ORDERS:
ORDER OF REMAND
This appeal is before the Administrative Law Judge Division ("Division") pursuant to the Notice of Appeal filed by Kris
Sarayn Kollyns ("Appellant") on May 9, 2001. Appellant was convicted of the Possession of Contraband, 2.04. During a
shakedown, two officers discovered a Smith Corona typewriter along with 18 computer disks. As a result of the
conviction, Appellant lost 60 days of good time and 30 days of canteen privileges.
Pursuant to an Order dated February 26, 2002, the Department forwarded to this tribunal a transcription of the hearing on
January 24, 2001. After a review of the transcription as well as the file that was sent over, this tribunal finds the
Department fails to set forth findings of fact that would support the conviction. The Department has access to all the files
and records at all the institutions that Appellant had been incarcerated in. However, they either failed or refused to obtain
copies of those files to ensure that Appellant received a fair hearing. The record reflects that the only records which the
Department relied upon was those made on Appellant since his arrival and some telephone communication made by the
Counsel Substitute with several of the institutions. However, no sworn statements by the provider of such information was
placed int o the record.
Since this case involved a major disciplinary violation in which the Appellant lost 60 days of good time, this tribunal must
reveal carefully the final determination by the Department.
Discussion
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). Subsequently, this tribunal issued on September 5, 2001 En
Banc Order McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001) which
interpreted the breadth of its jurisdiction pursuant to Al-Shabazz. The decision held 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.
The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz,
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 Envt'l.
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 (1974).
In this case there is insufficient evidence upon which this tribunal can rely to find that the typewriter in Appellant's cell was
contraband. It seems inconceivable that the typewriter could have found its way into the cell, based on its largest in size,
without having been observed by an officer.
Accordingly, the decision of the Department is reversed and this case is remanded to the Department to conduct a hearing
wherein it shall must provide written and documentary evidence from all institutions that Appellant has been incarcerated,
whether via inventory records or check in records or sworn statements by officers who have knowledge of either Appellant
or of inventory accountability. Appellant shall have counsel substitute who shall have an opportunity to present witnesses
and evidence on behalf of Appellant which is essential to prove the ownership of the Smith Corona typewriter, if such be
the case. The hearing must be held not later than 90 days from the date of this order and no sooner than 45 days from the
date of this Order to provide both the Department and Appellant sufficient time to gather the evidence needed to enable the
Department to make a valid and meaningful decision, substantiated by clear, distinct and separately stated findings of fact
which would justify the decision against Appellant and any sanction(s). The decision must not be a conclusory decision,
Order
Accordingly, based on the above discussion,
IT IS HEREBY ORDERED that this matter is remanded to the Department to conduct a hearing on the charge of
Possession of Contraband as outlined above and issue a sufficiently detailed order containing detailed and concise findings
of fact as required by S.C. Code Ann. § 1-23-350 and Porter v. S.C. Pub. Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328
(1998), which would enable this tribunal to conduct a meaningful appellate review.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
March 15, 2002
Columbia, South Carolina |
