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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Steven Kitts #228804 vs. DOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Steven Kitts #228804

South Carolina Department of Corrections
 
DOCKET NUMBER:
03-ALJ-04-00029-AP

APPEARANCES:
n/a
 

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. Footnote 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). Footnote 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


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