ORDERS:
ORDER OF DISMISSAL
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 November 2, 2001, Dobey was convicted of
SCDC Disciplinary Code 2.24, Any Act Defined as a Misdemeanor by the Laws of the State of South Carolina, after he
made inappropriate contact with a correctional officer. As a result of his conviction, Dobey lost 300 days of "good-time"
credit. Dobey filed a grievance with the Department and received the Department's final decision on December 18, 2001.
On January 10, 2002, Dobey filed this appeal.
II. BACKGROUND
On October 27, 2001, in Palmetto West dormitory, Officer Eastmon opened a supply closet so that Dobey could put up a
broom and dustpan. While Officer Eastmon had her back turned to him, Dobey rubbed Officer Eastmon's buttocks in a
back and forth motion. Threatened, Officer Eastmon quickly walked away toward the guard's station to separate herself
from Dobey. After five minutes, Officer Eastmon approached Dobey and informed him that he would be charged with an
offense for intentionally touching her.
After the incident, Officer Eastmon completed an Incident Report detailing her encounter with Dobey and submitted it to
her supervisor. Dobey was initially charged with violating SCDC Code 1.03, Striking an Employee With/Without a
Weapon. Dobey received written notice of the charge on October 30, 2001. The hearing was held on November 2, 2001,
before a Disciplinary Hearing Officer ("DHO"). At the commencement of the hearing, the DHO informed Dobey that he
was reducing the charge from 1.03 to 2.24, Any Act Defined as a Misdemeanor by the Laws of the State of South Carolina.
The DHO identified the misdemeanor as Simple Assault and Battery. Dobey did not object. During the hearing, Dobey
was represented by counsel substitute and was permitted to offer evidence on his own behalf. Also, Dobey's accuser was
present at the hearing via telephone and testified to the substance of her Incident Report. In addition, Officer Eastmon was
subject to being cross-examined. At the conclusion of the hearing, the DHO informed Dobey that he had been found guilty
of simple assault and battery and, consequently, of 2.24, and would be sanctioned with the loss of 300 days of good time
credit. After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), which
documented the DHO's findings based on Officer Eastmon's testimony and her Incident Report. Finally, the Hearing
Record reflects that Dobey lost 300 days of good-time credit as a result of the conviction.
Dobey filed a grievance on November 13, 2001, appealing his conviction of violating SCDC 2.24. On November 21,
2001, the Warden denied his grievance, finding credible evidence of Dobey's guilt. On November 28, 2001, Dobey
appealed the warden's decision, alleging that Officer Eastmon fabricated the incident. The Department denied his
grievance, finding that the evidence presented was sufficient to support his conviction and that the sanction imposed was
appropriate. This appeal followed. III. ANALYSIS
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.
In this case, Dobey alleges that he lost 300 days of good time after he was wrongfully convicted of a prison disciplinary
infraction. As such, I find that this tribunal has jurisdiction to hear 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.
I find that Dobey was afforded all process due him pursuant to Al-Shabazz. The Record indicates that Dobey was given
written notice of the charges in excess of 24 hours prior to his hearing before an impartial hearing officer. In addition,
although not constitutionally required, Dobey was afforded counsel substitute to assist him in his defense. Further, Dobey
was given the opportunity to offer evidence and witnesses. Dobey's accuser was present at the hearing, testified and was
cross-examined. The DHO prepared a written report detailing the evidence he relied upon and the penalty assessed in
finding Dobey guilty of the disciplinary infraction. Finally, Dobey was permitted to appeal the DHO's decision through the
inmate grievance process.
Dobey argues that he did not have notice of the charge of which he was convicted. While Dobey is technically correct that
he was not alerted that he was charged with violating 2.24 on October 30, 2001, Dobey did receive notice that he was
being charged with a rules violation for an incident occurring on October 27, 2002. There is no doubt that Dobey received
all the notice he was due to adequately prepare a defense, regardless of whether the charge were 1.03 or 2.24, simple assault
and battery. Therefore, Dobey's argument that he received inadequate notice is without merit.
Moreover, I find that there is substantial evidence to support Dobey's conviction of SCDC 2.24, Any Act Defined as a
Misdemeanor by the Laws of the State of South Carolina. Officer Eastmon's testimony and Incident Report are consistent
in that Dobey rubbed Officer Eastmon's buttocks and made a suggestive comment that threatened her.
In his brief, Dobey raises as an issue that Officer Eastmon was not physically present during his hearing. However, a
review of the transcript does not indicate that Dobey raised this particular concern during the course of the hearing. An
inmate cannot sit silently during a hearing, raising no objection as to an issue, and then raise the issue for the first time on
appeal.
All other issues raised by Appellant during the Grievance process and Appeal not argued in Appellant's Brief are deemed abandoned.
Accordingly, the Department's final decision is affirmed.
V. ORDER
IT IS THEREFORE ORDERED that the appeal of Dobey is DISMISSED and the Final Decision of the Department is
AFFIRMED;
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
March 29, 2002
Columbia, South Carolina |
