SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to the Writ of Mandamus filed by Bryant Kinlock ("Petitioner") on February 6, 2002. Petitioner was found guilty of Striking an Employee with or without a Weapon, SCDC Code 1.03, on January 30, 2001. As a result of the conviction on the major disciplinary charge, Petitioner lost 300 days of earned good-time credit.

In his Writ of Mandamus, Petitioner asks this tribunal to reverse the agency decision. Petitioner claims that he filed a grievance with the South Carolina Department of Corrections ("Department") concerning this matter. Further, Petitioner claims that the Department has overlooked or misplaced his grievance. The Department, in its Motion to Dismiss, filed on April 8, 2002, asserts that Petitioner did not file a grievance. Exhibit 1 of the Department's Motion to Dismiss contains the Petitioner's Discipline and Grievance History. There is no evidence of a grievance being filed in relation to this matter.

The Division's jurisdiction to hear matters on appeal from the Department 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 holding that the Division's jurisdiction in inmate appeals is limited to two types of case: (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 ⁽¹⁾ as punishment in a major disciplinary hearing. McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001). Pursuant to ALJD Rule 70(F), the holding of the En Banc Order is binding upon this case.

This matter should be dismissed. According to the Department's Inmate Grievance System, SCDC Code GA-01.12, a Step 1 Grievance must be filed within 15 days of the contested action. This policy further states that an inmate may request a copy of the grievance form. In this case, Petitioner has not provided any evidence that a grievance was filed. Further, there is no evidence in the Grievance History to support Petitioner's allegation.

The Division lacks subject matter jurisdiction to hear this appeal. See Lake v. Reeder Constr. Co., 330 S.C. 242, 248, 498 S.E.2d 650, 653 (Ct. App. 1998) (The "[l]ack of subject matter jurisdiction can be raised at any time, can be raised for the first time on appeal, and can be raised sua sponte by the court"). Petitioner is required to exhaust his administrative remedies before filing an appeal. See Matter of Chrisanthis 315 S.C. 382, 434 S.E.2d 254 (S.C. 1990). Here Petitioner failed to file a grievance as provided by SCDC Code GA-01.12, and this court has no authority to expand the time in which the request for a hearing must be filed. See Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206

Accordingly, it is hereby

ORDERED that the Department's Motion to Dismiss is granted and this appeal by Appellant is dismissed with prejudice.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

May 21, 2002

Columbia, South Carolina

1. Earned good time credits, authorized by the rules of the Department, rise to the level of a liberty interest. However, an inmate has no liberty interest in "good time" credits which he is unable to earn or fails to earn as a result of a rule violation. Evans v. S. C. Dep't of Corrections, 00-ALJ- 04-00128-AP (May 23, 2001).