in order for
procedural due process requirements to be met, 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).
As in all cases subject to appellate review by the Division, the standard of review in these inmate grievance cases is limited
to the record presented. An Administrative Law Judge may not substitute his judgment for that of an agency unless the
agency's determination is 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; Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Moreover, to afford "meaningful judicial review," the
Administrative Law Judge must "adequately explain" his decision by "documenting the findings of fact" and basing his
decision on "reliable, probative, and substantial evidence on the whole record." Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at
756.
I find that Wilmore was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Wilmore was
given written notice of the charges in excess of 24 hours prior to his hearing before an impartial hearing officer. In
addition, although not constitutionally required, Wilmore was afforded counsel substitute to assist him in his defense.
Further, although he chose not to do so, Wilmore was given the opportunity to offer evidence and witnesses. Wilmore
waived his right to have his accuser present. The DHO prepared a written report detailing the evidence he relied upon and
the penalty assessed in finding Wilmore guilty of the disciplinary infraction. Finally, Wilmore was permitted to appeal the
DHO's decision through the inmate grievance process. Wilmore alleges that SCDC Policy OP-22.14 required the items of
contraband or a picture of the item be produced at the hearing and that the DHO must have available a copy of SCDC
Form 19-79. Wilmore alleges that he was denied due process by the failure to follow the procedures of OP-22.14.
However, Wilmore failed to raise these issues during his hearing. Instead, when the DHO asked whether he had anything
to say, Wilmore responded, "No, Sir." An inmate cannot sit silently during a hearing, raising no objections, and then raise
issues such as these for the first time on appeal. Moreover, Wilmore must accept that every failure of the Department to
follow its own policies and procedures, whether deliberate or inadvertent, is not a violation of due process. Only if the
Department's failure adversely affects an inmate's life, liberty, or property right is an inmate's right of due process
implicated. In his silence, Wilmore failed to offer any evidence that the Department's alleged failure to follow SCDC
Policy OP-22.14 adversely affected his liberty interests. Accordingly, the Department's final decision is affirmed.
V. ORDER
IT IS THEREFORE ORDERED that the appeal of Wilmore is DISMISSED and the Final Decision of the Department is
AFFIRMED;
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 6, 2001
Columbia, South Carolina |
