ORDERS:
ORDER
STATEMENT OF CASE
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 2.09, entitled "Sexual Misconduct." 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 from the Department on
or about November 15, 2000. (1) On December 18, 2000, Smalls filed this appeal.
BACKGROUND
On June 29, 2000, Officer Malphrus, a DOC employee, was conducting a routine security check at Evans Correctional
Institute. During that check, the Appellant requested a Tylenol. After Officer Malphrus gave the Appellant the medication,
he turned toward her and began stroking his erect penis. Following the incident, Officer Malphrus completed an Incident
Report and submitted it to her supervisor. The Appellant was charged with violating Disciplinary Code 2.09, "Sexual
Misconduct." The Appellant received written notice of the charges on June 30, 2000. On July 6, 2000, the Appellant was
brought before a DOC Disciplinary Hearing Officer (DHO) to face the Sexual Misconduct charge in a Major Disciplinary
Hearing. Though the Appellant waived the Department's offer to provide counsel substitute, one was still present at the
hearing. Additionally, at the Appellant's request, Officer Malphrus was present at the hearing.
During the hearing, the DHO read a narrative of Officer Malphrus' Incident Report into the Record as evidence. At the
conclusion of the hearing, the DHO found the Appellant guilty of Sexual Misconduct 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 Disciplinary Code 2.09.
After reviewing his allegation, the Warden denied the Appellant's grievance on August 18, 2000, finding that there were no
procedural errors in the offense charged or the hearing before the DHO. Afterwards, the Appellant appealed the warden's
decision asking that the Department reverse his loss of "good time" credits 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 Appellant's Brief, the Appellant questioned the actions of the DOC officers and the efficacy of the charging
paperwork. (2)
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). 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 erroneously revoked 120 days of his accrued 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 a "major disciplinary hearing" 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. 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, 276 S.E.2d 304 (1981). Further, 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 assisted him in his defense. After the DHO determined that the Appellant was guilty of the charged offense, she
prepared a written report detailing the evidence she 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 2.09, Sexual Misconduct. A Code 2.09 violation is: "Engaging in sexual acts with others, engaging in sexual acts or
wilful exposure of private body parts in public, or soliciting sexual acts from other, or homosexual conduct involving
physical contact (i.e., kissing)." The record clearly supports the facts recited in the "Background" portion of this Order.
Furthermore, though the Appellant refused to enter a plea, he admitted that the above facts were correct. Those facts
expressly establish a "wilful exposure of private body parts in public."
ORDER
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. It is unclear from the record when Smalls received the Department's Step 2 - Inmate Grievance Form.
2. These arguments were not raised in his Step 2 grievance. An inmate cannot sit silently during a hearing, raising no objections, and then raise
issues such as these for the first time on appeal. 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."). Therefore, I will not specifically address his arguments. |