SC Administrative Law Court Decisions

Rodney Brown, #232036 (Brown) brings this appeal challenging a decision by the South Carolina Department of Corrections (DOC) which convicted Brown of participation in a security threat group. Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Brown 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.

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, Brown argues that the DOC decision is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

In examining a DOC determination for the presence of evidentiary support, an ALJ must review the matter in an appellate capacity. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742. In that capacity, an ALJ reviewing factual disputes between DOC and the inmate "will not substitute [the ALJ's] judgment for that of the [DOC Hearing Officer] as to the weight of the evidence on questions of fact." S.C.Code Ann. § 1-23-380(A)(6) (Supp. 2000).

Thus, once the facts are established by the Hearing Officer, the ALJ will not re-weigh the evidence in an attempt to come to an independent conclusion on the factual dispute. Rather, the ALJ will rely upon the Hearing Officers factual determinations unless those determinations are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. S.C. Code Ann. § 1-23- 380(A)(6)(e) (Supp. 2000). In determining if substantial evidence supports the Hearing Officer's factual determinations, the ALJ does not look for "a mere scintilla of evidence nor evidence viewed blindly from one side, but [rather looks for ] evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached." Palmetto Alliance, Inc. v. South Carolina Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).

From the evidence presented, reasonable minds could not have reached the conclusion that Brown committed the act for which he was convicted. To obtain the conviction, DOC was required to establish that Brown participated in a group designated by the Agency Director as being a Security Threat Group. In particular, Brown was found to have participated in the "5%'er organization" and that the Agency Director had previously designated that organization as a security threat group.

Since the charge specifically requires participation, evidence must exist upon which reasonable minds could have concluded that Brown participated in the designated organization. "Participate" means "to take part in something" The American Heritage Dictionary of the English Language, Fourth Edition 2000. Here, no evidence shows participation by Brown in the "5%'er organization."

Rather, at best, the evidence shows that Brown placed on paper his hand written notes expounding on his view of various topics which topics are also addressed by "5 %'ers." However, the evidence does not show any participation in the "5 %'ers organization" The charging officer explained that he had no knowledge of the material being used to teach other inmates and that he had not found any of the material in the hands of other inmates. Further, nothing in the record shows that Brown had any contact with the organization, with officials of the organization, or with members of the organization. Indeed, nothing shows that Brown even attempted to make such contacts. Participation, an essential element of the charge against Brown, requires more than the mere existence of undistributed written expressions of a single inmate. Thus, since no evidence of participation was shown, DOC's conviction is "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." S.C. Code Ann. § 1-23- 380(A)(6)(e) (Supp. 2000).

The guilty verdict entered by DOC against Rodney Brown, #232036 is REVERSED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: October 17, 2002

Columbia, South Carolina