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SC Administrative Law Court Decisions

Antonio Green #257201 vs. SCDOC

South Carolina Department of Corrections

Antonio Green #257201

South Carolina Department of Corrections





This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). Appellant Antonio Green appeals the decision of the South Carolina Department of Corrections (DOC or Department) to revoke 120 days of his "good-time" credit as punishment for sexual misconduct in violation of DOC Disciplinary Code § 2.09. Having reviewed the record, applicable law, and the briefs filed by the parties in this matter, I conclude that the decision of the Department must be reversed.


On January 8, 2001, Captain J. Michael Ginn received an Investigative Memorandum from Debra G. Barnwell, an assistant division director in the DOC Office of Internal Affairs. This memorandum stated that an allegation had been received that Appellant had engaged in sexual intercourse with inmate Michelle Mathias at the Caldwell-Boylston House on the Governor's Mansion grounds. The memorandum went on to state that, while Appellant had denied the accusation, he had shown deception in his responses on a polygraph examination and that inmate Mathias had admitted to having sexual intercourse with Appellant at the Caldwell-Boylston House. As a result of this Investigative Memorandum, Appellant was charged with violating DOC Disciplinary Code § 2.09, Sexual Misconduct.

A hearing of this charge was held before a DOC Disciplinary Hearing Officer (DHO) on January 11, 2001. Captain Ginn testified at the hearing as the accusing officer; however, he conceded that his only knowledge of the incident came from the memorandum from Internal Affairs. (Hr'g Tr. at 3 ("we're simply going from his investigative report.")) The Investigative Memorandum was also introduced into evidence at the hearing. Other than Captain Ginn's testimony and the Investigative Memorandum, no other evidence of Appellant's misconduct was produced at the hearing. At the close of the hearing, the DHO found Appellant guilty of sexual misconduct and revoked 120 days of Appellant's good-time credit as punishment for the offense.

Appellant appealed his conviction to the Department and then to this tribunal. On appeal, Appellant raises several due process arguments in opposition to his conviction; most notably, he argues that there is insufficient evidence in the record to support his conviction.


In Al-Shabazz, the South Carolina Supreme Court held that inmates may seek review of final decisions of the Department in certain "non-collateral" or administrative matters (i.e., those matters in which an inmate does not challenge the validity of a conviction or sentence) by appealing those decisions to the ALJD pursuant to the South Carolina Administrative Procedures Act (APA). Al-Shabazz, 338 S.C. at 376, 527 S.E.2d at 754. In McNeil v. South Carolina Department of Corrections, a majority of the judges of the ALJD, sitting en banc, held that this tribunal's jurisdiction to hear inmate appeals under Al-Shabazz is limited to: (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. McNeil v. S.C. Dep't of Corrections, No. 00-ALJ-04-00336-AP, slip op. at 4-5 (S.C. Admin. Law Judge. Div. Sept. 5, 2001) (en banc). In the case at hand, Appellant contends that the Department improperly revoked 120 days of his good-time credit as punishment in a major disciplinary hearing; accordingly, this tribunal has jurisdiction over this matter.

When reviewing the Department's decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754. Consequently, this tribunal's review of inmate appeals is confined to the record presented, id., and its 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. at 369, 527 S.E.2d at 750; McNeil, No. 00-ALJ-04-00336-AP, at 5 ("[O]ur review is limited solely to the determination of whether the Department granted 'minimal due process' in reaching [its] decisions . . . ."). Further, recognizing that prison officials are in the best position to decide inmate disciplinary matters, this tribunal will adhere to the traditional "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). However, notwithstanding this deferential standard of review, this tribunal must conduct meaningful review of the Department's actions to ensure that inmate grievances are addressed in a fair, reasonable, and efficient manner. Al-Shabazz, 338 S.C. at 383, 527 S.E.2d at 757.

