SC Administrative Law Court Decisions

Kelly Anderson, #211947 (Anderson) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Anderson of possession of a weapon, possession of contraband, and use of obscene, vulgar, or profane language or gestures for which he lost 120 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Anderson 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, Anderson argues that the DOC decision is made upon unlawful procedure and is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

Anderson argues the hearing was carried out under unlawful procedure since DOC has no authority to take his good time credit in the absence of promulgated regulation. In particular, Anderson explains that DOC has only policies but no regulations allowing the removal of good time credit for

possession of a weapon, possession of contraband, and use of obscene, vulgar, or profane language or gestures. I cannot agree.

The General Assembly expressed its intent not to rigidly bind inmate policy decisions by a duty to promulgate regulations. Rather DOC is exempt from the duty to promulgate regulations dealing with the supervision of inmates. See S.C. Code Ann. § 1-23-10(4) (Supp. 2000) (where DOC has no duty to issue inmate supervision "regulations" since such does not include "orders of the supervisory or administrative agency of a penal, . . . institution, in respect to the institutional supervision, custody, control, care, or treatment of inmates, [or] prisoners, . . . ."). Accordingly, DOC policy positions are proper means for an inmates basis for loss of good time credits.

Anderson 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 stated that Anderson had contraband consisting of a cooler. He had a weapon consisting of a box cutter razor blade. Further, Anderson admitted that he used profanity to an officer. In addition, Anderson entered a guilty pleas to each charge. These determinations would allow reasonable minds to reach the conclusion that Anderson committed the acts here in dispute. Thus, substantial evidence supports the DOC decision.

The guilty verdict entered by DOC against Kelly Anderson, #211947 is AFFIRMED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 23, 2002

Columbia, South Carolina