ORDERS:
ORDER OF DISMISSAL
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Ronald Williams, an
inmate incarcerated with the Department of Corrections ("Department"). On August 10, 2000, Williams was convicted of
SCDC Disciplinary Code 1.10, Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs. As a result of his
conviction, Williams, among other things, lost 240 days of "good-time" credit. Williams filed a grievance with the
Department and received the Department's final decision on February 16, 2001. On March 2, 2001, Williams filed this
appeal.
II. BACKGROUND
On August 3, 2000, at Operations Building 4 at Goodman Correctional Institution, Sergeant Emasie gave Williams a test
stick for THC. The test result was positive for THC. Sergeant Emasie then gave Williams a Rapid One THC test. The test
result was again positive for THC.
After the incident, Sargent Emasie completed an Incident Report and submitted it to his supervisor. Williams was charged
with violating SCDC Code 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Drugs. Williams received
written notice of the charges on August 8, 2000. The hearing was held on August 10, 2000, before a Disciplinary Hearing
Officer ("DHO"). Williams' accuser was present at the hearing, testified as to the procedure used to administer the test and
as to the results, and was subject to being cross-examined. At the conclusion of the hearing, the DHO informed Williams
that he had been found guilty of the charges and would be sanctioned with the loss of 240 days of good time credit. After
the hearing, the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), which documented
the DHO's findings based on the positive drug test for THC. Finally, the Hearing Record reflects that Williams lost 240
days of good-time credit as a result of the conviction.
Williams filed a grievance on August 23, 2000, appealing his conviction of violating SCDC 1.10. On January 17, 2001,
the Warden denied his grievance, finding credible evidence of Williams's guilt. On January 27, 2001, Williams appealed
the warden's decision, alleging the tests were read incorrectly and the lost of 240 days good time is excessive punishment.
The Department denied his grievance, finding that the evidence presented was sufficient to support his conviction and that
the sanction imposed was appropriate. This appeal followed. III. ANALYSIS
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, Williams alleges that he lost 240 days of good time after he was wrongfully convicted of a prison disciplinary
infraction. As such, I find that this tribunal has jurisdiction to hear Williams's appeal.
The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz,
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. Id. While due process is "flexible and calls for
such procedural protections as the particular situation demands," Stono River Envtl. Protection Ass'n v. S.C. Dept. Of
Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 30, 341 (1991), certain elements must be satisfied in order for
procedural due process requirements to be met, 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).
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.
I find that Williams was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Williams was
given written notice of the charges in excess of 24 hours prior to his hearing before an impartial hearing officer. In
addition, although not constitutionally required, Williams was afforded counsel substitute to assist him in his defense.
Further, Williams was given the opportunity to offer evidence and witnesses. Williams' accuser was present at the
hearing, testified and was subject to cross-examination. The DHO prepared a written report detailing the evidence he relied
upon and the penalty assessed in finding Williams guilty of the disciplinary infraction. Finally, Williams was permitted to
appeal the DHO's decision through the inmate grievance process.
Moreover, I find that there is substantial evidence to support William's conviction of SCDC 1.10, Use or Possession of
Narcotics, Marijuana, or Unauthorized Drugs. Sergeant Emasie's Incident Report stated that he gave Williams a test stick
for THC and that the result was positive for THC. He then gave Williams a Rapid one THC test and that result was again
positive for THC. Sargent Emasie testified at the hearing as to the procedure use in giving the test and that the results were
positive for THC.
In his brief, Williams raises as an issue the alleged failure of Sergeant Emasie to follow proper
procedure by administering the test by himself on a supposed tip and deposing of the urine sample. Williams alleges this
failure to follow procedure should be sufficient to warrant a reversal. However, a review of the transcript does not indicate
that Williams raised this particular violation of procedures during the course of the hearing. An inmate cannot sit silently
during a hearing, raising no objection as to an issue, and then raise the issue for the first time on appeal.
Williams also alleges that SCDC Policy OP-22.14 requires that a reason be indicated for placement in pre-hearing
detention. However, Williams must accept that every failure of the Department to follow its own policies and procedures,
whether deliberate or inadvertent, is not a violation of due process. Only if the Department's failure adversely affects an
inmate's life, liberty, or property right is an inmate's right of due process implicated. Williams failed to offer any
evidence during the hearing that the Department's alleged failure to follow SCDC Policy OP-22.14 adversely affected his
liberty interests.
Finally, Williams alleged in his Grievance and Notice of Appeal that the penalty imposed by the DHO is excessive and
unconstitutional because, among other reasons, it exceeds the penalty for the same offense which would be imposed by a
court of law. However, Williams failed to argue this issue in his brief and therefore the issue is deemed abandoned. Even if
not abandoned, the Department has the power to "prescribe reasonable rules and regulations governing the . . . discipline
of prisoners." S.C. Code Ann. § 24-1-140 (1999). Certainly that power would encompass the prohibition of the possession
and use of illicit drugs as found in Policy GA-03.03, Inmate Drug Testing/Screening Program, which provides:
"inmates convicted of [use or possession of narcotics, marijuana, or unauthorized drugs] will be subject to the following
sanctions:
1. Loss of appropriate amount of good time[.]"
Department Policy/Procedure GA-03.03 (March 3, 2000).
Given the Department's duty to provide "an orderly and reasonably safe prison life" to all inmates and staff, see Wolff, 418
U.S. at 561-62, I cannot find that the loss of 240 days of good time is an inappropriate penalty in this case. Therefore, I
affirm the Department's final decision regarding the penalty assessed.
All other issues raised by Appellant during the Grievance process and Appeal not argued in Appellant's Brief are deemed abandoned.
Accordingly, the Department's final decision is affirmed.
V. ORDER
IT IS THEREFORE ORDERED that the appeal of Williams is DISMISSED and the Final Decision of the Department is
AFFIRMED;
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 28, 2001
Columbia, South Carolina |