In the present case, Appellant contends that the Department's decision to revoke his good-time credit was made in violation of his due process rights. Because inmates have a protected liberty interest in their earned statutory good-time credits under the Fourteenth Amendment, they are entitled to "minimum procedures appropriate under the circumstances and required by the Due Process clause to insure that the state-created right is not arbitrarily abrogated." Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Thus, where, as here, an inmate faces the revocation of good-time credits as punishment in a disciplinary hearing, prison officials must provide that inmate with certain procedural safeguards. Al-Shabazz, 338 S.C. at 370, 527 S.E.2d at 750. (1) These procedural safeguards include:

(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.

Id. at 371, 527 S.E.2d at 751 (paraphrasing Wolff). Beyond these procedural requirements, the United States Supreme Court has held that the revocation of an inmate's good-time credits does not comport with Due Process unless "there [is] some evidence from which the conclusion of the [prison official] could be deduced." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). (2) Thus, if the Department affords the inmate a Wolff-type hearing and has at least some evidence in the record to support its decision, the Department's revocation of an inmate's good-time credits satisfies the requirements of due process.

In the disciplinary proceedings underlying the instant appeal, Appellant was not afforded all the process due him pursuant to Al-Shabazz. While the hearing conducted by the DHO did meet the basic procedural requirements of Wolff, the conclusions reached by the DHO are not supported by the evidence in the record, such that the "some evidence" standard of Hill has not been met. The sole evidence relied upon by the DHO in finding Appellant guilty of the charge against him was hearsay evidence of a polygraph test that Appellant reportedly failed and hearsay evidence of a statement made by a female inmate accusing Appellant of the offense. (Hr'g Tr. at 6.) While hearsay evidence is not necessarily inadmissable in prison disciplinary proceedings, the hearsay and polygraph evidence produced in this case-and solely relied upon by the DHO for Appellant's conviction-does not meet the "some evidence" standard required by due process. In Johnson v. State, 576 So. 2d 1289 (Ala. Crim. App. 1991), the Alabama Court of Criminal Appeals reached a similar conclusion when faced with a similar situation. In that case, an inmate had been convicted in a prison disciplinary proceeding of sexually assaulting another inmate based solely upon the hearsay testimony from the arresting officer regarding the accusations of the alleged victim and the results of a polygraph test the inmate purportedly failed. The court found the hearsay evidence to be insufficient to meet the "some evidence" standard and reversed the disciplinary conviction; it wrote:

"We have held that, while hearsay testimony may be admissible in prison disciplinary hearings, it may not be sufficient by itself in all cases to support a finding of guilt." Taking into consideration all the instant circumstances, we find that the hearsay testimony was not sufficient to meet the "some" evidence standard. The record offers nothing to indicate the reliability of the accusation, and we find no worthwhile corroboration in the polygraph test. In fact, to condone the use of the polygraph results, in this instance, would only compound the unfairness and unreliability of the officer's finding of guilt. Neither the hearsay accusation nor the results of the polygraph test have any probative value-separately or together.

Johnson, 576 So. 2d at 1290 (citations omitted). Such is the case here. The meager hearsay evidence presented against Appellant at the disciplinary hearing does not meet the "some evidence" standard set forth in Hill, and thus, the proceedings leading to his conviction did not satisfy the basic requirements of due process. Accordingly, Appellant's disciplinary conviction for sexual misconduct must be reversed.

IT IS THEREFORE ORDERED that Appellant's January 11, 2001 disciplinary conviction for violating DOC Disciplinary Code § 2.09, Sexual Misconduct, is REVERSED.

IT IS FURTHER ORDERED that the Department shall restore to Appellant all good-time credit taken from or lost by Appellant as a result of that conviction.



Administrative Law Judge

June 21, 2002

Columbia, South Carolina

1. However, this set of safeguards is necessarily a limited one. See Wolff, 418 U.S. at 560 ("[I]t is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society . . . to the very different situation presented by a disciplinary proceeding in a state prison.").

2. This review "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence," Hill, 472 U.S. at 455; rather, this standard only requires this tribunal to determine whether "there is any evidence in the record that could support the conclusion reached by the [prison official]." Id. at 455-56.

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