SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to the appeal of Kenneth Green, an inmate incarcerated with the Department of Corrections (DOC or Department). Green was convicted of violating SCDC Disciplinary Code 2.05, Use of Obscene, Vulgar, or Profane Language or Gestures (Use of Profane Language) and 2.12 Inciting/Creating a Disturbance. As a result of his conviction, Green lost sixty (60) days of "good-time" credit. Green filed a grievance with the Department and received the Department's final decision from the Department January 4, 2001. On January 12, 2001, Green filed this appeal.

On July 17, 2000, Nurse Deese was in the prison attending to inmates. The Appellant asked to speak to her but she refused because she did not have any medications to give him. The Appellant then began banging his door flap with his can of deodorant demanding to see nurse Deese or Captain Coleman. Sergeant Adamson then called Nurse Deese by phone to find out the status of his medication. Sergeant Adamson informed the Appellant that his medicine had been ordered on July 11, 2000, but had not yet arrived at the prison. Afterwards, Sergeant Adamson gave the Appellant several orders to stop banging the can to which the Appellant responded that. "I'm tired of this f**king shit. I've been waiting a f**king month for my medicine." Following the incident, Sergeant Adamson completed an Incident Report. The Appellant was charged with violating SCDC Disciplinary Code 2.05, Use of Profane Language and 2.12 Inciting/Creating a Disturbance. The Appellant received written notice of the charges on July 24, 2000. On August 3, 2000, the Appellant was brought before a DOC Disciplinary Hearing Officer (DHO) to face the 2.05 Use of Profane Language and 2.12 Inciting/Creating a Disturbance charges in a Major Disciplinary Hearing. At the Appellant's request, he was represented by counsel substitute during the hearing. Additionally, at the Appellant's request, Sergeant Adamson was present at the hearing.

During the hearing, the DHO read a narrative of Sergeant Adamson's Incident Report into the Record and received testimony from the Appellant and Sergeant Adamson as evidence. At the conclusion of the hearing, the DHO found that the Appellant was guilty of both charges and sanctioned him with the loss of sixty (60) 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 4, 2000, appealing his conviction of violating SCDC 2.05 and 2.12.

After reviewing his allegation, the Warden denied the Appellant's grievance on October 21, 2000. Afterwards, the Appellant appealed the Warden's decision on November 2, 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 violations the Appellant committed. This appeal followed.

In his Appeal Brief, the Appellant argues that the Department denied him due process. In particular, he argues that the Warden failed to sign SCDC Form 19-29. The Appellant also contends that he was denied due process because he was not afforded assistance in preparing his appeal of this case.

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 improperly revoked sixty (60) days of 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 "major disciplinary hearings" 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 "major disciplinary hearings" 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 to assist 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 Disciplinary Code 2.05, Use of Profane Language, and 2.12 Inciting/Creating a Disturbance. A Code 2.05 violation is: "The act of an inmate who verbalizes or writes lewd or indecent notes or letters to another person, when the person who receives [the] verbal statements, notes or letters complains of such." "Lewd act" is defined as "sexually unchaste or licentious" or "obscene, vulgar." Merriam-Webster OnLine (2002), available at http://www.m-w.com/. Merriam-Webster OnLine further defines "indecent" as "not decent; especially : grossly unseemly or offensive to manners or morals." The Record clearly supports the facts recited in the "Background" portion of this Order which establish substantial evidence that the Appellant made verbal statements that were both "lewd or indecent."

Additionally, a Code 2.12 violation is: "Any act or activity which results in a disruption of institutional operations or a breach of institution security." The facts recited in the "Background" portion of this Order establish substantial evidence that the Appellant exhibited disruption behavior when he banged on his cell door flap with a bottle of deodorant and refused to stop when requested to do so.

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.

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Ralph K. Anderson, III

Administrative Law Judge

November 4, 2002

Columbia, South Carolina