SC Administrative Law Court Decisions

I. Introduction

John H. Backus, #283919 (Backus) filed a Step 1 Grievance arguing he was subjected to offensive behavior and unlawful conduct and that the South Carolina Department of Corrections (DOC) has not fully processed the grievance. Backus seeks to compel DOC to process his grievance.

II. Analysis

The request seeks a writ of mandamus compelling DOC to act. A writ of mandamus can be used to enforce an established right and to enforce a corresponding imperative duty created or imposed by law. Porter v. Jedziniak, 334 S.C. 16, 18, 512 S.E.2d 497, 498 (1999). At the outset, Backus must show: (1) DOC’s duty to perform the act; (2) the ministerial nature of the act; (3) a specific legal right for which discharge of the duty is necessary; and (4) a lack of any other legal remedy. Id.

DOC has the duty to process the grievance filed and the inmate has a legal right to have DOC discharge its duty. Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). And further, Backus has no other legal remedy since all non-collateral disciplinary matters must be pursued through DOC via the Administrative Procedures Act. Id.

Finally, it is also true that the action requested is a ministerial duty since Backus does not seek to direct what decision DOC is to reach but only seeks to compel the appropriate official to reach some decision. See Sunrise Retirement Villa v. Dear 68 Cal.Rptr.2d 416, Cal.App. 3 Dist. (1997) (“If the administrative agency is empowered to decide the factual issue in the first instance and it erroneously fails or refuses to do so, either administrative or traditional mandate is available to compel the agency to hold a hearing.”); United States Steel Corp. v. Papadakos, 437 A.2d 1044 (1981) (where the court explains that a writ of mandamus can be issued directing a body to exercise its discretion in some fashion so long as it does not require that the body exercise such discretion in a particular manner). However, before such a drastic remedy as mandamus can be imposed (see City of Rock Hill v. Thompson, 349 S.C. 197, 563 S.E.2d 101 (2002) (“Mandamus is the highest judicial writ.”), the circumstances must warrant its use. Under the facts of this case, mandamus is not warranted.

The thrust of the complaint addresses timeliness. Such a charge will not result in a writ of mandamus so long as the legislative and judicial “intent” to provide a right of review of a DOC action is not being subverted by such a delay. See e.g., In re American Federation of Government Employees, AFL-CIO, 790 F.2d 116 (D.C.Cir. 1986) (“Our function in such cases is to assure the vitality of the congressional instruction that agencies conclude matters presented to them "within a reasonable time." 5 U.S.C. § 555(b); see id. § 706(1) (reviewing court's obligation to "compel agency action unlawfully withheld or unreasonably delayed")).

Here, the evidence presented does not establish that the right of review is being absolutely denied nor does it establish that the intent for a review of DOC decisions has been subverted. Rather, at this juncture, the right of review has been delayed by roughly a year awaiting a decision on the entirely of the Step 1 grievance. Such is not a delay that is so long as to amount to a denial of a review. However, DOC is cautioned that should the length of the delay become so pervasive and so extensive as to amount to a denial of review, mandamus may be appropriate.

III. Order

The Motion is DENIED.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 26, 2003

Columbia, South Carolina