SC Administrative Law Court Decisions

Supreme Outspoken 7 Allah #219195 (Allah) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Allah of sexual misconduct for which Allah lost 100 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Allah 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, while Allah's brief is less than specific, he essentially argues that the DOC decision is made upon unlawful procedure and the decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

Allah argues the hearing was carried out under unlawful procedure since he was denied his rights to due process. I disagree.

1. Failed To Provide Procedural Due Process.

Allah argues procedural due process was not followed. 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 particular, Allah argues that the hearing officer was not impartial.

Impartial Hearing Body

The use of prison officials to hold inmate hearings does not present an inherent showing of a lack of an impartial hearing and such use of prison officials is not a violation of due process. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (no due process violation when prison officials serve as impartial decision-makers at disciplinary hearings). Certainly, an impartial hearing board is required. Wolff, 418 U.S. at 539, 572 n.20. However, due process is violated only if the officer is substantially involved with the investigation. See Merritt v. De Los Santos, 721 F.2d 598, 601 (7th Cir. 1983) (due process violated only if officer substantially involved with investigation of charges against inmate, but not violated if officer's involvement at hearing is only tangential); see, e.g., Diercks v. Durham, 959 F.2d 710, 713 (8th Cir. 1992) (due process violation when complainant was member of board hearing the case). But see, e.g., Pedraza v. Meyer, 919 F.2d 317, 320 (5th Cir. 1990) (no due process violation when disciplinary board official's only involvement in filing of complaint was receipt of incident report and intercepted letters); Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) (no due process violation when investigating officer signs disciplinary report as shift supervisor); Ivy v. Moore, 31 F.3d 634, 635 (8th Cir. 1994) (no due process violation when chairperson of hearing personally investigated defense because did not threaten impartial decision-making); Mitchell v. Maynard, 80 F.3d 1433, 1446 (10th Cir. 1996) (no due process violation because officer did not witness inmate's participation in riot, was not present during riot, and did not prepare offense report).

Here, no evidence suggests the hearing officer had any participation in the investigation. Likewise, no evidence identifies in particular in which the hearing officer was unfair or had reached a pre-designed decision. Rather, the decision was reached based on the evidence produced at the hearing. Accordingly, no bias has been shown and no due process has been violated.

Allah argues the DOC decision must be reversed since the decision is not supported by the evidence. 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. A DOC officer testified that she saw Allah with his penis out of his jump suit and he was stroking it in an up and down motion. No contrary evidence was received from any other witness except for a denial by Allah. These determinations would allow reasonable minds to reach the conclusion that Allah committed the act here in dispute. Thus, substantial evidence supports the DOC decision.

The guilty verdict entered by DOC against Supreme Outspoken 7 Allah #219195 is AFFIRMED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 23, 2002

Columbia, South Carolina