SC Administrative Law Court Decisions

Barry F. Britt, #228889 (Britt) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Britt of threatening to inflict harm on a DOC employee for which Britt lost 30 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Britt 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 VACATED and this matter REMANDED for a new hearing.

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, Britt argues that the DOC decision is made upon unlawful procedure and is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Given the decision on the unlawful procedure issue, the substantial evidence issue is not addressed.

Britt argues the hearing was carried out under unlawful procedure since DOC failed to provide 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, among other arguments, Britt asserts that advance written notice of the charge was not given at least twenty-four hours before the hearing and that any waiver of that right was not valid. I agree with Britt.

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 a 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).

Here, no factual dispute exists on the lack of notice. Britt did not have notice of the charges within 24 hours of the hearing. Indeed, the record establishes that the hearing officer suggested that the hearing be postponed until Britt had received at least 24 hours of notice.

However, contrary to the suggestion, Britt was asked at the hearing whether he wanted to waive his right to notice. Significant confusion ensued on whether Britt knowingly decided to waive that right.

DHO: Alright, if you didn't receive your 24-hour notification only other thing I can request is do you waive your right to a 24-hour notification to continue with the hearing. If not, we'll delay the hearing and start back with the hearing Monday.

I/M: I do not wish to continue with the hearing.

DHO: OK, we'll stop the hearing, we'll serve him with (inaudible), and then on Monday (inaudible) that he wasn't served. You said you wanted .......

I/M: No, I do not wish to continue.

DHO: You don't want to continue?

I/M: Yeah, I want to continue the hearing till Monday.

DHO: (inaudible) you want to go ahead, OK, you waive your right, OK, he so waives his right. We need to have him initial off, give him a copy of the charges that he didn't receive on the 19-69, and let's continue with the hearing. So you will receive a copy, you need to initial off. That's the 19-69, Mr. Britt has waived his right to a 24-hour notice and we're going to continue with the hearing.

An inmate may waive a procedural due process right if the inmate makes a "knowing, voluntary and intelligent decision" to waive the right under review. See e.g. People v. Corley, 67 N.Y.2d 105, 110, 500 N.Y.S.2d 633, 491 N.E.2d 1090 (1986) (inmate waiving right to attend hearing). Here, the waiver was not properly made.

The last statement made by Britt is that he wanted to continue the hearing until Monday. On its face, that statement says Britt does not waive the right of notice. However, the response to Britt's statement by the hearing officer is the opposite of what Britt said he wanted. Rather, the hearing officer concluded that Britt was consenting to waive the right of notice. Consistent with the hearing officer's understanding, Britt was then requested to sign a written waiver.

Given the oral statement of Britt that he wanted to wait until Monday for his hearing, the written waiver is inadequate. Indeed, given the contradiction between the oral statement and the written statement, the written waiver cannot be held proper in the absence of the hearing officer inquiring whether Britt understood that he had the right to a 24 hour notice, that he understood that the 24 hour notice had not been given, that he understood that he was about to waive that right, and that he understood that he would not later be able to argue a lack of adequate notice. In the absence of such inquiries, the written waiver is insufficient and the hearing was not held consistent with procedural due process.

The guilty verdict entered by DOC against Barry F. Britt, #228889 is VACATED and the matter REMANDED for a new hearing.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 18, 2002

Columbia, South Carolina