SC Administrative Law Court Decisions

Michael Jones, #254065 (Jones) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Jones of use or possession of narcotics, marijuana or unauthorized prescription drugs for which he lost 180 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Jones 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, Jones argues that the DOC decision is made upon unlawful procedure.

Jones argues the hearing was carried out under unlawful procedure since DOC failed to provide procedural due process and did not follow its own procedures.

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 Jones argues that the hearing officer was biased. I disagree.

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). Rather, the presumption is that the officer will act in a neutral and impartial manner.

Certainly, an impartial hearing board is required. Wolff, 418 U.S. at 539, 572 n.20. However, proof of a due process violation requires specific acts of lack of neutrality such as the hearing officer being 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).

Here, no bias by the hearing officer is shown. No evidence shows the hearing office was involved in the investigation of the incident and no evidence shows a pre-designed determination. Rather, the record shows evidence and testimony were presented at the hearing and that the hearing officer relied upon such in reaching a decision. No evidence of bias is present.

Jones also asserts that due process was violated since DOC failed to follow its own rules governing the grievance process. Here, the specific allegation is that the incident report was given to a DOC officer but the officer was not the shift supervisor as required by SCDC Policy OP-22.14. However, even if such a failure occurred, a reversal of or even a modification to the DOC order is not warranted.

Well established law explains that an agency's failure to follow its own procedural rules and regulations does not violate an aggrieved party's constitutional due process rights since no such constitutional right exists. See Board of Curators v. Horowitz, 435 U.S. 78, 92, 98 S.Ct. 948, 956, 55 L.Ed.2d 124, 136 (1978); Hernandez v. Estelle, 788 F.2d 1154 (5th Cir.1986) ("The claim is that the mere failure of the TDC [Texas Department of Corrections] officials to follow their regulations was a constitutional violation. There is no such controlling constitutional principle."). Instead of a constitutional issue, deciding whether an agency is obligated "to follow its own rules and regulations is founded in principles of administrative law." Ogburn-Matthews v. Loblolly Partners (Ricefields Subdivision), 332 S.C. 551, 505 S.E.2d 598, 603 (Ct.App. 1998), overruled on other grounds by Brown v. South Carolina Dept. of Health and Environmental Control, ___ S.C. ___, 560 S.E.2d 410 (2002).

In a traditional agency setting, the principles of administrative law leave the agency with little, if any, discretion in deciding whether to follow the regulations governing that agency. See e.g. Triska v. Department of Health and Environmental Control, 292 S.C. 190, 355 S.E.2d 531 (1987) ("DHEC must also follow its own regulations . . . in carrying out the legitimate purposes of the agency."). However, in an inmate context, significant discretion is available to DOC.

For example, even when the inmate holds a constitutionally granted procedural due process right, DOC has discretion to limit that right for rational reasons. See Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 2196, 85 L.Ed.2d 553 (1985) (due process is met "so long as the reasons [for depriving an inmate of his rights] are logically related to 'institutional safety or correctional goals'....".). Moreover, given DOC's task of maintaining a orderly prison environment, the exercise of broad discretion is inherent. Indeed, that degree of discretion is such that a reviewing body is essentially concerned with whether DOC's actions are rationally grounded as opposed to arbitrarily based. Al-Shabazz, supra. at 381 (among other concerns, a body charged with reviewing a DOC inmate decision is concerned with whether the "prison officials have acted arbitrarily [or] capriciously . . . Brown [v. Evatt], 322 S.C. [189] at 194, 470 S.E.2d [848] at 851 [(1996)]; Crowe [v. Leeke], 273 S.C. [763] at 764, 259 S.E.2d [614] at 615 [(1979)].")

Thus, if DOC fails to follow a procedural rule, the "principles of administrative law" will not warrant a reversal of or a modification to the appealed order if the failure to follow the procedure is based in reason as opposed to capriciousness. Here, the record shows that the incident report was provided to a DOC officer and that the matter was handled in a reasonably expeditious manner. Further, the method of handling the incident report has not been shown to have prejudiced Jones. Thus, no basis exists for altering the penalty imposed. ⁽¹⁾

The guilty verdict entered by DOC against Michael Jones, #254065 is AFFIRMED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 30, 2002

Columbia, South Carolina

1. Finding broad discretion in DOC is especially applicable since the General Assembly expressed its intent not to rigidly bind inmate policy decisions. Rather DOC is exempt from the duty to promulgate regulations dealing with the supervision of inmates. See S.C. Code Ann. § 1-23-10(4) (Supp. 2000) (where DOC has no duty to issue inmate supervision "regulations" since such does not include "orders of the supervisory or administrative agency of a penal, . . . institution, in respect to the institutional supervision, custody, control, care, or treatment of inmates, [or] prisoners, . . . .").