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Administrative Law Court
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SC Administrative Law Court Decisions

Robert Lee Foster vs. SCDOC

South Carolina Department of Corrections

Robert Lee Foster

South Carolina Department of Corrections





This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Robert Lee Foster, an inmate incarcerated with the Department of Corrections ("Department") off and on since February 5, 1993. In January 1999, Foster was paroled. After violating the terms of his parole, Foster was returned to the custody of the Department on April 18, 2000, 34 days after a warrant had been issued for his arrest. Foster filed a grievance challenging the calculation of his sentence on September 11, 2000. On January 11, 2001, Foster received the Department's Final Decision denying his grievance. On January 30, 2001, Foster filed this appeal. For the reasons set forth below, the Department's Final Decision is affirmed.


In 1992, after being convicted of Distribution of Crack Cocaine, Foster was sentenced to twenty-years, which equals 7200 days (360 times 20 years). After earning a combined 4477.142 days of service time, good-time credit, and earned work credit, Foster was paroled on January 13, 1999, leaving 2722.858 days that he could serve while on parole. During the period in which he was out on parole, Foster would earn sentence credit at a rate of one day of credit for one day of service. However, on March 13, 2000, a warrant was issued for Foster's arrest for parole violations. Foster was returned to the custody of the Department on April 18, 2000. During the period between the issuance of the warrant and his arrest (36 days), Foster earned no service credit. Upon his return to Department custody, Foster resumed earning service credit and good time. On June 29, 2000, Foster was assigned as a baker and began earning work credits. On September 11, 2000, Foster filed a grievance, alleging that the implementation of Michael Moore's (former Director of the Department) new program directive interfered with his ability to earn sentence credits at the rate he did prior to his parole. In addition, Foster alleges that he should have been "grandfathered." On October 17, 2000, the warden responded, stating that his complaint had been reviewed and that he was receiving proper credits toward his sentence. Foster appealed, and received the Department's Final Decision denying his grievance on January 11, 2001. This appeal followed. In his Notice of Appeal, Foster alleges he was told that he would only have to serve 51% of his sentence. Foster also alleges that the change in the Classification system, which resulted in a reduction in the rate he earns sentence-related credits, violates his right to due process.


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, Foster alleges that he is entitled to have his rates of earning sentence-related credits restored to his pre-parole rates. As such, I find that this tribunal has jurisdiction to hear Foster's appeal.

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. In a miscalculated sentence case, the grievance procedure established by the Department, in which an inmate has the opportunity to raise the matter to prison officials and in which a reviewable record is created, satisfies the requirements of due process. Al-Shabazz, 338 S.C. at 375, 527 S.E.2d at 753. The Fourteenth Amendment's guarantee of procedural due process applies only to the deprivation of a life, liberty, or property interest. Board of Regents of State College v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972). The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (1974); Al-Shabazz v. State, 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. Al-Shabazz v. State, 338 S.C. at 370, 527 S.E.2d at 750. However, inmates have no protected interest in the ability to earn work or education credits. Unlike "good time" credits, which an inmate is entitled to pursuant to state law, earned work credits and education credits are awarded at the discretion of the Department Director. See S.C. Code Ann. 24-13-230(A)("[t]he Director of the Department of Corrections may allow any prisoner in the custody of the department...who is assigned to a productive duty assignment...a reduction from term of his sentence of zero to one day for every two days he is employed...")(emphasis added); 461 U.S. 238, 249 (1983)(unless state law places "substantive limitations" on official discretion, no liberty interest is created). Therefore, because the loss of earned work credits would not "impose an atypical and significant hardship" on the inmate, no due process is required before the Department places restrictions on or otherwise alters an inmate's ability to earn such credits. See Sandin v. Conner, 515 U.S. 472 (1995).

I find that the Department afforded Foster all process that was due in these circumstances. Foster raised the issue of his sentence calculation by filing a grievance, in which he stated his belief that he should only have to serve 51% of his sentence and that his rate of earning sentence-related credits should be grandfathered. After verifying Foster's sentence calculation, the Warden responded by explaining that two different Department officials had already addressed Foster's concerns. Foster was then permitted to appeal the Warden's decision to the Department level. In its denial of his grievance, the Department informed Foster that he could appeal the Department's final decision to the Division. As such, I find that the Department complied with the minimal due process required in this case.

Moreover, I find that there is substantial evidence that the Department correctly calculated Foster's sentence. State law grants the Director the power to deduct days from the term of a sentence of zero to one day for every two days an inmate is employed or enrolled at his discretion. Foster has not alleged that either state statute or the Director allows "grandfathering," nor is there any evidence in the Record to support such a claim. Therefore, Foster's appeal must be denied.


IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED;

IT IS FURTHER ORDERED that Foster's appeal is DISMISSED.





December 11, 2001

Columbia, South Carolina

Brown Bldg.






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