ORDERS:
ORDER
STATEMENT OF CASE
This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant
to the appeal of Travis Golston, an inmate incarcerated with the Department of Corrections
(Department). Golston was convicted of violating SCDC Disciplinary Code § 1.10, “Use or
Possession of Narcotics, Marijuana or Unauthorized Prescription Drugs,” after pleading not guilty
to the charge. As a result of his conviction, the Appellant contends his projected release date was
“set back” one hundred eighty (180) days. Golston filed a grievance with the Department and
received the Department’s final decision on September 9, 2003. On October 8, 2003, the
Appellant filed this appeal with the Division.
BACKGROUND
On July 16, 2003, the Appellant was administered a drug test at Turbeville Correction
Institution by Officer Brown. The Appellant tested positive for marijuana. Officer Brown then
performed a confirmation test which further corroborated the existence of marijuana in the
Appellant. Therefore, Officer Brown completed an Incident Report charging the Appellant with
violating SCDC Code § 1.10, “Use or Possession of Narcotics, Marijuana or Unauthorized
Drugs.” The Appellant received written notice of the charges on July 24, 2003.
After receiving notice of the charge, the Appellant waived his right to a hearing and also
indicated that he neither wanted counsel substitute nor Officer Brown to be present at the hearing.
Nevertheless, a hearing was held on July 28, 2003, by a Disciplinary Hearing Officer (DHO). At
that hearing, the DHO reviewed Officer Brown’s Incident Report and found the Appellant guilty
of violating SCDC Code § 1.10. The DHO referred the case to the “CMT” (case management
team) and enumerated sanctions against the Appellant including, in part, the loss of one hundred
eighty (180) days of “good time.”
The Appellant filed a grievance appealing the Department’s determination that he violated
SCDC § 1.10 and the Warden subsequently denied the Appellant’s grievance. After he appealed
the Warden’s decision, the Department denied his grievance. This appeal followed. In his Appeal
Brief, the Appellant argues that:
1.Though he does not earn “good time” credit, this Division has jurisdiction to hear
this case because the conviction which resulted in a “six month setback”of his
release date amounted to a deprivation of his liberty interest;
2.The evidence did not support the Department’s decision;
3.He was denied a fair and impartial hearing; and
4.The policy that requires offenders sentenced to one-to-five years under the
Youthful Offenders Act to potentially serve the same amount of time as offenders
sentenced to one-to-six years is arbitrary and denied the Appellant due process and
equal protection.
STANDARD OF REVIEW
The Division’s jurisdiction to hear this matter is derived from the decision of the South
Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al-Shabazz, the Court recognized that the administrative matters entitled to review by the ALJD
“typically arise in two ways: (1) when an inmate is disciplined and punishment is imposed and (2)
when an inmate believes prison officials have erroneously calculated his sentence, sentence-related
credits, or custody status.” Id. at 750.
Furthermore, when reviewing the Department’s decisions
in inmate grievance matters, the Division sits in an appellate capacity. Al-Shabazz at 756.
Consequently, the review in these inmate grievance cases is limited to the record presented. An
Administrative Law Judge may not substitute his judgment for that of an agency “as to the weight
of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(A)(6) (1986 & Supp. 2002).
Furthermore, an Administrative Law Judge may not reverse or modify an agency’s decision unless
substantial rights of the appellant have been prejudiced because the decision is clearly erroneous in
view of the substantial evidence on the whole record, arbitrary or affected by an error of law. See
S.C. Code Ann. § 1-23-380(A)(6); See also Marietta Garage, Inc. v. South Carolina Dept. of
Public Safety, 337 S.C. 133, 522 S.E.2d 605 (1999); South Carolina Dept. of Labor, Licensing
and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (1998). “‘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). Further, the possibility of
drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence. Grant v. South Carolina Coastal
Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
DISCUSSION
The Appellant contends that though he does not earn “good time” credit, this Division has
jurisdiction to hear this case because the DHO’s determination that he used or possessed
marijuana resulted in a “six month setback”of his release date. It is fundamental that “every court
has the power and duty to decide all issues necessary to the determination of its own jurisdiction.”
