SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Randall Pardue, an inmate incarcerated with the Department of Corrections ("Department"). On May 1, 2001, Pardue was convicted of Sexual Misconduct, SCDC Disciplinary Code 2.09. As a result of his conviction, Pardue lost 30 days of good-time credit and his contact visits were suspended. Pardue filed a grievance with the Department on May 6, 2001, and received the Department's final decision on July 12, 2001. That same day, Pardue filed this appeal.

II. BACKGROUND

On April 20, 2001, Pardue was in the visitation room with a female visitor at the same time that other inmates were visiting with their visitors. No Department employee was present in the visitation room. At some point, the niece of one of the inmates approached an office adjoining the visitation room to complain that several inmates and their female guests were engaging in sexual acts. Sergeant Godfrey, who was in the office, entered the visitation room and alleges he witnessed Pardue and his guest engaging in sexual behavior. After the incident, Sergeant Godfrey completed an Incident Report detailing his observations and submitted it to his supervisor, who charged Pardue with violating Sexual Misconduct, SCDC Disciplinary Code 2.9. Pardue received written notice of the charge that same day while in Pre-Hearing Detention. The hearing was held on May 1, 2001, before a Disciplinary Hearing Officer ("DHO"). Pardue waived his accuser's presence at the hearing by checking the appropriate box on his Notice of Hearing. During the hearing, the DHO read Godfrey's Report into the Record, which described in graphic detail Godfrey's alleged observations. The DHO then permitted Pardue, through his counsel substitute, to offer evidence. Three inmate witnesses testified on behalf of Pardue that they did not see him engaging in any sexual act, although all three testified that other inmates in the visitation room did engage in such behavior. Finally, Pardue was permitted to testify. Pardue testified that other inmates were engaging in sexual acts in the visitation room, but that he had not. He also testified that Sergeant Godfrey was out to get him. At the conclusion of the hearing, the DHO informed Pardue that he had been found guilty of violating SCDC Disciplinary Code 2.09, Sexual Misconduct , and that he would be sanctioned with the loss of 30 days' good time ⁽¹⁾. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), in which the DHO documented her reliance on Villena's Report and the imposed sanctions.

Pardue filed a grievance on May 6, 2001, appealing his conviction. On June 5, 2001, the Warden denied his grievance, finding "there were no procedural errors and the sanctions imposed were appropriate." On June 10, 2001, Pardue 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.

Inmate Pardue lost 30 days of good time after he was convicted of a prison disciplinary infraction. As such, I find that this tribunal has jurisdiction to hear Inmate Pardue'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.

I find that Pardue was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Pardue was given written notice of the charges several days prior to the hearing, affording him ample time to prepare his case. He was then provided a hearing before an impartial hearing officer. In addition, although not constitutionally required, Pardue was afforded counsel substitute to assist him in his defense. There is no evidence that his counsel substitute was ineffective. Further, Pardue was given the opportunity to offer evidence and witnesses. The DHO prepared a written report detailing the evidence he relied upon and the penalty assessed in finding Pardue guilty of the disciplinary infraction. Finally, Pardue was permitted to appeal the DHO's decision through the inmate grievance process.

Moreover, despite Pardue's allegation in his Brief ⁽²⁾ that he did not intend to waive his right to have his accuser present at the hearing, when given the opportunity to request his accuser's presence during the hearing, Pardue failed to do so. Finally, I find that substantial evidence in the whole of the Record supports Pardue's conviction. The Incident Report, signed by Sergeant Godfrey, detailed in narrative form the incident as witnessed by him. Therefore, I cannot find that the decision of Respondent was clearly erroneous, or arbitrary or capricious or an abuse of discretion, in view of the substantial evidence on the whole record.

As to the allegations of error set forth in Pardue's grievances and subsequent filings, none of these were raised during the course of the hearing, although Pardue was himself present and had ample opportunity to do so. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. Accordingly, the Department's final decision is affirmed. IV. ORDER

IT IS HEREBY ORDERED that the appeal of Pardue is DISMISSED and the Final Decision of the Department is AFFIRMED.

AND IT IS SO ORDERED.

_________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

January 28, 2002

Columbia, South Carolina

1. In his Step One Grievance, Pardue states that his visitation privileges have also been suspended. However, at the conclusion of the hearing and in the Disciplinary Hearing Report and Record, the only sanction imposed was the loss of 30 days' good time. Therefore, the Department must reinstate Pardue's visitation immediately if such privileges have indeed been suspended.

2. Pardue's post-Notice of Appeal filing is actually entitled "Motion for Leave to Amend." However, this tribunal accepts Pardue's Motion as a properly filed Brief in this instance.