SC Administrative Law Court Decisions

Robert Caprood (Caprood) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Caprood of sexual misconduct for which he lost 30 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Caprood 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 VACATED and this matter REMANDED for a new hearing.

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.

Caprood argues that the DOC decision is made upon unlawful procedure.

Caprood argues the hearing was carried out under unlawful procedure since DOC failed to provide procedural due process. 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)

In the instant case Caprood argues he was not allowed to call a DOC official who was present at the time of the sexual misconduct incident and who potentially could have testified to whether the "exposure of private body parts" was intentional or accidental. ⁽¹⁾ The transcript shows that Caprood asked in advance for an exculpatory DOC officer to be present at his hearing. Further, Caprood's counsel substitute was aware of and even interviewed the exculpatory witness. Finally, during the hearing, Caprood asked that the witness be present and allowed to testify. However, the hearing officer excluded the witness without giving any explanation or reason for the denial. Further, DOC's brief in this matter makes no argument and suggests no rationale on why the witness was excluded.

It is well established that due process requires that an inmate in a disciplinary proceeding be allowed to call exculpatory witnesses and present documentary evidence in his defense. See Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996) (due process violation when inmate denied opportunity to present exculpatory evidence directly undercutting the reliability of the evidence relied upon by the finder of fact); Moran v. Farrier, 924 F.2d 134, 137 (8th Cir. 1991) (due process violation when prison officials failed to call witnesses requested by inmate when decision based upon incomplete record). However, it is equally well established that (as is often the case in a prison setting dealing with inmate due process rights) the right of the inmate to call witnesses may be limited. For example, denial of the right to call a witness is not a due process violation if allowing the witness to testify would be unduly hazardous to institutional safety or correctional goals. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). In addition, while not expressly stated, the Supreme Court has intimated that a prisoner's request for a witness can be denied on the basis of irrelevance or lack of necessity. Ponte v. Real, 471 U.S. 491 (1985). But, in all events, the burden is not upon the inmate to prove that the DOC official was arbitrary and capricious in denying the request, but instead the duty is upon the official to prove the rationality of the position taken. See id., 471 U.S. at 499, 105 S.Ct. at 2197.

DOC has not met its burden in this case. The burden is meet when prison officials provide an explanation of their refusal to allow an inmate to call a witness at a disciplinary hearing with that explanation made either on the record during the hearing or in court if the denial is subsequently challenged. See Ponte v. Real, 471 U.S. 491, 497 (1985); Turner v. Caspari, 38 F.3d 388, 390 (8th Cir. 1994) (no due process violation where reasons for denial of witnesses given at trial).

Here, the transcript reveals that the hearing officer gave no explanation for the exclusion of the witness. Further, DOC's brief gives no rationale for excluding the witness. Accordingly, Caprood did not receive the benefit of a properly conducted hearing.

The guilty verdict entered by DOC against Robert Caprood is VACATED and this matter REMANDED for a new hearing.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 25, 2002

Columbia, South Carolina

1. Caprood was charged and convicted of"willful exposure of private body parts in public." Thus, the willfulness of the act in question was an issue for the hearing officer to decide.