ORDERS:
ORDER
I. STATEMENT OF CASE
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 February 15, 2001, Mack was convicted of
violating SCDC Disciplinary Code 1.10, Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs. As a result of
his conviction, Mack lost 120 days of "good-time" credit. Mack filed a grievance with the Department and received the
Department's final decision on April 10, 2001. On April 25, 2001, Mack filed this appeal.
II. BACKGROUND
On February 9,2001 while searching Richland Unit, Room 219, Sergeant Mackey and Corporal Rogers found a bag of what
appeared to be marijuana stuck to the inside of the cell door. Both inmates from the cell, Rasheen Weston and O' Dinga
Mack had been removed from the area and taken to the holding cell because of disruptive behavior. The package which
was found was given to Sergeant Hodges for analysis. The substance was weighed and tested using a Sirchie #8 and was
found to be positive for marijuana with a weight of 1.71 grams. The charging officer did not interview either inmate to
determine ownership of the marijuana. Nevertheless, both inmates were charged with SCDC Disciplinary Code 1.10, Use
or Possession of Narcotics, Marijuana, or Unauthorized Drugs.
After the incident, Sergeant Hodges completed an Incident Report and submitted it to his supervisor. Mack was charged
with violating SCDC Code 1.10, Use or Possession of Narcotics, Marijuana or Unauthorized Drugs. Mack received written
notice of the charges on February 12, 2001. The hearing was held on February 15, 2001, before a Disciplinary Hearing
Officer ("DHO"). Mack's accuser, Sergeant Hodges, was present at the hearing and testified that his Report was accurate.
In response to a question posed by the DHO, Sergeant Hodges testified that he did not know to whom the marijuana
belonged because neither inmate was in the cell when the marijuana was found. Similarly, when cross-examined by
Mack's counsel substitute, Sergeant Hodges testified that he did not question either inmate about the marijuana. In
addition, counsel substitute informed the DHO that Mack's cellmate, Inmate Weston, claimed sole ownership of the
marijuana during an interview conducted by counsel substitute prior to the hearing. At the conclusion of the hearing, the
DHO informed Mack that he had been found guilty of the charges and would be sanctioned with the loss of 120 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 Sergeant Hodges' report indicating that Sergeant Mackey and
Corporal Rogers found a package in Room 219 while both inmates of the cell had been removed because of behavior. The
package tested positive for marijuana. Finally, the Hearing Record reflects that Mack lost 120 days of good-time credit as
a result of the conviction.
Mack filed a grievance on February 16, 2001, appealing his conviction. On February 26, 2001, the Warden denied his
grievance, finding substantial evidence of Mack's guilt. On March 5, 2001, Mack appealed the warden's decision. The
Department denied his grievance, finding that the evidence presented was sufficient to support his 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, Mack alleges that he lost 120 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 Mack'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.
Based on the Record, it appears that Mack was afforded all process he was due. However, I find that the Department's
determination of guilt in this case is clearly erroneous in light of the substantial evidence in the Record. Accordingly, the
Department's final decision is reversed.
Possession of contraband may be established by evidence of the power and intent to control its disposition or use. See State
v. Ellis, 263 S.C. 12, 22, 207 S.E.2d 408, 413 (1974). Proof of possession requires more than the mere presence of the
contraband. See State v. Tabory, 260 S.C. 355, 364, 196 S.E.2d 111, 113 (1973). Instead, actual knowledge of the
presence of the contraband is required. State v. Brown, 267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976). Although actual
knowledge may be inferred from the presence of contraband, the burden of proof does not shift to the defendant to disprove
actual knowledge. See State v. Adams, 291 S.C. 132, 135, 352 S.E.2d 483, 486 (1987).
In this case, there is no substantial evidence in the Record that Mack was in possession of the marijuana found in the door
of his cell. Although the marijuana was discovered in the cell Mack shared with Inmate Weston, there is no other evidence
that the marijuana was Mack's, or that he knowingly was in possession of the marijuana. Instead, there is unrebutted
evidence that Mack's cellmate claimed ownership of the marijuana in an interview conducted by an employee of the
Department. The only evidence linking Mack to the marijuana is the officer's Report that marijuana was found in the door
of Room 219, to which Mack and Weston were assigned. The officer admitted that he did not question either inmate about
the marijuana. In addition, the officer admitted that he could not determine who owned the marijuana. Therefore,
because there is no substantial evidence that Mack possessed the requisite mens rea to commit the offense of Use or
Possession of Narcotics, Marijuana, or Unauthorized Drugs, 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 Mack with the 120 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 SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 29, 2001
Columbia, South Carolina |
