SC Administrative Law Court Decisions

Willie Bovain, #257929 (Bovain) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Bovain of inciting or creating a disturbance for which he lost 160 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Bovain was punished by the loss of good time credits, a loss which impacts a created liberty interest. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000); McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). After a review of the record and the arguments, the DOC decision is AFFIRMED.

In this review, 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 this case, Bovain argues that the DOC decision is made upon unlawful procedure and the decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

Bovain argues the hearing was carried out under unlawful procedure 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 Bovain argues the persons hearing the matter were not impartial.

The use of prison officials to hold inmate hearings does not present an inherent showing of a lack of an impartial hearing and such use of prison officials is not a violation of due process. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (no due process violation when prison officials serve as impartial decision-makers at disciplinary hearings). Rather, the presumption is that the officer will act in a neutral and impartial manner.

Certainly, an impartial hearing board is required. Wolff, 418 U.S. at 539, 572 n.20. However, proof of a due process violation requires specific acts of lack of neutrality such as the hearing officer being substantially involved with the investigation. See Merritt v. De Los Santos, 721 F.2d 598, 601 (7th Cir. 1983) (due process violated only if officer substantially involved with investigation of charges against inmate, but not violated if officer's involvement at hearing is only tangential); see, e.g., Diercks v. Durham, 959 F.2d 710, 713 (8th Cir. 1992) (due process violation when complainant was member of board hearing the case). But see, e.g., Pedraza v. Meyer, 919 F.2d 317, 320 (5th Cir. 1990) (no due process violation when disciplinary board official's only involvement in filing of complaint was receipt of incident report and intercepted letters); Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) (no due process violation when investigating officer signs disciplinary report as shift supervisor); Ivy v. Moore, 31 F.3d 634, 635 (8th Cir. 1994) (no due process violation when chairperson of hearing personally investigated defense because did not threaten impartial decision-making); Mitchell v. Maynard, 80 F.3d 1433, 1446 (10th Cir. 1996) (no due process violation because officer did not witness inmate's participation in riot, was not present during riot, and did not prepare offense report).

Here, no evidence establishes the hearing officer failed to act impartially. The decision was made after hearing all of the evidence and no showing is present that the hearing officer had a pre-designed decision. Rather, the decision reached was based on the evidence presented. Finally, no evidence shows the hearing officer was involved in the investigation of this matter. Thus, no showing of a lack of impartiality is present.

Bovain argues the DOC decision must be reversed since the decision is not supported by the evidence. I cannot agree.

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, once the facts are established by the Hearing Officer, 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 Officer's 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. The testimony was that Bovain refused to return to "D-pod" when directed to do so. Further, at the time, D-pod was locked down so that a directive to act promptly was more compelling than at other times. Rather than move quickly, Bovain and other inmates remained and talked. Bovain disputed the testimony. Thus, the hearing officer had conflicting testimony for which the degree of credibility had to be weighed. On the whole, the evidence given would allow reasonable minds to reach the conclusion that Bovain committed the act here in dispute. Thus, substantial evidence supports the DOC decision.

The guilty verdict entered by DOC against Willie Bovain, #257929 is AFFIRMED

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 23, 2002

Columbia, South Carolina