SC Administrative Law Court Decisions

Douglas Turner, #194475 (Turner) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Turner of use or possession of narcotics, marijuana, or unauthorized drugs for which he lost 90 days good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Turner 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, Turner argues that the DOC decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

A violation of DOC's drug rule occurs when an inmate refuses to take a drug test. Turner argues his conviction must be reversed since he gave no urine specimen and thus he cannot be charged with a positive test and thus being in violation of the use or possession of narcotics, marijuana, or unauthorized drugs. 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. Evidence was offered that Turner did not provide a urine sample during the drug testing. Specifically, Turner admitted at the hearing that he refused to take the drug test. In addition, the charging officer filed a report stating Turner refused the drug test. Further, the record establishes that Turner was told that a failure to take a drug test carried the same consequences as being tested and found positive. These determinations would allow reasonable minds to reach the conclusion that Turner failed to take the drug test. Further, the DOC drug policy explicitly informs the inmate that a refusal to take a drug test carries the same consequences as a positive drug test. Thus, substantial evidence supports the DOC decision.

The guilty verdict entered by DOC against Douglas Turner, #194475 is AFFIRMED

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 18, 2002

Columbia, South Carolina