SC Administrative Law Court Decisions

Wilson Kinard # 186834 (Kinard) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Kinard of striking an inmate with or without a weapon. After a review of the record and the arguments, the DOC decision is affirmed

The Administrative Procedures Act (APA) provides an inmate with an appellate review to a limited range of administrative decisions issued by the Department of Corrections (DOC). Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000). An APA review is confined to those cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status and to those cases in which DOC has taken an inmate's created liberty interest as punishment in a major disciplinary hearing. See McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). Here, jurisdiction is invoked since this case arises from a major disciplinary hearing in which Kinard was punished by the loss of good time credits, a created liberty interest.

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.

In the instant matter, Kinard argues that the DOC decision is made upon unlawful procedure; clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; and that the decision is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Kinard argues the hearing was carried out under unlawful procedures 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 Kinard argues that Captain Brightharp, who was not present at the hearing, was Kinard's accuser. Kinard asserts Captain Brightharp was the accuser since written comments of Captain Brightharp were entered in the record with such comments stating that Kinard had confessed to Brightharp that Kinard had struck a fellow inmate. Kinard argues that he was denied the right to call witnesses since he asked for his accuser to be present, but since Captain Brightharp was not present, the witness he requested was not provided.

1. Inmate's Right to Call Witnesses & Present Evidence.

Due process requires that an inmate in a disciplinary proceeding be allowed to call witnesses and present documentary evidence in defense if such will not be unduly hazardous to institutional safety or correctional goals. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). However, the holding of Wolff , 418 U.S. at 566-68, 94 S.Ct. 2963 does not extend so far as to require that the inmate be allowed to confront and cross-examine witnesses furnishing evidence against the inmate, but instead such decisions are left to the "sound discretion of the officials of state prisons." Wolff, 418 U.S. at 569; see also Baxter v. Palmigiano, 425 U.S. 308, 321-22 (1976).

Thus, since the evidence to be supplied by Captain Brightharp was offered against Kinard, Captain Brightharp was not a witness to be called in Kinard's defense. Rather, allowing Kinard to present Captain Brightharp as a witness would be for the purpose of confrontation and tantamount to cross-examination. DOC could have allowed such, but not doing so is within the discretion of DOC. In this case, DOC did not consider Captain Brightharp as the accuser, had no specific request from Kinard to call Captain Brightharp as a witness, and did present the accuser as the DOC officer who wrote up the incident. Therefore, under these circumstances DOC properly exercised discretion in not presenting Captain Brightharp as a witness at the hearing.

2. DOC Not Following Its Own Rules

Kinard also argues that DOC failed to follow its own rules governing the grievance process. Here, the allegation is that DOC failed to comply with OP-22.14 (4)(B)(5) by not presenting the accuser at the hearing even though Kinard had requested his accuser's presence.

Here, the accuser is identified on the SCDC 19-69 as Officer Frank Gray. Officer Gray filed the Incident Report detailing the events he observed, and based upon these comments, Officer Gray appeared at the hearing as the accuser. Further, no assertion was made at the hearing that Officer Gray was not the accuser. Thus, I find that DOC did not fail to follow its own policies since the accuser was present at the hearing as requested.

Kinard argues the DOC decision must be reversed since the decision is not supported by the evidence. In examining a DOC determination for the presence of evidentiary support, an ALJ must review the matter in an appellate capacity. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742. In that capacity, an ALJ reviewing factual disputes between DOC and the inmate "will not substitute [the ALJ's] judgment for that of the [DOC Hearing Officer] as to the weight of the evidence on questions of fact." S.C.Code Ann. § 1-23-380(A)(6) (Supp. 2000).

Thus, the ALJ will not re-weigh the evidence in an attempt to come to an independent conclusion on the factual dispute. Rather, the ALJ will rely upon the Hearing Officers factual determinations unless such those determinations are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. S.C. Code Ann. § 1-23- 380(A)(6)(e) (Supp. 2000).

In determining if substantial evidence supports the Hearing Officers factual determinations, the ALJ does not look for "a mere scintilla of evidence nor evidence viewed blindly from one side, but [rather looks for ] evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached." Palmetto Alliance, Inc. v. South Carolina Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984). Accordingly, if such evidence is present, substantial evidence is present and the factual determinations will not be overturned.

Here, substantial evidence supports the factual determinations made below. Kinard was seen in the area where the altercation occurred, Kinard was being chased by the inmate who had been struck, and Kinard had confessed to a DOC officer that Kinard had struck the inmate. These determinations would allow a reasonable minds to reach the conclusion that Kinard committed the act with which he was charged. Thus, substantial evidence supports the DOC decision.

Kinard argues the DOC decision resulted from arbitrariness amounting to an abuse of discretion. An agency's decision "is arbitrary if it is without a rational basis, is based alone on one's will and not upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate determining principles, or is governed by no fixed rules or standards." See Deese v. South Carolina State Bd. of Dentistry, 286 S.C. 182, 184-5, 332 S.E.2d 539, 541 (Ct.App.1985).

Here, the principal allegation is that DOC was arbitrary in its decision not to have Captain Brightharp present as the accuser. Such a decision was not arbitrary or an abuse of discretion. DOC had before it a form SCDC 19-69 which identified the accuser as Officer Frank Gray. Officer Gray filed the Incident Report detailing the events he observed, and based upon these comments, Officer Gray appeared at the hearing as the accuser. Moreover, no assertion was made at the hearing that Officer Gray was not the accuser. Thus, DOC had a rational basis for its decision.

The guilty verdict entered by DOC against Wilson Kinard # 186834 is AFFIRMED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: December 11, 2001

Columbia, South Carolina