SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division ("Division") pursuant to an appeal filed by Daphney Polodore ("Appellant") on June 11, 2001. Appellant is appealing a final decision issued by the South Carolina Department of Corrections ("Department") on May 17, 2001. On September 11, 2001, Appellant filed her brief. On October 15, 2001, the Department filed the Record on Appeal and the Department's Brief and Motion to Dismiss, asserting the Division does not have jurisdiction to hear this appeal.

On February 27, 2002, the undersigned ordered the Department to deliver to the Division the entire record and the tapes of the disciplinary hearing conducted on December 20, 2000, as well as those from the classification hearing held on December 21, 2000, not later than Wednesday, March 13, 2002. As of the date of this order, some evidence, which apparently was entered into the record at the disciplinary hearing, has not been delivered to this tribunal. Notwithstanding, the undersigned has reviewed the file and the tapes from the hearing and find that there is not substantial evidence to support the decisions made by the Disciplinary Hearing Officer ("DHO"). See Order dated December 20, 2001. Further, this tribunal denies the Department's Motion to Dismiss for the reasons set forth in this order.

STANDARD OF REVIEW

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 Al-Shabazz, the Supreme Court created a new avenue by which inmates could seek review of final decisions of the Department in "non-collateral" matters, i.e., matters in which an inmate does not challenge the validity of a conviction or sentence, by appealing those decisions to the Division and ultimately to circuit court pursuant to the Administrative Procedures Act.

In McNeil v. South Carolina Department of Corrections, the Division issued an En Banc Order holding that the Division's 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. McNeil v. S.C. Dep't of Corrections, 00-ALJ-04-00336-AP (Sept. 5, 2001) (en banc).

According to Al-Shabazz, the Administrative Law Judge sits in an appellate capacity to review the Department's final decisions in inmate grievance cases. 338 S.C. at 377, 527 S.E.2d at 754. As in all cases subject to appellate review by the Division, the Administrative Law Judge reviews the Department's final decision in the same manner and has the same authority as prescribed in § 1-23-380(A) for circuit court review of final agency decisions. S.C. Code Ann. § 1-23-380(B) (Supp. 2001). The Administrative Law Judge, therefore, must not substitute its judgment for that of the Department as to the weight of the evidence. The judge, however, may reverse or modify the decision if the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of 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.

S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2001); see 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 its decision by documenting the findings of fact and basing its decision on reliable, probative, and substantial evidence on the whole record. Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756.

FACTS

Appellant has a history of Petit Larceny charges from August 1987 through July 1994 for which she served time. On August 1, 1998, Appellant was convicted of Shoplifting and was incarcerated at the Leath Women's Correctional Institution ("Leath"). She is considered a nonviolent offender.

The record shows that Appellant has had three major disciplinary convictions for which she was found guilty and lost good time credits of 190 days. She also has had three minor violation charges for which she was convicted.

On March 20, 2000, upon request made to Nathaniel Hughs, Appellant voluntarily enrolled in the WRA drug program at Leath. There is no evidence in the record to show that Appellant was required or mandated to participate in the WRA program. Her primary counselor in the program was Pam Turner. However, due to Ms. Turner's attendance at an academy training program and a period of time Ms. Turner was out sick, Lisa Davis was Appellant's temporary counselor for several months up to the time of the charge which is the subject of this appeal. On December 11, 2000, ⁽¹⁾ Appellant was charged with Refusing to Attend Compulsory Program in violation of SCDC Disciplinary Code 2.15. On December 20, 2000, at the disciplinary hearing, Appellant was found guilty of the alleged violation and was terminated from the drug program. ⁽²⁾

At the time Appellant was terminated from the WRA program, she had been enrolled in it for nine months and was in the final phase, just prior to graduation. Appellant asserts that her participation in the program covered its entire criteria and all its elements, including all group sessions the program offered, including one on mentor training, and that she never had a sick pass. Further, Appellant asserts that she had completed her behavior expectations portion on December 4, 2000, that she had received a certificate of completion from phases 1 and 2, had scored 108 on the phase 1 test and 103 on the phase 2 test and that she was refused the opportunity to take the final exit exam even though she had completed phase 3. Further, she asserts that she had served more than the required time in each group, and had completed all homework and group assignments. There is no evidence in the record that she did not have a good understanding of the group materials and that her assertions are untruthful. The record reflects that Appellant was set to graduate on December 15, 2000.

Appellant asserts that toward the end of the program she felt threatened by her counselor, Lisa Davis. According to Appellant, Ms. Davis "promised to have [Appellant] on the yard cutting invisible grass."

According to the Grievance Investigation report prepared by the Department, Appellant had no written rules violations between September 22, 2000 and December 11, 2000, the date she was charged with Refusing to Attend Compulsory Program. Further, there was no documentary evidence presented into the record at the hearing nor provided to this reviewing tribunal to support the charge that Appellant failed to attend the program, failed to fully participate in the program, or intimidated other inmates.

