SC Administrative Law Court Decisions

Ronnie Gamble, #215788 (Gamble) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Gamble of knowingly making a false statements for the purpose of harming another person for which he lost 120 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Gamble was punished by the loss of good time credits, a loss which impacts a created liberty interest. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 750 (2000); McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). After a review of the record and the arguments, the DOC decision is AFFIRMED.

In this review, the Administrative Law Judge (ALJ) acts "in an appellate capacity" and is "restricted to reviewing the decision below." Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 754 (2000). The review must apply the criteria of S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2000). See S.C. Code Ann. § 1-23-380(B) (Supp. 2000) (where an ALJ is directed to conduct a review "in the same manner prescribed in [§ 1-23-380](A)."). Section 1-23-380(A)(6) establishes the following:

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In this case, Gamble argues that the DOC decision is made upon unlawful procedure and clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

Gamble argues the hearing was carried out under unlawful procedure since DOC failed to provide procedural due process.

1. Procedural Due Process.

Due process for an inmate subjected to the loss of good time credits requires the following procedures:

(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. Wolff, 418 U.S. 563-72, 94 S.Ct. 2978-82, 41 L.Ed.2d at 954-60.

Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 751 (2000)

In the instant case Gamble argues that the charges against him were not timely served and the case not heard in a timely fashion so as to deny procedural due process.

Procedural due process requires advanced written notice so that the inmate may make adequate preparation for the hearing and to clarify what the charges are for which are hearing will be held. Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Failure to provide adequate notice of the charges calls into question whether due process has been provided Kim v. Hurston, 182 F.3d 113, 119 (2d Cir. 1999) (potential due process violation when ground for termination of liberty interest changes and the prisoner is not informed of new ground). Here Gamble had notice of the charges since he was served with notice on January 24, 2001. Such was at least 24 hours prior to the hearing which was held on February 1, 2001.

In addition, Gamble argues that due process was violated since DOC failed to follow its own internal policies. However, even if established, such a failure does not automatically require a reversal of or even a modification to the DOC order.

Well established law explains that an agency's failure to follow its own procedural rules and regulations does not violate an aggrieved party's constitutional due process rights since no such constitutional right exists. See Board of Curators v. Horowitz, 435 U.S. 78, 92, 98 S.Ct. 948, 956, 55 L.Ed.2d 124, 136 (1978); Hernandez v. Estelle, 788 F.2d 1154 (5th Cir.1986) ("The claim is that the mere failure of the TDC [Texas Department of Corrections] officials to follow their regulations was a constitutional violation. There is no such controlling constitutional principle."). Instead of a constitutional issue, deciding whether an agency is obligated "to follow its own rules and regulations is founded in principles of administrative law." Ogburn-Matthews v. Loblolly Partners (Ricefields Subdivision), 332 S.C. 551, 505 S.E.2d 598, 603 (Ct.App. 1998), overruled on other grounds by Brown v. South Carolina Dept. of Health and Environmental Control, ___ S.C. ___, 560 S.E.2d 410 (2002). In this case, DOC did not fail to follow its own rules.

Here, the specific allegation is that SCDC Policy OP-22.14 requires DOC to charge Gamble within four days of the time DOC learns of the violation and to hold the hearing on the charge within seven days (excluding weekends and holidays) of the inmate being charged. The policy allows DOC to request a seven day extension (excluding weekends and holidays) for holding the hearing.

Here, DOC learned of the violation on January 17, 2001. On that date DOC received a confidential Internal Affairs report holding that Gamble and two other inmates fabricated a story seeking to discredit a DOC officer's actions during the death of an inmate on January 1, 2001. The fabrication was undertaken in an effort to have the officer removed. On the same date, January 17, 2001, DOC charged Gamble with the violation. Accordingly, Gamble was charged within the four day limit.

The seven day time period from January 17, 2001 for the hearing excluding weekends and holidays placed the due date of the hearing on January 26, 2001. The hearing was not held on that date but instead a request for an extension was filed and approved on January 26, 2001 for a seven day extension. Thus, the extension (excluding weekends and holidays) allowed the hearing to be held no later than February 6, 2001. Here, the hearing was held February 1, 2001. Therefore, the hearing was timely and no failure to comply with the policy occurred.

Gamble argues the DOC decision must be reversed since the decision is not supported by the evidence. I cannot agree.

In examining a DOC determination for the presence of evidentiary support, an ALJ must review the matter in an appellate capacity. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742. In that capacity, an ALJ reviewing factual disputes between DOC and the inmate "will not substitute [the ALJ's] judgment for that of the [DOC Hearing Officer] as to the weight of the evidence on questions of fact." S.C.Code Ann. § 1-23-380(A)(6) (Supp. 2000).

Thus, once the facts are established by the Hearing Officer, the ALJ will not re-weigh the evidence in an attempt to come to an independent conclusion on the factual dispute. Rather, the ALJ will rely upon the Hearing Officers factual determinations unless such those determinations are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. S.C. Code Ann. § 1-23- 380(A)(6)(e) (Supp. 2000). In determining if substantial evidence supports the Hearing Officer's factual determinations, the ALJ does not look for "a mere scintilla of evidence nor evidence viewed blindly from one side, but [rather looks for ] evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached." Palmetto Alliance, Inc. v. South Carolina Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984). Accordingly, if such evidence is present, substantial evidence is present and the factual determinations will not be overturned.

Here, substantial evidence supports the factual determinations made below. At the hearing, evidence was received of confidential statements from other witnesses who expressed a view contrary to Gamble's of the events surrounding the death of an inmate from a heart attack. Further, a report from an internal affairs investigation as well as testimony from an investigator concluded that the statements of three inmates (one of whom was Gamble) were so similar as to give the impression of being rehearsed. While Gamble maintained his view was correct, the evidence could lead reasonable minds to believe Gamble's view was fabricated with the intent of discrediting a DOC officer. Thus, under such evidence, reasonable minds could reach the conclusion that Gamble committed the act here in dispute. Thus, substantial evidence supports the DOC decision.

The guilty verdict entered by DOC against Ronnie Gamble, #215788 is AFFIRMED

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 30, 2002

Columbia, South Carolina