ORDERS:
ORDER
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of O'Dinga Mack, an
inmate incarcerated with the Department of Corrections ("Department"). On October 24, 2000, Mack was convicted of
violating SCDC Disciplinary Code 1.10, Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs after he
refused to submit to a urinalysis and drug test. As a result of his conviction, Mack lost sixty days of "good-time" credit.
Mack filed a grievance with the Department and received the Department's final decision on February 23, 2001. On March
15, 2001, Mack filed this appeal.
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, Mack lost 60 days of good time after he was convicted of prison disciplinary infractions. As such, I find that
this tribunal has jurisdiction to hear Mack's appeal. However, because the Department failed to set forth adequate findings
of fact and conclusions of law with respect to Mack's conviction, it is unnecessary to reach the merits of Mack's appeal.
In the hearing, throughout the grievance process, and in his Brief, Mack raises the following concerns: (1) he was given no
reason why he was being tested and (2) he was treated differently than two other inmates who were taken to be tested at the
same time as Mack who likewise were not tested. (1)
The Department failed to address either of these specific issues in its Brief. (2) Further, although these issues were raised
during the hearing and the grievance process, the Department failed to provide any findings or conclusions as to either of
them. Neither the incident report, the Disciplinary Hearing Officer's ("DHO"'s) decision rendered at the conclusion of
Mack's hearing and in the Disciplinary Report and Hearing Record, nor the Department's decisions regarding Mack's Step
1 and Step 2 grievances, address these issues.
I find that the Department's responses throughout the process as to these two issues is wholly lacking. Nor does the
Department address these issues in its Brief. This tribunal has found nothing in the Record to indicate which category of
testing (e.g., random) was used to select Mack for testing. Further, the Department failed to address Mack's allegation that
two other inmates selected to be tested at the same time as Mack who also were not tested, were not charged. This tribunal
has no obligation to sift through the evidence itself because the Department failed to provide a Hearing Record or Brief that
adequately sets forth the factual support for its position. (3) Therefore, since the Department has had adequate opportunity
to respond to Mack's serious allegations but has repeatedly failed to do so, this matter is reversed. (4)
All other issues which may have been raised by Mack during the hearing or the grievance process not addressed in his Brief
are deemed abandoned.
IT IS THEREFORE ORDERED that the Final Decision of the Department is REVERSED;
IT IS FURTHER ORDERED that the Department credit Mack with the sixty days of "good-time" credits lost as a result
of his conviction;
IT IS FURTHER ORDERED that the Department credit Mack with any good-time credit he failed to earn as a result of
his conviction; and
IT IS FURTHER ORDERED that all issues raised by Mack during the grievance process not argued in his Brief are
deemed abandoned.
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
January 8, 2002
Columbia, South Carolina
1. It is unclear from the Record whether the other inmates refused to be tested, as Mack did, or whether they were not tested
for some other reason.
2. The Department filed its Brief prior to the filing of Mack's Brief, making it difficult, if not impossible, for it to
adequately address the specific issues raised by him.
3. See Porter v. Public Service Commission, 333 S.C. 12, 507 S.E.2d 328 (1998) (the court will not, sua sponte, search the
record for substantial evidence supporting an agency decision when that agency's order inadequately sets forth the agency's
findings of fact and reasoning.)
4. Further, a urinalysis is a search protected by the Fourth Amendment and therefore must be conducted in a reasonable
manner. See Lucero v. Gunter, 17 F.3d 1347 (10th Cir. 1994). A determination of whether a search of an inmate is
reasonable must consist of a balancing of "the significant and legitimate security interests of the institution against the
privacy interests" of the prisoner. Id. at 1349-50, citing Bell v. Wolfish, 441 U.S. 520, 560 (1979). Because prison officials
have a "significant and legitimate" interest in preventing unauthorized drug use among prisoners, random urine collection
and testing of such prisoners is reasonable and does not violate the Fourth Amendment. 17 F.3d at 1350. However, when
there is no evidence that a prisoner was chosen for drug testing at random or by some method otherwise permissible under
the Fourth Amendment, the testing is suspect. Id. Therefore, to find an inmate guilty of a drug offense based on his refusal
to submit to a drug test where no reason whatsoever is given for that drug test may violate the inmate's due process rights. |
