SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("ALJD" or "Division") pursuant to the appeal of James McNeil, an inmate incarcerated with the Department of Corrections ("DOC" or "Department"). McNeil was convicted of violating SCDC Disciplinary Code 2.13 Refusing or Failing to Obey Orders. As a result of his conviction, McNeil lost thirty (30) days of "good-time" credit. McNeil filed a grievance with the Department and received the Department's final decision on January 23, 2001. On February 7, 2001 McNeil filed this appeal.

On November 14, 2000, Sergeant Buncumb, a DOC employee working in Lieber Correction Institution, ordered the Appellant to stop kicking the door to his cell and to let Officer Johnson remove his handcuffs. The Appellant refused to obey Sergeant Buncumb's orders. Afterwards, Sergeant Buncumb gave several direct orders for the Appellant to stop kicking the door to his cell and to let Officer Johnson remove his handcuffs. He continued to kick the door. The Appellant did not stop kicking the door until after Sergeant Buncumb sprayed him with "Freeze + P CS/OC." After the incident, Sergeant Buncumb completed an Incident Report and submitted it to his supervisor. The Appellant was charged with violating SCDC Disciplinary Code 2.13 Refusing or Failing to Obey Orders. He received written notice of the charges on November 18, 2000.

On November 28, 2000, the Appellant was brought before a DOC Disciplinary Hearing Officer (DHO) to face the Refusing or Failing to Obey Orders charge 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 Buncumb was not present at the hearing. During the hearing, the DHO read a narrative of Sergeant Buncumb's Incident Report into the Record and received testimony from several witnesses as evidence. At the conclusion of the hearing, the DHO found the Appellant was guilty of Refusing or Failing to Obey Orders and sanctioned him with the loss of thirty (30) 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 November 30, 2000, appealing his conviction of violating SCDC 2.13. After reviewing his allegation, the Warden denied the Appellant's grievance on December 12, 2001, finding that there were no procedural errors in the offense charged or his hearing. He appealed the Warden's decision on December 17, 2001. The Department denied his grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violation that the Appellant committed. This appeal followed.

In his Appeal Brief, the Appellant contends that:

1. His hearing was not held before an impartial hearing officer;

2. He was not provided with a counsel substitute twenty-four (24) hours prior to his hearing; and

3. He was subjected to a major hearing for a minor infraction

The Appellant also alleges that his case should have been heard by the adjustment committee rather that a disciplinary hearing officer. These arguments were not raised below. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. See Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 458 S.E.2d 542 (1995) (In reviewing a final decision of an administrative agency, the Administrative Law Judge "has a limited scope of review, and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency."). Therefore, these arguments will not be considered. ⁽¹⁾

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 thirty (30) 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. Id. 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. ⁽²⁾ 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. ⁽³⁾ 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 2.13 Refusing or Failing to Obey Orders. Code 2.13 is: "Noncompliance with a legitimate order from an SCDC employee. . . ." The Record clearly supports the facts recited in the "Background" portion of this Order. Those facts expressly establish that the Appellant failed to comply with a legitimate order of an SCDC officer.

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.

_________________________________

Ralph K. Anderson, III

Administrative Law Judge

December 18, 2002

Columbia, South Carolina

1. Morever, I find that he failed to establish that this case was improperly before a disciplinary hearing officer.

2. The Appellant contends that his hearing was not held before an impartial Hearing Officer. However, I find that he failed to establish that his hearing officer was impartial.

3. The Appellant contends that he was entitled to be provided with a counsel substitute twenty-four (24) hours prior to the hearing. However, in Wolff, supra., the U.S. Supreme Court did not require that an inmate be provided a counsel substitute twenty-four (24) hours prior to the hearing. The Court held that: "Where an illiterate inmate is involved, however, or whether the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff." Wolff, at 94 S.Ct. 2982. Here, the Appellant did not allege or establish that he was either illiterate or that this case was of sufficient complexity to necessitate assistance in presenting his case. Furthermore, the Appellant has filed and litigated numerous cases involving disciplinary matters. Therefore, he failed to establish that he was entitled to a counsel substitute twenty-four (24) hours prior to his hearing.