At the disciplinary hearing, the Department treated the charge as a major disciplinary violation, a Level 2 offense, and the violation was identified as "refusing to attend compulsory program." See Grievance Investigation report and SCDC Policy/Procedure, No. OP-22.14, Inmate Disciplinary System, dated February 15, 2000, Appendix A.3.b.(15) for "Refusing to Attend the Compulsory (Mandatory) Program (2.15)."

A review of the record does not support the determination made by the DHO. On December 19, 2000, Appellant was served with a copy of the written charge. She was summoned to a hearing before the DHO on December 20, 2000, less than 24 hours after she was served with the written charge. ⁽³⁾ In order to proceed with the hearing, Appellant had to voluntarily waive the 24-hour notice, which she did during the hearing. Further, the disciplinary hearing must be held within seven days (excluding weekends and holidays) of the formal charging of the violation. That requirement was complied with in this case.

During the hearing, Mr. Reid, the assistant director of the WRA program, testified via speaker phone. After some period of time he found Appellant's file. He testified that there were no written violations against Appellant but that she was placed on a new behavioral expectation "contract" on October 3, 2000. He stated that the treatment team found that Appellant did not complete the new contract and it was signed off by the director, Ms. Davis. Ms. Davis also testified via speaker phone. It was quite difficult to understand her testimony although she did testify that Appellant was told of her failure to comply with the behavior expectation contract in early December 2000. No explanation was given to the DHO, though. No explanation was given by the DHO why the two accusing employees/witnesses were unable to appear in person at the hearing to offer their testimony.

Appellant introduced into the record at the hearing letters from 31 inmates who were enrolled in the WRA program. As read into the record by the DHO during the hearing, each of the affiants stated that Appellant had good participation in the programs of WRA, that Appellant took the program seriously, that Appellant tried hard and provided input during the sessions. Further, they stated that they had seen a change for the good in Appellant.

Although these statements were made a part of the record, the Department failed to provide them to this tribunal for review.

The Department attempts to treat the Step 1 and Step 2 grievance forms as appeals from the adverse determination by the Institutional Classification Committee ("ICC") on December 21, 2000. The ICC conducted a status review based on the disciplinary conviction on December 20, 2000. It determined that Appellant's complaint about being placed in C-Custody was appropriate. However, in the Step 1 and the Step 2, Appellant states that she wants "my 100 days good time back and I am not guilty." It is apparent that Appellant is appealing the conviction from the major disciplinary hearing, not her reclassification. This argument by the Department is totally lacking in merit. This tribunal does have jurisdiction to consider the liberty interest which is at issue herein, i.e., loss of 100 good time days.

DISCUSSION

In this case there was insufficient evidence in the record to support the decision reached by the Department. There is no evidence that this WRA program was a mandatory or required program for Appellant. For that reason alone, the decision must be overturned since the charge is a violation of SCDC 2.15 or "Refusing to Attend the Compulsory (Mandatory Program)." Further, there is no recitation in the written record or in the decision outlining with specificity any continual rules violations, especially from September 22, 2000 to the date of the charge in December 2000. Although the DHO indicated in the Step 1 Inmate Grievance Form that he considered Appellant's disciplinary history, custody history, and work history, he set forth therein no items or explanations with specificity which he utilized and considered in making his decision. Further, it is noticeable that all such history had occurred prior to September 22, 2000, and Appellant was authorized to continue in the WRA program until early December 2000 when, just before she should have graduated, she was told she was being terminated. Although termination may be a program decision, there must be relevant factors to be considered prior to terminating a participant. To allow the program to discharge a person subjectively and then to allow that discharge, on review by the DHO, to be upheld without any reasoning given, is totally lacking in proof and is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Further, it is clearly an unwarranted exercise of discretion on the part of the WRA team and the DHO.

Accordingly, this tribunal finds and concludes that the decision by the DHO should be reversed. Appellant should be reinstated in the WRA program and returned immediately to the classification status she was assigned prior to this disciplinary conviction. The 100 days of good time taken from Appellant should be restored to her and her record should be marked accordingly. Further, Appellant should be credited with 20 days of good time for the month of December 2000.

ORDER

IT IS HEREBY ORDERED that the final decision by the Department is reversed.

IT IS FURTHER ORDERED that Appellant must be allowed to return to the WRA program and complete the program. Appellant also must be returned immediately to the classification status she was assigned prior to this disciplinary conviction.

IT IS FURTHER ORDERED that within ten days of the date of this order, the Department must expunge from its records all references pertaining to this disciplinary conviction.

IT IS FURTHER ORDERED that within ten days of the date of this order, the Department must restore 100 days of good time credits that were assessed against Appellant as a result of this disciplinary conviction. The Department also must credit Appellant with 20 days of good time for the month of December 2000.

IT IS FURTHER ORDERED that Respondent must provide proof of the expungement of records and the restoration of good time credits within fifteen days of this order.

AND IT IS SO ORDERED.

__________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

April 9, 2002

Columbia, South Carolina