ORDERS:
FINAL ORDER AND DECISION
INTRODUCTIONThis matter is before the Administrative Law Judge Division (“ALJD”) pursuant to the appeal
of Herbert McFadden, an inmate incarcerated with the Department of Corrections (“DOC”). On
August 19, 2003, McFadden was convicted of violating SCDC Disciplinary Code 2.12,
Inciting/Creating a Disturbance. As a result of his conviction, McFadden lost 90 days of good time
credit. McFadden filed a grievance with the DOC and received a final agency decision on November
7, 2003. On November 19, 2003, McFadden filed this appeal. After a review of the record and the
arguments, the decision of the DOC is affirmed.
FACTS
On August 8, 2003, at approximately 12:25 p.m., Captain Green ordered all inmates of A and
B wing, Waxhaw Unit to return to their cells due to a stabbing incident that needed to be investigated
within the unit. The majority of the inmates of A wing refused to return to their cells. A special
organized team was developed to enter the Waxhaw A-wing unit so that the inmates would return
to their cells and come within compliance. Several inmates resisted and were restrained due to their
behavior, including McFadden.
McFadden was charged with violation of 2.12, Inciting/Creating a Disturbance. He received
a copy of the charge on August 12, 2003. At that time he requested counsel substituted. A hearing
commenced on the charge on August 19, 2003. McFadden was present at the hearing along with
counsel substitute.
McFadden stated during the hearing that he was only outside his cell on August 8, 2003
because he was an IRC representative of the Waxhaw A-wing unit, and he was trying to talk to the
officer pertaining to the situation, to help maintain things. While he was talking to an officer,
McFadden said, his cell was locked. McFadden said that he told the officer his room door was
locked, and the officer told him to stand by his room door and another officer would let him in.
However, the other officer told McFadden he was under orders not to open any more doors, and
McFadden was thus not able to return to his room despite his attempts to do so.
The charging officer, Officer Rogers, testified at the hearing that McFadden did not attempt
to help with the situation, that rather he was doing things to escalate the situation even more, such
as asking why the inmates had to go back into the cells. Officer Rogers testified that McFadden was
one of the inmates the officers had to restrain.
The hearing officer, after hearing the evidence, found McFadden guilty of the charge brought
against him and sanctioned him with a 90-day loss of good time. This appeal followed.
ISSUES ON APPEAL
(1)Was McFadden afforded due process during the adjudication of this internal
disciplinary matter?
(2)Was the final decision supported by substantial evidence in the record?
JURISDICTION
Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which
McFadden 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); Sullivan v. S.C. Dep’t of
Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003).
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. 2003). See, e.g., S.C. Code Ann. § 1-23-380(B) (Supp. 2003) (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. 2003) 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. 2003).
DISCUSSION
I. DUE PROCESS ARGUMENT
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)).
McFadden contends that his due process rights were violated because the witnesses he called
did not appear at the hearing. However, there is no indication in the record that McFadden or
McFadden’s counsel substitute attempted to call any witnesses at the hearing.
McFadden also argues that DOC violated his due process rights by failing to follow its own
internal policies. He contends that he was only allowed to meet with his counsel substitute for five
minutes prior to the hearing. He also argues that he was not served with P.H.D. form 19-67 within
72 hours, in violation of prison rules. However, even if these allegations were established, such
violations of DOC policy do not automatically require a reversal of or even a modification to the
DOC order. Well-established law explains that an agency’s failure to follow its own procedural rules
and regulations does not violate an aggrieved party’s constitutional due process rights since no such
constitutional right exists. See Bd. of Curators v. Horowitz, 435 U.S. 78, 92 (1978); Hernandez v.
Estelle, 788 F.2d 1154, 1158 (5th Cir.1986); Ogburn-Matthews v. Loblolly Partners (Ricefields
Subdivision), 332 S.C. 551, 562, 505 S.E.2d 598, 603 (Ct.App. 1998), overruled on other grounds
by Brown v. S. C. Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002).
In this case, McFadden 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, McFadden received all of the due process to which
he was entitled.
II.SUBSTANTIAL EVIDENCE ARGUMENT
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. 2003).
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. 2003); 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.
Here, McFadden’s testimony that he was attempting to help the situation and that he could
not return to his cell despite his attempts to do so conflicted with Officer Rogers’s testimony that
McFadden was not trying to help and was in fact saying and doing things that escalated the situation.
The fact that reasonable minds could differ as to the conclusions to be drawn from the evidence does
not prevent the DOC’s conclusion from being supported by substantial evidence in the record. Thus,
the DOC’s decision was not erroneous in light of the evidence presented at the hearing.
CONCLUSION
For the foregoing reasons, the guilty verdict entered by DOC against Appellant Herbert
McFadden is AFFIRMED.
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
March 22, 2004
Columbia, South Carolina |
