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SC Administrative Law Court Decisions

Jerome Hart, #258500, vs. SCDOC

South Carolina Department of Corrections

Jerome Hart, #258500,

South Carolina Department of Corrections





This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Jerome Hart, an inmate incarcerated with the Department of Corrections ("Department") since April 15 ,1999. On September 25, 2000, Hart was convicted of violating SCDC Disciplinary Code 2.01, Use or Possession of Any Alcoholic Beverage, and 2.10, Fighting without a Weapon. As a result of his conviction, Hart lost 80 days of "good-time" credit. Hart filed a grievance with the Department and received the Department's final decision on December 18, 2000. On January 16, 2001, Hart filed this appeal.


On September16, 2000, Officer Bush received information from a reliable, confidential informant that a fight had broken out on A-Wing between two inmates. When Officer Bush arrived in A-Wing, she observed Hart and another inmate, John Ingram, running away from each other with blood on their clothes. Because they appeared to be intoxicated, both inmates were subjected to a SM-6 Sober Meter Test. Both tested positive for being under the influence of intoxicating beverages. After receiving treatment in the infirmary for their injuries, both inmates were placed in Pre-Hearing Detention. Sergeants Marshall and Corley investigated the incident, finding the cell in which the fight occurred in disarray, with blood on the floors and walls. In addition, the officers found a bucket of "buck," a home-made wine. The officers then interviewed the inmates. Inmate Ingram stated that he went to Hart's cell to buy some buck. When Ingram returned with a container, a fight broke out, during which Ingram was struck in the mouth with what was later determined to be a can of sardines. Hart admitted that he and Ingram had been drinking, but denied fighting. Instead, Hart told the officers that he and Ingram had been horseplaying, later adding that he did want Ingram out of his cell.

After the incident, Sergeant Marshall and Corley each completed an Incident Report, which were submitted to their supervisor. Hart was charged with violating SCDC Code 2.01, Use, Possession, Distilling and/or Brewing of Any Alcoholic Beverage; 2.10, Fighting without a Weapon; and 2.12, Inciting or Creating a Disturbance. Hart received written notice of the charges on September 18, 2000. The hearing was held on September 25, 2001, before a Disciplinary Hearing Officer ("DHO"). Hart, who was represented by counsel substitute, pleaded guilty to the Possession charge and testified that he did have the buck and that he had been drinking. Hart then testified that he and Ingram were just playing around when Ingram was bumped by the cell door, causing Ingram's injuries. Hart also testified that he had been cleaning his room when Ingram came in, accounting for the disarray. In addition, Hart's accuser, Sergeant Marshall, testified regarding the incident and was cross-examined by counsel substitute. At the conclusion of the hearing, the DHO informed Hart that she would accept his guilty plea on the Possession charge. Based on the officer's testimony that the wing was locked down so that the blood could be cleaned up and not because the fight attracted a crowd, the DHO found Hart not guilty of the Inciting a Riot charge. In addition, the DHO informed Hart that she found him guilty of fighting and that he would be sanctioned with the loss of 80 days of good time credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), which documented the DHO's findings based on Sergeant Marshall's report, photographs of the scene, the positive SM-6 test, and Hart's testimony. Finally, the Hearing Record reflects that Hart lost 80 days of good-time credit as a result of the convictions.

Hart filed a grievance on October 2, 2000, appealing his conviction. That same day, the Warden denied his grievance, finding substantial evidence of Hart's guilt. On October 16, 2000, Hart appealed the warden's decision. 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. In his Brief, Hart argues that his due process rights were violated by the Department's failure to produce his accuser and credible witnesses for cross-examination. In addition, Hart alleges that the DHO failed to allow him to present his own witnesses. 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, Hart alleges that he lost 80 days of good time after he was wrongfully convicted of a prison disciplinary infraction. As such, I find that this tribunal has jurisdiction to hear Hart'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 Hart was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Hart 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, Hart was afforded counsel substitute to assist him in his defense. He was given the opportunity to offer evidence. Hart's accuser, Sergeant Marshall, was present during the hearing and was cross-examined by Hart's counsel substitute. The DHO prepared written reports detailing the evidence she relied upon and the penalty assessed in finding Hart guilty of the disciplinary infractions. Finally, Hart was permitted to appeal the DHO's decision through the inmate grievance process. In his Brief, Hart alleges that he was denied the opportunity to present his own witnesses. However, at no time during the hearing did Hart request a witness, nor did he make a written request for a witness prior to the hearing. In addition, Hart alleges that the Department failed to produce his accuser and instead relied upon the confidential informant's statement that he was fighting. Due process does not require confrontation and cross-examination. See Wolff, 418 U.S. at 568. Moreover, the Record amply demonstrates that the Department did make available Hart's accuser, Sergeant Marshall, who both testified and was cross-examined during Hart's hearing. In addition, Sergeant Marshall's report states that Inmate Ingram accused Hart of hitting him in the mouth with a can. Finally, Hart failed to raise these issues during his hearing. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal

Additionally, I find there is substantial evidence to support both Hart's convictions and his sanction. Hart pleaded guilty to Possession, and admitted drinking the buck. His SM-6 test was positive. As to his conviction of 2.10, Sergeant Marshall testified that a confidential informant stated that Hart and Ingram were fighting and that Ingram told him that Hart had hit him with a can. In addition, Officer Bush observed the inmates running from one another and bleeding. Both inmates required medical care. Therefore, I cannot find that the decision of Respondent was clearly erroneous, or arbitrary or capricious or an abuse of discretion, in view of the substantial evidence on the whole record. Accordingly, the Department's final decision is affirmed.


IT IS THEREFORE ORDERED that the appeal of Hart is DISMISSED and the Final Decision of the Department is AFFIRMED.





December 3, 2001

Columbia, South Carolina

Brown Bldg.






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