SC Administrative Law Court Decisions

I. STATEMENT OF CASE

This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Willie Dobey, an inmate incarcerated with the Department of Corrections ("Department"). On September 13, 2001, Dobey was convicted of Refusing or Failing to Obey Orders, SCDC Disciplinary Code 2.13. As a result of his conviction, Dobey lost 30 days of good-time credit. Dobey filed a grievance with the Department on September 6, 2001, and received the Department's final decision on October 26, 2001. On November 14, 2001, Dobey filed this appeal.

II. BACKGROUND

On September 5, 2001, Dobey was ordered by Associate Warden Dunlap to have no contact with Inmate Gilmore while an investigation was ongoing. ⁽¹⁾ According to the Incident Report, Dobey violated this order by sending a letter through another inmate instructing Gilmore as to what he should say during the interview and promising a watch to hold as payment until money was returned. Dobey was charged with violating SCDC Disciplinary Code 2.13, Refusing or Failing to Obey Orders. Dobey received written notice of the charge on September 11, 2001. The hearing was held on September 13, 2001, before a Disciplinary Hearing Officer ("DHO"). Dobey was represented at the hearing by counsel substitute.

III. JURISDICTION

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 Dobey 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 Dobey'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.

During the hearing, the DHO required Dobey to excuse himself while "confidential information and the confidential evidence was reviewed." At the beginning of the hearing the DHO orally told Dobey that "I must inform you there is some evidence which will be read on tape in front of Counsel Substitute; however, you'll not be privy to that evidence as in policy 22.14, any confidential statements given in confidentiality or secrecy from staff here at the institution shall not be read or be presented in your presence...."(emphasis added). No other explanation was provided at the hearing and the DHO failed to provide an explanation in the Disciplinary Report and Hearing Record ("Hearing Report"). Further, the transcript reveals that a statement from other than a staff member was also introduced during the time Dobey was removed from the hearing.

According to Respondent's brief, SCDC policy, OP-22.14 provides, "Inmates may hear all evidence presented at the hearing, unless hearing the evidence will jeopardize the life or safety of the persons or the security and order of the institution. The DHO (Disciplinary Hearing Officer) must provide written reasons in the record for the accused inmate's absence during any portion of the hearing." (emphasis added). There is no evidence in the Record that the DHO complied with the section. The DHO did state orally on the record that Dobey must be removed in order to hear confidential evidence. However, no written reasons were given (the transcript was later typed, but the DHO did not provide written reasons even though an explanation is required on the Hearing Report). No reasons were given as to why Dobey's hearing the evidence would jeopardize the life or safety of the person or the security and order of the institution.

Even orally, the DHO, prior to requiring Dobey to excuse himself from the hearing, referred to "confidential statements given in confidentiality or secrecy from staff here at the institution." No mention was made at that time of other evidence received or why it was confidential.

Nothing in Wolff v. McDonnell, 418 U.S. 539 (1974) expressly states that an inmate has a right to be present during a disciplinary hearing. However, as a part of the inmate's due process right to call witnesses and present evidence, courts have generally held that an inmate has a right to be present at his own disciplinary hearing but that right is conditioned on "maintaining institutional safety and other correctional goals." See Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir.1989) ("[T]he question presented in this case is not whether a prisoner must be given the opportunity to attend the hearing, but rather whether a prisoner's right to attend the hearing is "absolute" in the sense that the hearing cannot under any circumstances be conducted without him. We hold that a prisoner does not have such a right."); Battle v. Barton, 970 F.2d 779, 782 (11th Cir. 1992) ("Notwithstanding the fact that an inmate has a due process right to be present at his own prison disciplinary hearing, the Supreme Court has made clear that the rights accorded inmates at disciplinary hearings are not absolute, and are limited by 'the competing concerns of maintaining institutional safety and other correctional goals.' Smith v. Massachusetts Dept. of Corrections, 936 F.2d 1390, 1399 (1st Cir.1991)."); 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'....".). Thus, the issue is whether "maintaining institutional safety or other correctional goals" justified removal of Dobey from the

disciplinary hearing. The burden of proof of whether removal meets a proper institutional goal is on the Department. See Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir.1985) ("the burden of persuasion as to the existence and sufficiency of such institutional concerns... is borne by the prison officials, not by the prisoners.").

The Department has failed to meet its burden of proof in this case. No explanation is given on the Hearing Report, or elsewhere in the Record, why confidentiality was required to maintain institutional safety or correctional goals, particularly as to the inmate's statement. ⁽²⁾ The Department failed to follow its own procedures by not providing written reasons why it was necessary for Dobey to be absent during this portion of the hearing. ⁽³⁾

Although legitimate reasons may exist for the removal of Dobey from this proceeding

while the evidence and information were received, they do not appear in the Record.

IT IS THEREFORE ORDERED, that the conviction of Dobey of violating SCDC Disciplinary Code 2.13, Refusing or Failing to Obey Orders, is vacated and this matter is remanded for a new hearing.

AND IT IS SO ORDERED.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

February 11, 2002

Columbia, South Carolina

1. The investigation concerned an incident involving Inmate Gilmore and Inmate Dobey as to whether Gilmore paid $50.00 to Dobey to complete some legal paperwork for him. This issue is not before me in this case.

2. One might surmise why confidentiality might be necessary in a case such as this. However, one should not be left to "surmise" when another is denied an opportunity to confront a key witness. In this case, it is apparent from Dobey's brief and the transcript that the name of the inmate was and is known to Dobey. It is also noted that neither the inmate nor the staff member was present for cross-examination by Counsel Substitute.

3. Every failure of the Department to follow its own policies and procedures, whether deliberate or inadvertent, is not a violation of due process. However, the case here involves a significant due process issue of being allowed to hear and confront evidence.