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SC Administrative Law Court Decisions

James Swisher #217479 vs. SCDOC

South Carolina Department of Corrections

James Swisher #217479

South Carolina Department of Corrections





This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to the decision of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). Appellant James Swisher appeals the decision of the South Carolina Department of Corrections (DOC or Department) to revoke 240 days of his "good-time" credit as punishment for violating DOC Disciplinary Code § 1.10, the Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs, Including Prescription Drugs. Having reviewed the record, applicable law, and the briefs filed by the parties in this matter, I conclude that the decision of the Department must be reversed.


In late 2001 and early 2002, DOC Investigator Roger Hood was involved in an on-going investigation concerning the smuggling of drugs into the Wateree Correctional Institution. During the course of this investigation, Investigator Hood received information from certain confidential informants that Appellant was receiving drugs from a female visitor, who regularly visited Appellant. On February 15, 2002, this visitor was arrested for the possession of drugs while on her way to visit Appellant, but prior to arriving at the institution. As a result of this arrest, Appellant was charged with violating DOC Disciplinary Code § 1.10, the Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs, Including Prescription Drugs, for the alleged attempt to obtain illegal drugs.

A hearing of the charge against Appellant was held before a DOC Disciplinary Hearing Officer (DHO) on February 20, 2002. The only evidence produced against Appellant at the hearing was Investigator Hood's written report describing the information he had received from confidential informants and noting the drug arrest of Appellant's visitor. At the close of the hearing, the DHO found Appellant guilty of the charge and revoked 240 days of his good-time credit as punishment for the offense. The DHO stated the grounds for his decision: "Based on that information of the investigator's report, I do find you guilty of an attempt to obtain drugs. By whatever means it was done-was determined-from probably phone call recordings or whatever and the confidential informants information given to the investigator." (Hr'g Tr. at 5.) Appellant appealed his disciplinary conviction to the Department, and then to this tribunal. On appeal, Appellant argues that the evidence in the record is insufficient to support his conviction.


In Al-Shabazz, the South Carolina Supreme Court held that inmates may seek review of final decisions of the Department in certain "non-collateral" or administrative matters (i.e., those matters in which an inmate does not challenge the validity of a conviction or sentence) by appealing those decisions to the ALJD pursuant to the South Carolina Administrative Procedures Act (APA). Al-Shabazz, 338 S.C. at 376, 527 S.E.2d at 754. In McNeil v. South Carolina Department of Corrections, a majority of the judges of the ALJD, sitting en banc, held that this tribunal's jurisdiction to hear inmate appeals under Al-Shabazz is limited to: (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. McNeil v. S.C. Dep't of Corrections, No. 00-ALJ-04-00336-AP, slip op. at 4-5 (S.C. Admin. Law Judge. Div. Sept. 5, 2001) (en banc). In the case at hand, Appellant contends that the Department improperly revoked 240 days of his good-time credit as punishment in a major disciplinary hearing; accordingly, this tribunal has jurisdiction over this matter.

When reviewing the Department's decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754. Consequently, this tribunal's review of inmate appeals is confined to the record presented, id., and its inquiry into these matters is primarily concerned with ensuring that the Department has granted aggrieved inmates the process they are due when their constitutional rights are implicated. Id. at 369, 527 S.E.2d at 750; McNeil, No. 00-ALJ-04-00336-AP, at 5 ("[O]ur review is limited solely to the determination of whether the Department granted 'minimal due process' in reaching [its] decisions . . . ."). Further, recognizing that prison officials are in the best position to decide inmate disciplinary matters, this tribunal will adhere to the traditional "hands off" approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz, 338 S.C. at 382, 527 S.E.2d at 757; see also Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779 (1980) (stating the traditional "hands off" approach of South Carolina courts regarding internal prison discipline and policy). However, notwithstanding this deferential standard of review, this tribunal must conduct meaningful review of the Department's actions to ensure that inmate grievances are addressed in a fair, reasonable, and efficient manner. Al-Shabazz, 338 S.C. at 383, 527 S.E.2d at 757.

