ORDERS:
ORDER
GRIEVANCE NO. ACI 1139-02
STATEMENT OF THE CASE
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 Steven Kitts appeals the decision of the South Carolina Department of Corrections
(DOC or Department) to revoke thirty days of his “good-time” credit, to impose thirty days of telephone,
canteen, and cell restrictions upon him, and to reprimand him as punishment for violating DOC
Disciplinary Code § 1.13. 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.
BACKGROUND
On October 9, 2002, DOC Corrections Officers T. Roberts and Timothy Smith, along with
Investigator Richard Johnson, conducted a “shakedown” of Appellant’s cell. During the search, the
officers discovered materials in Appellant’s possession containing depictions of minors in the nude and
in swimwear. As a result of this discovery, Appellant was charged with violating DOC Disciplinary Code
§ 1.13, Any Act Defined as a Felony by the Laws of the State of South Carolina or the United States and
not Otherwise Defined in these Rules, for possessing child pornography in violation of S.C. Code Ann.
16-15-410 (Supp. 2001).
A hearing of this charge was held before a DOC Disciplinary Hearing Officer (DHO) on October
21, 2002. At the close of the hearing, the DHO found Appellant guilty of the charged violation and
revoked thirty days of his good-time credit, imposed thirty days of telephone, canteen, and cell
restrictions upon him, and reprimanded him as punishment for the offense. Appellant appealed his
disciplinary conviction to the Department and then to this tribunal. On appeal, Appellant contends,
among other things, that the evidence in the record is insufficient to support a finding that he violated
S.C. Code Ann. § 16-15-410, and is, therefore, insufficient to support his disciplinary conviction under
DOC Disciplinary Code § 1.13.
ANALYSIS
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
thirty 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.
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).
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 to satisfy the “some evidence” standard of Hill. The DHO found Appellant
guilty of violating the catch-all provision of DOC Disciplinary Code § 1.13 by possessing material
prohibited by the felony provisions of S.C. Code Ann. § 16-15-410. Section 16-15-410 states that “[a]n
individual commits the offense of third degree sexual exploitation of a minor if, knowing the character
or content of the material, he possesses material that contains a visual representation of a minor engaging
in sexual activity.” S.C. Code Ann. § 16-15-410(A) (Supp. 2001) (emphasis added). In the case at hand,
while it is clear that the materials possessed by Appellant contained depictions of minors in the nude and
in swimwear, and while it appears that Appellant possessed these materials only for the satisfaction of
his prurient, not artistic, interests, there is no suggestion in the record that any of the materials contained
a visual representation of a minor engaged in sexual activity as defined by S.C. Code Ann. § 16-15-375(5)
(2003), which is applicable to Section 16-15-410 for definitional purposes. Cf., e.g., State v. Huckins,
836 P.2d 230, 233-34 (Wash. Ct. App. 1992) (finding error where prosecutor’s closing argument
suggested that any depiction of a nude minor violated a Washington child pornography statute that, in
fact, only prohibited the possession of depictions of minors engaged in “sexually explicit conduct”). In
short, the Department failed to either allege or prove that Appellant violated a critical element of the
felony offense it charged Appellant with committing. Accordingly, as there is insufficient evidence in
the record to support a finding that Appellant violated S.C. Code Ann. 16-15-410, Appellant’s
disciplinary conviction under DOC Disciplinary Code § 1.13 must be reversed.
In conclusion, the Department did not provide Appellant with the due process required by the
Fourteenth Amendment before revoking his sentence-related credits as punishment in a disciplinary
proceeding. Therefore,
IT IS HEREBY ORDERED that Appellant’s October 21, 2002 disciplinary conviction for
violating DOC Disciplinary Code § 1.13 is REVERSED.
IT IS FURTHER ORDERED that the Department must restore to Appellant all good-time credit
taken from or lost by Appellant as a result of that disciplinary conviction.
AND IT IS SO ORDERED.
JOHN D. GEATHERS
Administrative Law Judge
August 5, 2003
Columbia, South Carolina |