SC Administrative Law Court Decisions

I. STATEMENT OF CASE

This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Supreme Outspoken 7 Allah ("Allah"), an inmate incarcerated with the Department of Corrections ("Department"). On March 27, 2002, Allah was convicted of Sexual Misconduct, SCDC Disciplinary Code 2.09. As a result of his conviction, Allah lost 100 days of good-time credit. Allah filed a grievance with the Department on April 10, 2002, and received the Department's final decision on May 16, 2002. On June 10, 2002, Allah filed this appeal.

II. BACKGROUND

On March 20, 2002, Lt. Irons was conducting a Standing Count in Jasper A Wing of Allendale Correctional Institution ("Allendale") when she observed Allah masturbating. Afterwards, Lt. Irons completed an Incident Report recommending that Allah be charged with violating SCDC Disciplinary Code 2.9, Sexual Misconduct, and forwarded the Report to her supervisor. On March 22, 2002, Allah received written notice of the charge and was given the opportunity to request counsel substitute and that his accuser be present during the hearing. On March 26, 2002, Counsel Substitute B.J. Thomas met with Allah to discuss the charge. However, Allah informed Ms. Thomas that he wanted a different counsel substitute. The following day, a different counsel substitute, a Ms. Crum, attempted to meet with Allah to discuss the charge and to bring him to the hearing. At that time, Ms. Crum observed Allah masturbating. Allah was then returned to his cell and the hearing was convened without him on March 27, 2002, by Disciplinary Hearing Officer ("DHO") De Loach. Ms. Thomas appeared on Allah's behalf. Lt. Irons was present as well. In addition, Cpl. Behlin, who had accompanied Ms. Crum to get Allah, testified that Allah had exposed himself and was masturbating in the holding cell just prior to the hearing. Lt. Irons testified that the Incident Report was true and accurate affirmed that Allah was aware of her presence when she observed Allah masturbating on March 20, 2002.

At the conclusion of the hearing, the DHO found Allah guilty of his ninth offense of sexual misconduct and sanctioned Allah with the loss of 100 days of good time. After the hearing, the DHO completed a Disciplinary Report and Hearing Record ("Hearing Record"), in which she noted her reliance on Lt. Irons' report and testimony. In addition, the DHO noted that Allah had not been allowed to attend his hearing due to his behavior. Finally, the DHO indicated that Allah had lost 100 days of good time.

III. JURISDICTION

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.

Allah lost 100 days of good time after he was convicted of a prison disciplinary infraction. As such, I find that this tribunal has jurisdiction to hear Allah's appeal.

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. Id. 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 30, 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, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).

As in all cases subject to appellate review by the Division, the standard of review in these inmate grievance cases is limited to the record presented. An Administrative Law Judge may not substitute his judgment for that of an agency unless the agency's determination is affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1999); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756; Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Moreover, to afford "meaningful judicial review," the Administrative Law Judge must "adequately explain" his decision by "documenting the findings of fact" and basing his decision on "reliable, probative, and substantial evidence on the whole record." Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at 756.

Prior to the hearing, the Department, through the DHO and other officials, prevented Allah from appearing at his hearing because Ms. Crum observed him masturbating in the holding cell. However, in his Brief, Allah alleges that a 2.9 charge arising out of the incident was later overturned. The Department does not refute Allah's assertions.

Nothing in Wolff v. McDonnell, 418 U.S. 539 (1974), expressly states that an inmate has a right to be present during a disciplinary hearing. However, as a part of the inmate's due process right to call witnesses and present evidence, courts have generally held that an inmate has a right to be present at his own disciplinary hearing but that right is conditioned on "maintaining institutional safety and other correctional goals." See Moody v. Miller, 864 F.2d 1178, 1180 (5th Cir.1989) ("[T]he question presented in this case is not whether a prisoner must be given the opportunity to attend the hearing, but rather whether a prisoner's right to attend the hearing is "absolute" in the sense that the hearing cannot under any circumstances be conducted without him. We hold that a prisoner does not have such a right."); Battle v. Barton, 970 F.2d 779, 782 (11th Cir. 1992) ("Notwithstanding the fact that an inmate has a due process right to be present at his own prison disciplinary hearing, the Supreme Court has made clear that the rights accorded inmates at disciplinary hearings are not absolute, and are limited by 'the competing concerns of maintaining institutional safety and other correctional goals.' Smith v. Massachusetts Dept. of Corrections, 936 F.2d 1390, 1399 (1st Cir.1991)."); Ponte v. Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 2196, 85

L.Ed.2d 553 (1985) (due process is met "so long as the reasons [for depriving an inmate of his rights] are logically related to 'institutional safety or correctional goals'....".). Thus, the issue is whether "maintaining institutional safety or other correctional goals" justified excluding Allah from the disciplinary hearing. The proof of whether Allah's exclusion meets a proper institutional goal is on the Department. See Grandison v. Cuyler, 774 F.2d 598, 604 (3d Cir.1985) ("the burden of persuasion as to the existence and sufficiency of such institutional concerns... is borne by the prison officials, not by the prisoners.").

In this case, it appears that the Department has failed to meet its burden. Overturning Allah's March 27 sexual misconduct charge resulted in the removal of a potentially legitimate basis for excluding Allah from the hearing stemming from the March 20 sexual misconduct charge. While this tribunal recognizes that it is possible for an inmate to be disruptive enough to warrant his removal from a hearing but not so disruptive as to result in a disciplinary charge, the Department in this instance has provided no other justification for Allah's exclusion. Although other legitimate reasons may exist for the Allah's exclusion from this proceeding, they do not appear in the Record and were not argued in the Department's brief. Consequently,

IT IS THEREFORE ORDERED, that Supreme Outspoken 7 Allah's conviction of violating SCDC Disciplinary Code 2.09, Sexual Misconduct, is vacated and this matter is remanded for a new hearing.

AND IT IS SO ORDERED.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

September 6, 2002

Columbia, South Carolina