SC Administrative Law Court Decisions

INTRODUCTIONThis matter is before the Administrative Law Court (“ALC”) pursuant to the appeal of George Freeman Causey, an inmate incarcerated with the Department of Corrections (“DOC”). On August 11, 2003, Causey was convicted of violating SCDC Disciplinary Code 1.01, Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs. As a result of his conviction, Causey lost 270 days of good-time credit. Causey filed a grievance with the DOC and received a final agency decision on January 7, 2004. On January 27, 2004, Causey filed this appeal. After a review of the record and the arguments, the decision of the DOC is affirmed.

FACTS

On August 4, 2003, Cpl. Adcox administered a urine sample drug test for Causey based on reasonable suspicion. Causey provided the urine sample, which was tested using an On-Trak test stick. Causey’s urine sample tested positive for the THC marijuana. Cpl. Adcox then retested Causey’s urine sample using a confirmation American Bio-Medico test stick for THC marijuana, which also tested positive. Causey was charged with SCDC Disciplinary Code 1.01, Use or Possession of Narcotics, Marijuana, or Unauthorized Drugs.

Causey received written notification of the charge against him on August 6, 2003. Causey requested counsel substitute and requested his accuser’s presence at the hearing. A hearing was conducted on August 11, 2003 before a Disciplinary Hearing Officer (“DHO”).

At the hearing, Causey’s counsel substitute informed the DHO that Causey had been hospitalized for surgery on July 27 and 28, 2003, and that certain drugs administered in the hospital could result in a false negative drug test. The counsel substitute informed the DHO that he had put in a call to the hospital to obtain documentation regarding the specific drugs administered to Causey during that stay and information regarding whether those drugs could result in a false positive drug test. Although counsel substitute had not yet received the requested documentation and had requested that the case be placed on continuance, he stated that Causey had agreed to proceed with the hearing.

Causey explained to the DHO that he believes a good possibility exists that he failed the drug test administered to him on August 4, 2003 because the drugs and medication administered to him during his procedures in the hospital on July 27 and 28, 2003 affected his drug test and produced a false positive result. He stated that he lives in a dorm where a lot of people around him smoke marijuana, and admitted that he has been guilty in the past of smoking marijuana, but stated that he is currently involved in an alcoholics anonymous group and a narcotics anonymous group. He stated that he is not smoking marijuana now, and that he passed the two drug tests administered to him prior to the drug test at issue in this case.

After a short recess, the DHO decided, based upon the evidence, witnesses, and statements presented, that Causey was guilty of the charge. The DHO based the guilty finding on the narrative written by Cpl. Adcox along with the two positive test results for THC marijuana. However, the DHO further stated that if the proper documentation from the hospital indicates that Causey may have had some medication in his system to offset the drug test, and it was proven to be such, then his case will be recommended to the warden for consideration and reversal of the guilty finding. The DHO then recommended that Causey lose 90 days of phone privileges, 45 days of canteen privileges, 300 days of visitation, and 270 days of good time, and that he receive 15 hours of extra duty.

Causey filed a Step 1 Grievance on August 19, 2003, requesting that the warden obtain the hospital records, arguing that the records would demonstrate that it is very likely his positive drug test result was caused by the drugs administered to him while he was in the hospital. In his response, the Warden stated that he had spoken with Ms. Palmer, who stated that Causey could have tested positive for narcotics from the medication given at the hospital, but not for THC. marijuana. The Warden denied Causey’s grievance. Causey filed a Step 2 Grievance on October 23, 2003, and received the Department’s decision denying his Step 2 Grievance on January 7, 2004. Causey then filed the instant appeal with the ALC.

ISSUES ON APPEAL

Causey raises the following issues in his appeal:

(1)His right to exculpatory evidence;

(2)The validity of the drug stick test standing alone;

(3)His right to confirmation of the drug test by lab analysis;

(4)The validity of compound repetitive progressive punishment; and

(5)Whether his right to rehabilitation has been violated.

