ORDERS:
ORDER REINSTATING CASE AND FINAL ORDER AND DECISION
INTRODUCTION
This matter is before the Administrative Law Judge Division (“ALJD”) pursuant to the appeal
of Maurice Morant, an inmate incarcerated with the Department of Corrections (“Department”). On
January 29, 2003, Morant was convicted of violating SCDC Disciplinary Code 1.03, Striking an
Employee with or without a Weapon. As a result of his conviction, Morant lost 90 days of good time
credit. Morant subsequently filed a grievance with the Department. He received a final agency
decision on March 28, 2003. On April 25, 2003, Morant filed this appeal.
On July 21, 2003, this tribunal issued an Order dismissing this matter for Morant’s failure to
file an Appellant’s Brief. However, Morant wrote this tribunal afterwards, indicating that he had
timely mailed his Appellant’s Brief to this tribunal in the same envelope as an Appellant’s Brief that
was filed by him in another matter. After reviewing the records in the other matter, this tribunal
discovered that Morant’s Appellant’s Brief in this case was in fact attached to the end of Morant’s
Appellant’s Brief in the other matter and was therefore inadvertently filed with the Brief in the other
matter. Thus, Morant did in fact timely file his Appellant’s Brief in this case on July 7, 2003.
Therefore, this tribunal hereby reinstates Morant’s appeal in this case.
After a review of the record and the arguments presented in the Department’s Brief and in
Morant’s Appellant’s Brief, the decision of the Department is affirmed.
FACTS
On January 20, 2003, at approximately 3:30 p.m., Captain Miller was in Operations when he
observed Corporal Levy and another officer escorting Morant to the holding cell. Captain Miller
heard Morant yelling and cursing, then he observed Morant stepping toward Corporal Levy in what
he perceived was a threatening manner. Captain Miller placed his hands on Morant’s chest and held
him against the wall and asked what his problem was. Morant then hit Captain Miller in the left eye
with his right fist. At that time, Corporal Levy administered MK-4 pepper spray to Morant’s face,
inadvertently spraying Captain Miller in the face as well. Captain Miller then grabbed Morant’s
shoulder and placed him on the floor. Morant continued to resist, and Captain Miller directed
Corporal Levy to administer another burst of MK-4 pepper spray. Morant was then restrained by
Captain Miller, Corporal Levy, and two other officers. Morant was charged with 1.03, Striking an
Employee with or without a Weapon, for hitting Captain Miller.
A hearing was held on the charges on January 29, 2003. During the hearing, Morant testified
that he did not hit Captain Miller in the eye at all. He stated that Corporal Levy sprayed Captain
Miller in the eye with the MK-4 pepper spray, and he has no idea why Captain Miller thinks he hit
him in the eye. He stated that he recalled Captain Miller stating to Corporal Levy during the incident
that Corporal Levy had sprayed him in the eye, when he was supposed to be spraying Morant.
Captain Miller testified that Morant was “very aggravated” and “out of control.” Captain
Miller testified that Morant hit him in his left eye, causing injury for which he later sought medical
treatment. Captain Miller stated that Corporal Levy administered the MK-4 pepper spray to Morant
after Morant hit Captain Miller, and that the MK-4 pepper spray got in Captain Miller’s face as well
as in Morant’s face. The DHO and counsel substitute questioned Captain Miller regarding the
incident. The DHO recessed to consider the evidence, then found Morant guilty of the charge and
imposed a sanction of the loss of 90 days of good time credit.
ISSUES ON APPEAL
In his Appellant’s Brief, Morant lists the following issues on appeal:
1.Did the Respondent deny the Appellant due process by upholding the
conviction and sanction solely on the basis of the DHO’s written disposition,
which merely adopted the officer’s report?
2.Did Captain Miller admit in oral testimony that he had been sprayed in the eye
with mace by another officer?
3.Did Captain Miller present false evidence in the Incident Report and in oral
testimony?
4.Was the Appellant’s disciplinary hearing presided over by a neutral and detached hearing
body?
JURISDICTION
Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which
Morant 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 (2000); McNeil v. S.C. Dep’t of Corrections,
00-ALJ-04-00336-AP (September 5, 2001).
SCOPE OF REVIEW
In this review, the Administrative Law Judge (“ALJ”) acts “in an appellate capacity” and is
“restricted to reviewing the decision below.” Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754. When
acting in an appellate capacity, the ALJ must apply the criteria of S.C. Code Ann. § 1-23-380(A)(6)
(Supp. 2002). See, e.g., S.C. Code Ann. § 1-23-380(B) (Supp. 2002) (where an ALJ is directed to
conduct a review “in the same manner prescribed in [§ 1-23-380](A).”).
S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2002) establishes the following:
The court may reverse or modify the decision [of the agency] 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.
S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2002).
DISCUSSION
I.ISSUE NOT RAISED BELOW
Morant’s fourth issue on appeal, whether the disciplinary hearing was presided over by a
neutral and detached hearing body, was not raised, according to the Record, in Morant’s Step 1 or
his Step 2 Grievance. This issue is raised for the first time in Morant’s Appellant’s Brief. This
tribunal will not consider an issue on appeal that was not raised to and ruled upon by the
administrative agency below. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d
543, 546 (2000) (“It is well-settled that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial court to be preserved for appellate review”); Price v.
Pickens County, 308 S.C. 64, 67-68, 416 S.E.2d 666, 668 (Ct. App. 1992) (“This court will not
consider issues on appeal that were neither raised before nor ruled upon by the court below.”).
