SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Nathan Pennington, an inmate incarcerated with the Department of Corrections ("Department"). Pennington was convicted of violating SCDC Disciplinary Code 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Prescription Drugs, after pleading not guilty to the charge. As a result of his conviction, Pennington lost 240 days of "good-time" credit. Pennington filed a grievance with the Department and received the Department's final decision on March 23, 2001. On April 17, 2001, Pennington filed this appeal.

On September 17, 1999, the Appellant was administered a random drug test at Lee Correction Institution by Sergeant Hodges. The Appellant tested positive for marijuana. The Officer then offered to perform a confirmation test for marijuana but the Appellant refused the test. After the incident, Sergeant Hodges completed an Incident Report and submitted it to his supervisor. The Appellant was charged with violating SCDC Code 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Drugs. The Appellant received written notice of the charges on September 20, 1999. The hearing was held on September 22, 1999, before a Disciplinary Hearing Officer ("DHO"), who read a narrative of Sergeant Hodges' Incident Report into the Record. During the hearing, the Appellant was represented by counsel substitute and pleaded not guilty to the charge. At the conclusion of the hearing, the DHO found the Appellant guilty of violating SCDC Code 1.10 and sanctioned him 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 record.

The Appellant filed a grievance on December 27, 2000 appealing his conviction of violating SCDC 1.10. On February 5, 2001, the Warden denied the Appellant's grievance. Afterwards, he appealed the warden's decision on February 11, 2001, arguing that the DHO sanctioned him with a loss of 240 days of "good time" credit under the mistaken belief that he was required to revoke 240 days based upon the offense the Appellant committed. The Department denied his grievance, stating that the evidence supported the conviction and that the sanction imposed was appropriate for the violation that the Appellant committed. This appeal followed.

In his Appeal Brief, the Appellant makes numerous allegations, including that: 1) he was not afforded a professional magistrate as a disciplinary hearing officer; 2) he was not told of his rights to present witnesses and documentary evidence; 3) he was not made aware of policy concerning a required 2^nd drug test; 4) he was not provided a right to discovery; 5) the drug test was not submitted as evidence; 6) Form 19-69 was not completed; and 7) other inmates received lesser sanctions than he did for the same offense. These arguments were not raised below. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. See Kiawah Resort Associates v. South Carolina Tax Com'n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995) (In reviewing a final decision of a final decision of an administrative agency, the Administrative Law Judge "has a limited scope of review, and cannot ordinarily consider issues that were not raised to and ruled on by the administrative agency."). Therefore, these arguments will not be specifically addressed. Nevertheless, in my discretion I have reviewed the Appellant's case and, particularly, his argument raised below that the DHO sanctioned him with a loss of 240 days of "good time" credit under the mistaken belief that he was required to revoke 240 days based upon the offense the Appellant committed. ⁽¹⁾

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). In McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001) the Division issued an En Banc Order interpreting the breadth of its jurisdiction pursuant to Al-Shabazz. That 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, the Appellant alleges that the Department excessively revoked 240 days of good time. Inmates have a protected liberty interest in their earned statutory good-time credits under the Fourteenth Amendment. Therefore, when, as here, the Department revokes an inmate's good-time credits as punishment in a "major disciplinary hearing" involving "more serious rule violations," prison officials must provide that inmate with "minimal due process." Al-Shabazz, 338 S.C. at 370, 527 S.E.2d at 750. Consequently, specific administrative procedures must be followed before depriving an inmate of statutorily granted earned credit, 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).

In Al-Shabazz, the Court held that inmates may seek review before this Division to ensure that the Department's revocation of good-time credits as punishment in a "major disciplinary hearing" involving "more serious rule violations" comport with "minimal due process." The ALJD 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. When reviewing the Department's decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Consequently, the review in these inmate grievance cases is limited to the record presented. Furthermore, an Administrative Law Judge may not substitute his judgment for that of an agency unless the agency's determination is arbitrary, 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) (1986 & Supp. 2001); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756. "'Substantial evidence' is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action." Lark v. Bi-Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). Further, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

Additionally, in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 445, 105 S. Ct. 2768 (1985), the U.S. Supreme Court held that "the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Moreover, in Al-Shabazz, the Court underscored that since prison officials are in the best position to decide inmate disciplinary matters, the Courts and therefore this Division adhere to a "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).

I find that the Appellant was afforded all process due him pursuant to Al-Shabazz. The Record indicates that the Appellant received written notice of the charges against him in excess of twenty-four hours prior to a hearing that was held before an impartial Disciplinary Hearing Officer. At the hearing, the Appellant was given the opportunity to offer evidence, call witnesses, and confront his accuser. In addition, although not constitutionally required, the Appellant was afforded the right to counsel substitute to assist him in his defense which he waived. After the DHO determined that the Appellant was guilty of the charged offense, he prepared a written report detailing the evidence he relied upon and the penalty assessed in finding the Appellant guilty of the disciplinary infraction. Finally, the Appellant was permitted to appeal the DHO's decision through the inmate grievance process.

Moreover, I find that there is substantial evidence to support the Appellant's conviction of violating SCDC Disciplinary Code § 1.10, The Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs, Including Prescription Drugs. A Code 1.10 violation, in part, is: "Any inmate testing positive for any unauthorized drug, refusing to submit to a drug test, or failing to produce a specimen within three (3) hours as specified in SCDC Policy/Procedure GA-30.03, "Inmate Drug Testing/Screening Program." The record clearly supports the facts recited in the "Background" portion of this Order. Those facts establish substantial evidence that both tests were properly administered and, thereafter, the Appellant tested positive for an "unauthorized drug." Furthermore, the Appellant knew that the Correction Officers were administering a drug test and the implications of the test and nevertheless refused a confirmation test. Additionally, the DHO specifically informed the Appellant that he was revoking 240 days of "good time" credit because he had previously been convicted of violating SCDC Disciplinary Code § 1.10.

IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and the Final Decision of the Department is AFFIRMED;

AND IT IS SO ORDERED.

_________________________________

Ralph K. Anderson, III

Administrative Law Judge

June 26, 2002

Columbia, South Carolina

1. In his Brief, the Appellant stated that he is not challenging his conviction but rather contends that the revocation of 240 days of "good time" credit was arbitrary and capricious.