State v. Keenan, 278 S.C. 361, 364, 296 S.E.2d 676, 677 (1982). Accordingly, the “lack of
subject matter jurisdiction can be raised at any time, can be raised for the first time on appeal, and
can be raised sua sponte by the court.” Lake v. Reeder Const. Co., 330 S.C. 242, 248, 498
S.E.2d 650, 653 (Ct. App. 1998). “The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and
property.”Al-Shabazz, supra. (quoting, Board of Regents of State Colleges v. Roth, 408 U.S.
564, 569, 92 S. Ct. 2701, 2705, 33 L. Ed.2d 548, 556 (1972)). In McNeil, this Division held that
it does not hear appeals pursuant to Al-Shabazz concerning all “constitutionally protected
interests.” Rather, “in order for an inmate to raise a cognizable claim for appellate review by the
Division, the discipline must involve punishment which results in the deprivation of a created
constitutionally protected liberty interest (e.g., loss of good time credits or placement in solitary
confinement).” In Sullivan, the South Carolina Supreme Court affirmed that the ALJD’s subject
matter jurisdiction is limited to those cases in which Appellants claim the Department has
deprived them of “state created liberty interests.” Sullivan v. S.C. Department of Corrections
(Opinion No. 25704, filed August 25, 2003). Here, the inmate did not have a vested
constitutional interest in any “good time” credits. Rather, the inmate is serving an indeterminate
sentence as a result of a conviction under the Youthful Offenders Act. Since he had no vested
interest in any such credits there is no existing interest to restore.
Moreover, though the Appellant contends that he was denied a fair and impartial hearing,
he waived his right to a hearing.
If, through no fault of prison officials, a prisoner . . . refuses to attend a
disciplinary hearing, due process requires no more than that the hearing be held in
accordance with all of the other requirements of due process that are called for
under the circumstances. Due process requires only that the government operate
under procedures that give a person a fair opportunity to ensure that the
governmental decision affecting that person's life, liberty, or property is just; it
does not mean that the government, in an effort to make sure that everyone does
what is in his or her best interests, must see to it that each person takes advantage
of these opportunities.
Moody v. Miller, 864 F.2d 1178, 1181 (5th Cir.1989). Additionally, “[u]nder ordinary
circumstances, when an inmate voluntarily waives his appearance before a disciplinary hearing
officer, he cannot then attack the adjudication as violative of his constitutional rights.” Howard v.
Wilkerson, 768 F. Supp. 1002 (S.D.N.Y.1991). Here, since the Appellant waived his right to
attend his hearing and, consequently, failed to raise the argument that his sentence was improperly
extended, he cannot now raise that argument on appeal. Furthermore, the Appellant failed to
establish that the cursory hearing that was held was unfair or partial.
The Appellant also argues that the evidence did not support the Department’s decision. In
Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S. Ct.
2768 (1985), the U.S. Supreme Court held that “the relevant question is whether there is any
evidence in the record that could support the conclusion reached by the disciplinary board.”
Moreover, in Al-Shabazz the Court underscored that since prison officials are in the best position
to decide inmate disciplinary matters, the Courts and therefore this Division adhere to a “hands
off” approach to internal prison disciplinary policies and procedures when reviewing inmate
appeals under the APA. Al-Shabazz 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). In fact, the production of physical evidence is generally not
required at an inmate disciplinary hearing. Barker v. State, 437 So.2d 1375 (Ala. Crim. App.
1983). In this case, though the evidence presented was limited to the reading of the incident
report, the limited presentation of that evidence was a direct result of the Appellant’s waiving his
right to appear, waiving the appointment of counsel substitute, and waiving the requirement that
the charging officer appear at the hearing. Furthermore, the incident report contains sufficient
evidence for an individual to reasonably arrive at the conclusion reached by the DHO in this case.
See Smith v. Samu, 54 F.3d 788 (10th Cir. 1995).
ORDER
IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and
the Final Decision of the Department is AFFIRMED;
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
April 6, 2004
Columbia, South Carolina |
