ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Thomas Taylor, an
inmate incarcerated with the Department of Corrections ("Department") since 2001. On March 13, 2002, Taylor was
convicted of Inciting/Creating a Disturbance, SCDC Disciplinary Code 2.12, for an incident occurring on February 22,
2002. As a result of the conviction, Taylor lost 40 days' "good-time" credit. Taylor filed a grievance with the Department
on March 13, 2002, and received the Department's final decision on April 29, 2002. On May 7, 2002, Taylor filed this
appeal with the Division.
II. FACTUAL BACKGROUND
On February 22, 2002, several inmates were acting out in the Security Management Unit ("SMU") by breaking glass,
shouting obscenities at the guards, and damaging the sprinkler system in their cells. In response, some type of chemical
munitions ("pepper spray") was dispensed in SMU. Three inmates known by the Department to have respiratory problems
were removed from SMU. Taylor, who also suffers from respiratory problems, including bronchitis and asthma, was not
removed from SMU. As it became increasingly difficult for him to breathe, Taylor began banging on the door to attempt to
attract the attention of the guards. Taylor received no response from the guards. To get the attention of the guards, Taylor
poured water from his toilet on the floor near the door of his cell, causing the water to run out into the hallway.
Immediately, several guards came to Taylor's cell and dispensed pepper spray in the direction of Taylor. Taylor was then
removed from his cell and taken to the showers, where he remained for eight hours. Afterwards, Taylor was returned to his
cell, naked, where he was forced to lie on the concrete floor because his mattress, along with all of his other belongings,
had been removed from his cell.
After the incident, Capt. Sainyo completed a report ("Incident Report") in which he rather vaguely described the collective
actions of the inmates involved in the incident and recommended that the inmates be charged with 2.12. In Capt. Sainyo's
Incident Report, Norris was the only inmate specifically linked to any disruptive behavior. Taylor received written
notification of the charge on February 28, 2002, at which time he requested substitute counsel and that his accuser be
present. On March 13, 2002, Taylor appeared before a Disciplinary Hearing Officer ("DHO"), who accepted Taylor's "not
guilty" plea. The DHO then summarized Capt. Sainyo's Incident Report. Taylor then gave a statement, in which he
averred that he had bronchitis and was choking because of the gas, and only poured the water on the floor to solicit help
from the guards, who had ignored his pleas. In addition, Taylor denied participating in damaging the sprinkler system.
Capt. Sainyo then testified that Taylor flooded his cell and the whole west wing . Capt. Sainyo admitted that Taylor did
not resist when the extraction team was sent in after him, as Capt. Sainyo's Incident Report stated. In addition, Capt.
Sainyo testified that the three inmates known to have bronchitis were removed from SMU because of the gas, but that
Taylor was not removed. Capt. Sainyo then testified that Taylor was taken to the showers and stripped out. At the
conclusion of the hearing, the DHO informed Taylor that he had been found guilty of Inciting/Creating a Disturbance and
sanctioned him with the loss of 40 days' good time. After exhausting his remedies through the inmate grievance process,
Taylor filed this appeal.
"Inciting/Creating a Disturbance" is defined, in pertinent part, as:
any act or activity which results in a disruption of institutional operations or a breach of institution security. Any inmate
who purposefully incites or urges a group of two or more other inmates to engage in a current or impending disturbance of
institutional operations or gives commands, directions, instructions, or signals to a group of two or more persons to cause,
continue, or enlarge a disturbance; or acts individually in such a way as to cause a disruption of institutional operations... .
A disturbance as used herein is an assemblage of three or more persons which creates grave danger or damage or injury to
property or persons and/or substantially disrupts the normal functioning of the institution.
Department Policy OP-22.14, Appendix A, 3(b)(12).
III. STANDARD OF REVIEW
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, Taylor lost 40 days of good time after he was convicted of a prison disciplinary infraction. As such, I find
that this tribunal has jurisdiction to hear Taylor's appeal.
In its appellate capacity, the Division may not substitute its judgment for that of a state agency as to the weight of the
evidence on questions of fact. See Long Cove Home Owners' Assoc. v. Beaufort Cnty. Tax Equalization Bd., 327 S.C.
135, 139, 488 S.E.2d 857, 860 (1997); Marietta Garage, Inc. v. South Carolina Dept. of Pub. Safety, 337 S.C. 133, 522
S.E.2d 605, 607 (Ct. App. 1999). However, the Division may reverse or modify a decision of the Department that is clearly
erroneous in light of the substantial evidence in the record. See Long Cove, 327 S.C. at 139, 488 S.E.2d at 860.
"Substantial evidence is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is
evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the
administrative agency reached or must have reached in order to justify its action." Lark v. Bi-Lo, Inc., 276 S.C. 130, 276
S.E.2d 304, 306 (1981); see Al-Shabazz, 338 S.C. 354, 380, 527 S.E.2d at 755-56.
IV. DISCUSSION
The Fourteenth Amendment's guarantee of procedural due process applies only to the deprivation of a life, liberty, or
property interest. Board of Regents of State College v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705 (1972). 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. 338 S.C. at 370, 527 S.E.2d at 750. 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 340, 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,
338 S.C. at 371, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
In this case, it unnecessary to determine whether the Department provided Taylor all process he was due because there is no
substantial evidence in the Record that Taylor "purposefully incite[d] or urge[d] a group of two or more other inmates to
engage in a current or impending disturbance...or [gave] commands, directions, instructions, or signals to a group ...to
cause, continue, or enlarge a disturbance." Capt. Sainyo Report merely listed Taylor as one of seven inmates who engaged
in certain behavior. In fact, on cross-examination, Capt. Sainyo admitted that Taylor did not damage the sprinklers, resist
extraction, or become hostile and combative. In addition, there is no substantial evidence that Taylor had any connection
with the other inmates charged that day. In any case, Taylor's pouring of water on the floor from his toilet to attract the
attention of the guards so that he could get away from the gas does not amount to "an assemblage of three or more persons
which creates grave danger or damage or injury to property or persons and/or substantially disrupts the normal functioning
of the institution."
V. ORDER
IT IS THEREFORE ORDERED THAT the Final Decision of the Department is REVERSED;
IT IS FURTHER ORDERED THAT the Department credit Taylor with the 40 days' worth of "good-time" credits lost
as a result of his conviction;
IT IS FURTHER ORDERED THAT the Department credit Taylor with any good-time credit he failed to earn as a result
of his conviction.
AND IT IS SO ORDERED.
_________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
September 12 , 2002
Columbia, South Carolina |
