SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Charles H. Gove, an inmate incarcerated with the Department of Corrections (Department). On October 3, 2000, Gove was convicted of violating SCDC Disciplinary Code 2.12, Inciting/Creating a Disturbance after pleading guilty to the charge. As a result of his conviction, Gove lost 20 days of "good-time" credit. Gove filed a grievance with the Department and received the Department's final decision on December 22, 2000. On January 5, 2001, Gove filed this appeal with the Division.

On September 23, 2000, the Appellant was found in his bed without his uniform on during the inmate count. After the incident, Officer Glenn completed an Incident Report and submitted it to her supervisor. The Appellant was charged with violating SCDC Code 2.12, Inciting/Creating a Disturbance. The Appellant received written notice of the charges on September 26, 2000. The hearing was held on October 3, 2000, before a Disciplinary Hearing Officer (DHO), who read into the Record a narrative of Officer Glenn's Incident Report. During the hearing, the Appellant, was represented by counsel substitute. At the conclusion of the hearing, the DHO informed the Appellant that he was found guilty and that he would be sanctioned with the loss of twenty (20) 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 October 7, 2000, appealing his conviction of violating SCDC 2.12. In that grievance, he alleged that he was denied due process in that the Department did not informally resolve this grievance. In addition, the Appellant alleged that he was not treated equally in relation to other inmates who committed similar offenses.

On November 6, 2000, the Warden denied the Appellant's grievance. He appealed the Warden's decision on November 13, 2000, asking that the Department reverse his loss of "good- time" credits. 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 alleges that was denied due process because the Department did not seek to informally resolve this grievance. He also contends that he was not provided a counsel substitute until twenty (20) minutes prior to the disciplinary hearing. ⁽¹⁾

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 twenty (20) 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 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. 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) (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). 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 twenty-four (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, 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 Code 2.12, Inciting/Creating a Disturbance. A Code 2.12 violation is: "Any act or activity which results in a disruption of institutional operations or a breach of institutional security." Furthermore, "[a]ny inmate who . . . acts individually in such a way as to cause a disruption of institutional operations, such as interfering with an institutional count . . . " is guilty of a Code 2.12 violation. The Record reflects that after the Department notified the inmates to avail themselves for counting, the Appellant continued to sleep and was not in uniform. In fact, at the hearing, the Appellant stated that he was neither awake nor in uniform which was tantamount to an admission of guilt.

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

October 28, 2002

Columbia, South Carolina

1. This argument was not raised below. 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, this argument will not be considered. Moreover, in Al-Shabazz the Court (citing the U.S. Supreme Court decision in Wolff) held that a "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." The Appellant has provided no evidence which established that he was illiterate or could not handle his case alone.