ORDERS:
FINAL ORDER AND DECISION
Grievance No. MacD 119-01
I. Introduction
Mario Wagner, #215058 (Wagner) brings this appeal challenging a decision by the South Carolina Department of
Corrections (DOC) which convicted Wagner of possession of unauthorized prescription drugs for which he lost 90 days of
good time credit. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Wagner 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.
II. Scope of Review
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, Wagner argues that the DOC decision is affected by an error of law.
III. Analysis
The error of law alleged is that the conclusion reached by the hearing officer does trigger a violation of the offense of the
Use or Possession of Narcotics, Marijuana or Unauthorized Drugs, Including Prescription Drugs (1.10). The provision of
1.10 is as follows:
The actual or constructive possession of any item which was not issued to the inmate officially or which cannot be
purchased by him or her in the prison canteen, or has not been authorized by the Warden. Drugs of any description (except
those prescribed by an authorized physician and within authorized amounts), e.g., barbiturates, narcotics, medicines,
marijuana, and poisons, as well as all drug paraphernalia, such as needles, syringes, etc.
DOC charged Wagner with violating the above quoted provision since Wagner was "found to be in possession of
prescription medicine which had expired." Tr. p. 6. I hold that such a finding does not constitute a violation of the above
quoted offense of 1.10.
In the instant case, at some point in the past, Wagner was prescribed Motrin by a DOC physician. On October 23, 2001,
Wagner still had in his possession the unused portion of the prescribed medication in that he had 4 Ibuprofen tablets, 400
mg. and 14 Ibuprofen, 800 mg. The offense of 1.10 states that no violation results if an inmate has prescription drugs in his
possession as long as the medicine is prescribed by an authorized physician and as long as the medicines are within
authorized amounts.
Here, Wagner had prescription medicine from a DOC physician and no evidence shows that the authorized amounts
exceeded that which was prescribed. Further, no rule (or at least no rule has been identified by DOC in its briefing of this
matter) states that an inmate must return to DOC officials any properly prescribed but unused portion of medicines. Further,
no rule tells the inmate that expired prescription medicine must be destroyed. Thus, the finding that Wagner was "found to
be in possession of prescription medicine which had expired" does not establish a violation of 1.10.
IV. Conclusion
The guilty verdict entered by DOC against Mario Wagner, #215058 is REVERSED.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 18, 2002
Columbia, South Carolina |