II. DUE PROCESS ARGUMENT
Morant’s first issue on appeal, while presenting a specific question regarding the DHO’s
adoption of the officer’s report which is addressed in more detail below, also raises a general concern
regarding whether or not his due process rights were violated regarding his hearing and conviction.
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,” Morrissey v. Brewer, 408 U.S. 471, 481 (1972),
certain elements must be satisfied in order for procedural due process requirements to be met. Those
elements include the following:
(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.
Al-Shabazz, 338 S.C. at 371, 527 S.E.2d at 751 (citing Wolff v. McDonnell, 418 U.S. 539, 563-72
(1974)).
In this case, Morant received adequate advance notice of the charges, adequate opportunity
for a hearing in which he could present witnesses and documentary evidence, a counsel substitute,
and an impartial hearing officer who prepared a written statement of all the evidence presented and
the reasons for his decision. Thus, Morant received all of the due process to which he was entitled.
III.SUBSTANTIAL EVIDENCE ARGUMENT
The crux of Morant’s first, second, and third issues on appeal is whether or not there was
substantial, credible evidence in the record to support a conviction of the charge against him.
The ALJD, as a reviewing tribunal, cannot substitute its judgment for that of the DOC as to
the weight of the evidence on questions of fact. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2002).
Thus, once the facts are established by the DHO, the ALJD will not re-weigh the evidence in an
attempt to come to an independent conclusion on the factual dispute. Rather, the ALJD will rely
upon the DHO’s factual determinations and will not overturn those determinations unless they 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. 2002); Adams v. Texfi Indus., 341 S.C. 401, 404, 535
S.E.2d 124, 125 (2000). “‘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, 276 S.C. 130, 135, 276 S.E.2d 304, 306
(1981). “Substantial evidence is something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.” Palmetto Alliance, Inc. v. S.C. Pub.
Serv. Comm’n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).
South Carolina courts have traditionally adhered to a “hands off” approach regarding judicial
involvement in internal prison disciplinary procedures. Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779
(1980). In Al-Shabazz, the South Carolina Supreme Court stated that, since prison officials are in
the best position to decide inmate disciplinary matters, the courts and the ALJD shall adhere to this
traditional “hands off” doctrine “when reviewing the outcome of any major or minor disciplinary
hearing in which an inmate has a protected liberty interest due to the potential loss of sentence-related
credits.” Al-Shabazz, 338 S.C. at 382, 527 S.E.2d at 757.
In his first issue on appeal, Morant argues that the Department erred in upholding the
conviction based solely on the DHO’s written disposition, which merely adopted the officer’s report.
The DHO’s written disposition lists the evidence he relied on in reaching his finding of Morant’s guilt,
which was the report of the officer involved in the incident. The DHO’s written disposition
specifically states that he found the report to be true and correct. A review of the record reveals that
the DHO considered all of the evidence before him, which consisted not only of the officer’s report,
but also of the testimony of the officer and the testimony of Morant. The DHO questioned the officer
thoroughly as to the events surrounding the charged offense. Although Morant testified that he did
not hit Captain Miller in the eye, Captain Miller testified that Morant did hit him in the eye.
Considering all of the testimony and the report, there was sufficient evidence in the record to allow
the Department to reach the conclusion that Morant hit Captain Miller in the eye. The fact that
reasonable minds could differ as to the conclusions to be drawn from the evidence does not prevent
the Department’s conclusion from being supported by substantial evidence in the record. Lee v.
Harborside Café, 350 S.C. 74, 564 S.E.2d 354 (Ct. App. 2002); Jennings v. Chambers Dev. Co., 335
S.C. 249, 516 S.E.2d 453 (Ct. App. 1999). Thus, the DOC’s decision was not erroneous in light of
the evidence presented at the hearing.
In his second issue on appeal, Morant questions whether or not Captain Miller admitted in
oral testimony that he had been sprayed in the eye with mace by another officer. According to
Morant’s testimony, Morant claims that did not hit Captain Miller in the eye; rather, another officer
sprayed MK-4 pepper spray in Captain Miller’s eye. During the hearing, Captain Miller did in fact
admit that the other officer sprayed him in the eye when she was trying to spray Morant with the MK-4 pepper spray. However, Captain Miller testified that the officer only sprayed Morant and him with
the MK-4 pepper spray after Morant hit Captain Miller in the eye, in an effort to subdue Morant.
Thus, the fact that Captain Miller admitted he had been sprayed in the eye by the other officer does
not contradict Captain Miller’s testimony that Morant hit him in the eye.
In his third issue on appeal, Morant contends that the Captain Miller presented false evidence
in the Incident Report and in his testimony at the disciplinary hearing. This issue goes to the
credibility of Captain Miller as a witness and to the credibility of his testimony. It is generally
recognized that the trier of fact, who has the opportunity to observe the witnesses and listen to their
testimony in person, is in the best position to determine issues of witness credibility. Dixon v. Dixon,
336 S.C. 260, 263, 519 S.E.2d 357, 358 (Ct. App. 1999) (“Because the appellate court lacks the
opportunity for direct observation of witnesses, it should accord great deference to trial court findings
where matters of credibility are involved.”). The DHO observed and listened to Captain Miller as he
testified at the disciplinary hearing, and he questioned him himself regarding the underlying events.
He then relied on Captain Miller’s testimony in finding Morant guilty of the charge against him. The
DHO obviously believed that Captain Miller was a credible witness and that he was testifying
truthfully. This tribunal will not disturb the DHO’s finding in this regard.
CONCLUSION
For the foregoing reasons, the guilty verdict entered by the Department against Appellant
Maurice Morant, #285174, is AFFIRMED.
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
August 1, 2003
Columbia, South Carolina |
