ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Michael Hargrove, an
inmate incarcerated with the Department of Corrections ("Department"). On February 8, 2001, Hargrove was convicted of
violating SCDC Disciplinary Code 1.06, Possession of a Weapon. As a result of his conviction, Hargrove lost 60 days of
"good-time" credit. Hargrove filed a grievance with the Department and received the Department's final decision on
March 29, 2001. On April 10, 2001, Hargrove filed this appeal.
II. BACKGROUND
On January 30, 2001, Associate Warden MacTaggert entered the cafeteria stock room where Hargrove was working.
MacTaggert spotted Inmate Clems, who had been terminated from his job in the stock room two days earlier, squatting
behind a desk in the stock room. MacTaggert then escorted the inmate to lockup. Later, MacTaggert returned to the stock
room and began searching the area where Clems had been. MacTaggert found no contraband. MacTaggert then searched
Hargrove's work area, where he found a sock, a broken lock, and a portion of a razor blade, all in different areas of the
desk. The desk where Hargrove worked was used by several inmates during the course of the day. In response to
MacTaggert's inquiries, Hargrove admitted that the sock was his and that he used it to clean his boots, which often became
bloody as he worked in the freezer. The stock room supervisor, Mr. Olson, was present in the stock room when
MacTaggert found the items. After declaring that a lock inside a sock was a weapon, MacTaggert took Hargrove to lockup.
After the incident, MacTaggert completed an Incident Report charging Hargrove with violating SCDC Code 1.06,
Possession of a Weapon. Hargrove received written notice of the charges on February 2, 2001. The hearing was held on
February 8, 2001, before a Disciplinary Hearing Officer ("DHO"), whom Hargrove alleges works in the prison under
MacTaggert, who is the warden in charge of security. (1) MacTaggert, Hargrove's accuser, was present at the hearing and
testified that his Report was accurate and that Hargrove claimed ownership of the sock, the broken lock, and the razor
blade. In response to a question posed by Hargrove's counsel substitute, MacTaggert testified that he did not believe that
the lock and razor could have been left on the desk by someone other than Hargrove, even though MacTaggert himself had
removed an"unauthorized" inmate from the stock room himself. In addition, Mr. Olson testified that they had problems
controlling access to the store room and that any number of inmates could have left the items on the desk. Mr. Olson also
testified that many inmates "had it in" for Hargrove because Hargrove did not believe in stealing and worked very hard to
prevent food losses. Finally, Hargrove himself testified, stating that he denied ownership of the lock and the razor blade to
MacTaggert . Hargrove also admitted that he was very unpopular with both the thieving inmates and some guards because
of his intolerance to stealing.
At the conclusion of the hearing, the DHO informed Hargrove that she believed that he was in possession of contraband
items that could very quickly be fashioned into a weapon. Consequently, the DHO found Hargrove guilty of the charge
and sanctioned him with the loss of 60 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
MacTaggert's report. Finally, the Hearing Record reflects that Hargrove lost 60 days of good-time credit as a result of the
conviction.
Hargrove filed a grievance on February 19, 2001, appealing his conviction. On March 20, 2001, Associate Warden
MacTaggert denied Hargrove's grievance, finding that the DHO considered all credible evidence and testimony, that there
were no procedural errors, and that the sanctions were appropriate. That same day, Hargrove appealed MacTaggert's
decision, in part based on MacTaggert's very obvious role as both judge and accuser. The Department denied his
grievance, finding that there is no reason to warrant a reversal of the DHO's decision. In addition, the Department found
that the evidence presented was sufficient to support Hargrove's 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, Hargrove alleges that he lost 60 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 Hargrove'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.
The Department failed to provide Hargrove with all process he was due before taking away 60 days of good time. First, the
Department assigned an employee of the accusing official as DHO. It is not reasonable to expect an employee to remain
impartial when determining the credibility of her boss. Further, MacTaggert himself denied Hargrove's grievance on the
basis that "the DHO considered all credible evidence and testimony." MacTaggert then stated that Hargrove was " found
guilty based on the accuser's written report, verbal testimony, and the physical evidences (sic)." If it is unreasonable to
expect the accusing official's employee to remain impartial, it is certainly unreasonable to expect the accusing official
himself to evaluate his own actions objectively. In its Brief, the Department argues that MacTaggert's denial of
Hargrove's Step 1 grievance is inconsequential. According to the Department, Hargrove's due process rights were not
impacted by MacTaggert's denial of his Step 1 grievance because he was found guilty by a hearing officer and the entire
disciplinary proceeding was reviewed by Bernard McKie, Division Director. A very partial hearing officer's finding of
guilt and a Division Director's generic denial of a Step 2 grievance cannot cure the obvious violation of due process that
MacTaggert's involvement effected.
Even if the Department had not violated Hargrove's procedural rights, I find that the Department's determination of guilt
in this case is clearly erroneous in light of the substantial evidence in the Record. SCDC Disciplinary Code 1.06,
Possession of a Weapon, states, "[t]he actual or constructive possession by an inmate of any instrument intended to be used
to inflict physical injury on another person." Even if MacTaggert's testimony that Hargrove claimed possession of all
three items is to be believed, there is no evidence that any of these items constitute a weapon as described in SCDC
Disciplinary Code 1.06. At the conclusion of the hearing, the DHO admitted that none of these items by themselves make
a weapon. Nevertheless, the DHO found Hargrove guilty of possessing a weapon because the items in his possession
"could very quickly be fashioned into a weapon." Items that can "very quickly be fashioned into a weapon" do not a
weapon make. Therefore, because there is no substantial evidence that Hargrove had actual or constructive possession of
any instrument intended to be used to inflict physical injury on another person, the Department's Final Decision is
REVERSED.
All other issues raised by Appellant during the Grievance process and Appeal are mooted by this Order. IV. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department is REVERSED;
IT IS FURTHER ORDERED that the Department credit Hargrove with the 60 days of "good-time" credits lost as a
result of his conviction;
IT IS FURTHER ORDERED that the Department credit Hargrove with any good-time credit he failed to earn as a result
of his conviction.
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
January 28, 2002
Columbia, South Carolina
1. The Department has not denied this allegation. |