Causey’s first three arguments essentially raise challenges to his due process rights and to whether or not the Department’s decision is based upon substantial evidence.

JURISDICTION

Jurisdiction is invoked in the instant case since this matter is a disciplinary hearing in which Causey 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

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 his appeal, Causey argues that the testing and screening of his urine sample fails to comply with Department policy. However, Causey failed to raise this issue to the DHO at his hearing. An inmate cannot sit silently during a hearing, raising no objections, and then raise issues such as these for the first time on appeal. State v. Huggins, 336 S.C. 200, 205, 519 S.E.2d 574, 577 (1999) (“It is well settled that issues may not be raised for the first time on appeal.”). Further, even if all of Causey’s 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 (5^th 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).

Causey also argues that the Department failed to disclose exculpatory evidence. The evidence to which Causey refers in his Appellant’s Brief is the laboratory analysis of his urine. A review of the record shows that the Department disclosed to Causey the results of the urine tests. There is no evidence that further laboratory analysis exists other than what was disclosed to Causey. Assuming that Causey’s argument also challenges the fact that he was not allowed to have another laboratory analysis done to confirm the two tests that the Department performed, Causey again failed to raise this issue to the DHO during the hearing. Therefore, it cannot be addressed on appeal. Huggins, 336 S.C. at 205, 519 S.E.2d at 577.

Although not raised in his appeal, an issue was presented at the hearing before the DHO and in Causey’s Step 1 and Step 2 Grievances regarding his hospital records for his hospitalization shortly before the drug test at issue. Causey seemed to believe that the drugs administered to him in the hospital could have caused a false positive drug test for marijuana. This issue could be deemed abandoned because Causey failed to argue it in his Appellant’s Brief. See Bell v. Bennett, 307 S.C. 286, 294, 414 S.E.2d 786, 791 (Ct. App. 1992) (holding an issue which is not argued in the brief is deemed abandoned on appeal); ALC Rule 60(B)(1) (“Ordinarily, no point will be considered that is not set forth in the statement of issues on appeal”). Even if this issue were properly preserved for appellate review, the record clearly indicates that Causey waived his counsel substitute’s request for a continuance of his hearing before the DHO until such time as the hospital records could be obtained. Further, the DHO included in the ruling that Causey’s case could be reconsidered and possibly reversed if such hospital records were obtained and in fact showed that the drugs administered to Causey could have caused a false positive drug test result. Finally, the Department indicated in its response to Causey’s Step 1 Grievance that, according to its information, the drugs administered to Causey in the hospital could not have caused a false positive result in a drug test for THC marijuana. Causey failed to produce any documentation or testimonial evidence to the contrary of this statement by the Department, and he has failed to produce or even indicate that any records exist which prove his claim of a false positive result for THC marijuana.

In this case, Causey 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, Causey received all of the due process to which he was entitled.

II.SUBSTANTIAL EVIDENCE

Causey also argues that the evidence upon which the DHO relied in finding him guilty was unreliable and insufficient. Causey challenges the guilty finding because it is based solely on the stick test result.

The ALC, 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 ALC will not re-weigh the evidence in an attempt to come to an independent conclusion on the factual dispute. Rather, the ALC 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).

Considering the record as a whole, this tribunal cannot say that the DHO’s decision was erroneous. The DHO relied upon the narrative written by Cpl. Adcox along with the positive test results for THC marijuana from both drug tests. Substantial evidence exists in the record to support the DHO’s decision.

III.REMAINING ISSUES

The two remaining issues raised in Causey’s appeal, the validity of compound repetitive progressive punishment and whether Causey’s right to rehabilitation has been violated, were not raised to the DHO or in Causey’s Step 1 or Step 2 grievances. Therefore, these issues cannot be addressed on appeal. Huggins, 336 S.C. at 205, 519 S.E.2d at 577.

CONCLUSION

For the foregoing reasons, the guilty verdict entered by DOC against Appellant George Freeman Causey is AFFIRMED.

AND IT IS SO ORDERED.

___________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

May 17, 2004

Columbia, South Carolina