SC Administrative Law Court Decisions

Kenneth Wright, #265997 (Wright) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Wright of use or possession of marijuana for which he lost 80 days of good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Wright 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 REVERSED.

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, Wright argues that the DOC decision is made upon unlawful procedure.

Wright argued at the hearing that medications he was taking at the time of his drug test caused a false positive to result. Further, also at the hearing, Wright challenged the accuracy of the test results obtained by the officer conducting the test. Finally, Wright sought to have his urine sample tested by Drug Testing Officers, but was told such could not be accomplished since the urine sample which produced the positive result had been destroyed.

Wright argues the hearing was carried out under unlawful procedures since the drug screening evidence was not produced by Drug Testing Officers as required by DOC Policy GA-03.03. Indeed, the record shows that an officer of Kershaw Correctional Institute administered the drug test to Wright. Further, no evidence establishes that the officer was a designated and trained Drug Testing Officer as required by DOC Policy GA-03.03.

Wright specifically argues that GA-03.03 applies. DOC has made no argument in its Respondent's Brief that GA-03.03 does not apply. Indeed, the language of GA-03.03 on its face makes the procedure applicable to all drug testing since the Purpose statement explains that the procedure is "[t]o establish conditions and circumstances under which the South Carolina Department of Corrections (SCDC) will conduct drug testing of inmates." Thus, given that Wright argued in his brief that GA-03.03 applies and given the total lack of any argument by DOC that the policy does not apply, the issue is whether a failure to follow the requirements of GA 03.03 requires reversal of the results reached. Here, reversal is required.

1. Due Process

First, while a reversal is warranted, that reversal is not the result of any affront to the inmate's due process rights. On the contrary, well established law explains that an agency's failure to follow its own procedural rules and regulations does not violate any 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.").

2. Administrative Law

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). Were this a traditional agency setting, the principles of administrative law would 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.

Indeed, given DOC's task of maintaining a orderly prison environment, the degree of allowed 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, since the method of testing has been challenged and since DOC did not follow established procedure, DOC must show that the failure to follow the procedure in dispute has a basis in reason as opposed to capriciousness.

Here, DOC has presented no explanation on why it failed to apply GA-03.03. Thus, no basis shows how the failure to apply GA-03.03 is rationally grounded. In fact, at the hearing, the hearing officer was led to believe that the proper procedure had been undertaken.

DHO: You say you gave the test by procedure. That's policy and procedure as governed by SCDC, is that correct?

OFC: Yes sir.

Thus, the wrong procedure was applied and no basis is given by DOC as to why GA-03.03 was not applied. Accordingly, DOC's actions in not applying GA-03.03 are arbitrary and capricious. Moreover, the urine sample which led to the conviction has now been destroyed. Thus, no means exist to retest the sample by a trained Drug Testing Officer as required by DOC Policy GA-03.03. Accordingly, the conviction is REVERSED.

The guilty verdict entered by DOC against Kenneth Wright, #265997 is REVERSED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 23, 2002

Columbia, South Carolina