ORDERS:
ORDER OF DISMISSAL
Grievance No. LEE 0683-00
I. Introduction
South Carolina Department of Corrections, (DOC) brings this motion to dismiss on the ground that Broderick Elliott Culp,
#175645, (Culp) failed to serve DOC with the notice of appeal within 30 days of written notice of DOC's final decision.
DOC seeks the dismissal under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000) and ALJD Rule 62. Culp filed
no written opposition to the motion.
II. Analysis
This Division has jurisdiction to hear this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al-Shabazz, the S.C. Supreme Court stated:
The inmate must file and serve a notice of appeal upon specified parties within thirty days of written notice of Department's
final decision.
(emphasis added). The controlling language of ALJD Rule 59 states:
The notice of appeal from the final decision of DOC to be heard by the [Division] shall be filed with the Division and a
copy served on each party and DOC within thirty (30) days of receipt of the decision from which the appeal is taken.
(emphasis added)
Thus, DOC must be served with a copy of the notice of appeal within thirty (30) days of appellant's receipt of DOC's final
decision. In this case, DOC was not served with the notice of appeal within 30 days of Culp's receipt of the DOC's final
decision. Accordingly, this matter must be dismissed for lack of jurisdiction.
A court must dismiss an appeal when the appellant fails to serve a party with the notice of appeal in a timely manner. See
Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355 S.E.2d 535 (1987) (applying appellate court rules and dismissing
case for failure to serve a notice of intent to appeal in a timely manner); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206
(1985) (applying appellate court rules and finding lack of jurisdiction for failure to serve a notice of intent to appeal in a
timely manner). Further, a court does not have the authority to extend the time for taking an appeal from a decision of an
administrative agency. E.g., Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnette v. S.C. State Highway Dep't,
252 S.C. 568, 167 S.E.2d 571 (1969) (addressing an appeal from the Board of Condemnation).
While the ALJD recognizes the harsh result of this decision, an ALJ is constrained by the applicable rules and the legal
precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994) (recognizing harsh result of
dismissing a case where the appellant filed a summons and complaint after serving the other party instead of filing the
summons and complaint before such service, as required by SCRCP 5(d)).
III. Order
The South Carolina Department of Corrections,'s motion to dismiss is hereby GRANTED and this case is ended.
AND IT IS SO ORDERED
______________________________
RAY N. STEVENS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
Dated: October 2, 2001
Columbia, South Carolina |