In the present case, Appellant contends that the Department's decision to revoke his good-time credit was made in violation of his due process rights. Because inmates have a protected liberty interest in their earned statutory good-time credits under the Fourteenth Amendment, they are entitled to "minimum procedures appropriate under the circumstances and required by the Due Process clause to insure that the state-created right is not arbitrarily abrogated." Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Thus, where, as here, an inmate faces the revocation of good-time credits as punishment in a disciplinary hearing, prison officials must provide that inmate with certain procedural safeguards. Al-Shabazz, 338 S.C. at 370, 527 S.E.2d at 750. (1) These procedural safeguards include:

(1) that advance written notice of the charge be given to the inmate at least twenty-four hours before the hearing; (2) that factfinders must prepare a written statement of the evidence relied on and reasons for the disciplinary action; (3) that the inmate should be allowed to call witnesses and present documentary evidence, provided there is no undue hazard to institutional safety or correctional goals; (4) that counsel substitute (a fellow inmate or a prison employee) should be allowed to help illiterate inmates or in complex cases an inmate cannot handle alone; and (5) that the persons hearing the matter, who may be prison officials or employees, must be impartial.

Id. at 371, 527 S.E.2d at 751 (paraphrasing Wolff). Beyond these procedural requirements, the United States Supreme Court has held that the revocation of an inmate's good-time credits does not comport with Due Process unless "there [is] some evidence from which the conclusion of the [prison official] could be deduced." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). (2) Thus, if the Department affords the inmate a Wolff-type hearing and has at least some evidence in the record to support its decision, the Department's revocation of an inmate's good-time credits satisfies the requirements of due process.

In the disciplinary proceedings underlying the instant appeal, Appellant was not afforded all the process due him pursuant to Al-Shabazz. While the hearing conducted by the DHO did meet the basic procedural requirements of Wolff, the conclusions reached by the DHO are not sufficiently supported by the evidence in the record so as to satisfy the "some evidence" standard of Hill. The sole evidence relied upon by the DHO in finding Appellant guilty of the charge against him was the written incident report filed by Investigator Hood, which, in turn, was based almost entirely on information from unnamed confidential informants. While such hearsay evidence is not necessarily inadmissible in prison disciplinary hearings, the hearsay evidence produced in this case, standing alone, does not meet the "some evidence" standard required by due process. In Johnson v. State, 576 So. 2d 1289 (Ala. Crim. App. 1991), the Alabama Court of Criminal Appeals, addressing a prison disciplinary conviction supported only by an allegation of another inmate and the results of a polygraph test, reached a similar conclusion:

"We have held that, while hearsay testimony may be admissible in prison disciplinary hearings, it may not be sufficient by itself in all cases to support a finding of guilt." Taking into consideration all the instant circumstances, we find that the hearsay testimony was not sufficient to meet the "some" evidence standard. The record offers nothing to indicate the reliability of the accusation, and we find no worthwhile corroboration in the polygraph test. . . . Neither the hearsay accusation nor the results of the polygraph test have any probative value-separately or together.

Id. at 1290 (citations omitted). Such is the case here. The evidence presented at the disciplinary hearing was meager and speculative at best. The investigator's report without any other form of corroboration is tantamount to a mere allegation-which is not proof. (3) Because this report does not meet the "some evidence" standard set forth in Hill, Appellant's disciplinary conviction for attempting to obtain illegal drugs was made in violation of his due process rights and must be reversed.

IT IS THEREFORE ORDERED that Appellant's February 20, 2002 disciplinary conviction for violating DOC Disciplinary Code § 1.10 is REVERSED.

IT IS FURTHER ORDERED that the Department shall restore to Appellant all good-time credit taken from or lost by Appellant as a result of that conviction.



Administrative Law Judge

December 16, 2002

Columbia, South Carolina

1. However, this set of safeguards is necessarily a limited one. See Wolff, 418 U.S. at 560 ("[I]t is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society . . . to the very different situation presented by a disciplinary proceeding in a state prison.").

2. This review "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence," Hill, 472 U.S. at 455; rather, this standard only requires this tribunal to determine whether "there is any evidence in the record that could support the conclusion reached by the [prison official]." Id. at 455-56.

3. The DHO's own statements at the disciplinary hearing, as noted above, indicate the incompleteness of evidence mustered against Appellant. See Hr'g Tr. at 5. Other glaring omissions in the record include such basic facts as the type of "drugs" allegedly sought by Appellant. See Hr'g Tr. at 2, 5.

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