ORDERS:
Grievance No. PCI-0295-00
FINAL ORDER AND DECISION
I. Introduction
Kenneth Malone (Malone) brings this appeal challenging a decision by the South Carolina Department of Corrections
(DOC) which convicted Malone of engaging in inappropriate sexual acts in public. Jurisdiction is invoked in the instant
case since this matter is a disciplinary hearing in which Malone 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 AFFIRMED.
II. 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 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. 2001). See S.C. Code Ann. § 1-23-380(B) (Supp. 2001) (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, Malone argues that the DOC decision is made upon unlawful procedure since the hearing officer was not an
impartial adjudicator and since the DOC decision is clearly erroneous in view of the reliable, probative and substantial
evidence on the whole record. (1)
III. Analysis
A. Unlawful Procedure
Malone argues procedural due process was not afforded. Due process for an inmate subjected to the loss of good time
credits requires the following procedures:
(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. Wolff, 418 U.S. 563-72, 94 S.Ct. 2978-82, 41 L.Ed.2d
at 954-60.
Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742, 751 (2000)
In the instant case Malone argues the hearing officer was not impartial. Certainly, an impartial hearing board is required.
Wolff, 418 U.S. at 539, 572 n.20. However, the use of prison officials to hold inmate hearings does not present an inherent
showing of a lack of an impartial hearing and does not create an inherent violation of due process. Allen v. Cuomo, 100
F.3d 253, 259 (2d Cir. 1996) (no due process violation when prison officials serve as impartial decision-makers at
disciplinary hearings). Rather, the presumption is that the officer will act in a neutral and impartial manner.
A showing of a violation of due process requires identifying specific acts of lack of neutrality such as the hearing officer
being substantially involved with the investigation. See Merritt v. De Los Santos, 721 F.2d 598, 601 (7th Cir. 1983) (due
process violated only if officer substantially involved with investigation of charges against inmate, but not violated if
officer's involvement at hearing is only tangential); see, e.g., Diercks v. Durham, 959 F.2d 710, 713 (8th Cir. 1992) (due
process violation when complainant was member of board hearing the case). But see, e.g., Pedraza v. Meyer, 919 F.2d 317,
320 (5th Cir. 1990) (no due process violation when disciplinary board official's only involvement in filing of complaint
was receipt of incident report and intercepted letters); Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) (no due process
violation when investigating officer signs disciplinary report as shift supervisor); Ivy v. Moore, 31 F.3d 634, 635 (8th Cir.
1994) (no due process violation when chairperson of hearing personally investigated defense because did not threaten
impartial decision-making); Mitchell v. Maynard, 80 F.3d 1433, 1446 (10th Cir. 1996) (no due process violation because
officer did not witness inmate's participation in riot, was not present during riot, and did not prepare offense report).
Here, no evidence demonstrates that the hearing officer exhibited any specific acts of a lack of neutrality. No evidence
establishes that the hearing officer was involved with the investigation and no evidence establishes that the hearing officer
had formed a predetermined view of the case. Rather, the record shows the officer considered the positions presented and
made a determination based on the preponderance of the evidence. Thus, no showing of bias is present.
B. Substantial Evidence
Malone argues the DOC decision must be reversed since the decision is not supported by the evidence. I cannot agree.
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. 2001).
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 Officer's 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. 2001). 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). Accordingly, if such evidence is present, substantial evidence is
present and the factual determinations will not be overturned.
Here, substantial evidence supports the factual determinations made below. The hearing officer heard testimony of an eye
witness who observed Malone's inappropriate public sexual act. While other testimony sought to show that the eye witness
was mistaken, the hearing officer weighed all of the circumstances of the event and determined the eye witness was correct
in her observation. These determinations would allow reasonable minds to reach the conclusion that Malone committed the
act here in dispute. Thus, substantial evidence supports the DOC decision.
IV. Conclusion
The guilty verdict entered by DOC against Kenneth Malone is AFFIRMED.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: January 22, 2003
Columbia, South Carolina
1. Malone also argues that S.C. Code Ann. § 24-13-210(d) is both "unjust" and unconstitutional due to being in violation of the equal protection
provisions of the constitution. An ALJ has no authority to find a statute unenforceable due to it being either "unjust" or unconstitutional. Ward v.
State, 343 S.C. 14, 538 S.E.2d 245 (2000). |