ORDERS:
ORDER
STATEMENT OF CASE
This matter is before the Administrative Law Court
(ALC) pursuant to the appeal of
Donald Brown, an inmate incarcerated with the Department of Corrections (DOC or
Department). Brown was convicted of violating SCDC Disciplinary Code § 2.01, Use or
Possession of or Distilling and/or Brewing of any Alcoholic Beverage, after pleading not guilty
to the charge. As a result of his conviction, the Appellant lost ninety (90) days of “good-time”
credit. Brown filed a grievance with the Department and received the Department’s final
decision on October 22, 2003. On November 3, 2003, the Appellant filed this appeal with the
Court.
BACKGROUND
On August 11, 2003, Lieutenant Bowers searched a locker in the Appellant’s room at
Turbeville Correction Institution. During that search, Lieutenant Bowers found a container filled
with liquid that smelled like alcohol, six green peppers and five pounds of margarine in an empty
locker in the room. The Appellant was the only inmate housed in the room. Based upon the
smell, Lieutenant Bowers determined that the liquid was “homemade wine.” Therefore,
Lieutenant Bowers completed an Incident Report charging the Appellant with violating SCDC
Code § 2.01, Use or Possession of or Distilling and/or Brewing of any Alcoholic Beverage. The
Appellant received written notice of the charges on August 15, 2003.
A hearing was held on August 21, 2003, before a Disciplinary Hearing Officer (DHO).
At the Appellant’s request, he was provided a counsel substitute. Additionally, at his request,
Lieutenant Bowers was present at the hearing. During the hearing, the DHO read a narrative of
Lieutenant Bowers’ Incident Report into the Record and received testimony from the Appellant
and Lieutenant Bowers as evidence. A statement by Inmate Willis was also read into evidence.
At the conclusion of the hearing, the DHO found the Appellant guilty of violating SCDC Code
§ 2.01 and sanctioned him with the loss of ninety (90) days of “good time” credit. After the
hearing, the DHO completed a Major Disciplinary Report and Hearing Record, which
documented the DHO’s findings based on the Record.
The Appellant filed a grievance appealing his conviction of violating SCDC § 2.01. On
September 16, 2003, the Warden denied the Appellant’s grievance. After he appealed the
Warden’s decision, the Department denied his grievance, stating that the evidence supported the
conviction and that the sanction imposed was appropriate for the violation that the Appellant
committed. This appeal followed. In his Appeal Brief, the Appellant alleges that:
1.He is innocent of the charge; and
2.Since no tests were conducted upon the fluid to verify that it was “homemade
wine,” the evidence failed to establish that he violated Section 2.01.
STANDARD OF REVIEW
The Court’s jurisdiction to hear this matter is derived entirely from the decision of the
South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000).
The Court’s appellate jurisdiction in inmate appeals is limited to state created liberty interests
typically involving: (1) cases in which an inmate contends that prison officials have erroneously
calculated his sentence, sentence-related credits, or custody status; and (2) cases in which an
inmate has received punishment in a major disciplinary hearing as a result of a serious rule
violation. Id.
When reviewing the Department’s decisions in inmate grievance matters, the ALC 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).
Additionally, 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 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 this case, the Appellant alleges that the Department should not have revoked ninety
(90) days of his accrued good time. Inmates have a protected liberty interest in their earned
statutory good-time credits under the Fourteenth Amendment. Therefore, when, as here, the
Department revokes an inmate’s good-time credits as punishment in a “major disciplinary
hearing” involving “more serious rule violations,” prison officials must provide that inmate with
“minimal due process.” Al-Shabazz, 338 S.C. at 370, 527 S.E.2d at 750. Consequently, specific
administrative procedures must be followed before depriving an inmate of statutorily granted
earned credit, including adequate advance notice of the charges, adequate opportunity for a
hearing in which the inmate can present witnesses and documentary evidence, and an impartial
hearing officer who prepares a written statement of all the evidence presented and the reasons for
his decision. Al-Shabazz, 527 S.E.2d at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72,
94 S. Ct. 2963, 2978-82 (1974).
DISCUSSION
I find that the Appellant was afforded all process due him pursuant to Al-Shabazz. The
Record indicates that the Appellant received written notice of the charges against him in excess
of twenty-four (24) hours prior to a hearing that was held before an impartial Disciplinary
Hearing Officer. At the hearing, the Appellant was given the opportunity to offer evidence, call
witnesses, and confront his accuser. In addition, although not constitutionally required, the
Appellant was afforded a counsel substitute who assisted him in his defense. After the DHO
determined that the Appellant was guilty of the charged offense, she prepared a written report
detailing the evidence she relied upon and the penalty assessed in finding the Appellant guilty of
the disciplinary infraction. Finally, the Appellant was permitted to appeal the DHO’s decision
through the inmate grievance process.
The Appellant generally argues that the evidence did not support the Department’s
decision. More specifically, he contends that the officer’s determination that the liquid found in
his cell was homemade wine based on scent alone was insufficient to establish that the substance
was indeed wine. As set forth above, the question for this Court to determine is whether there is
“any evidence in the record that could support the conclusion reached by the disciplinary board.”
Superintendent, Massachusetts Correctional Institution, supra. 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).
I find that there is substantial evidence to support the Appellant's conviction of violating
DOC Disciplinary Code § 2.01, The Use or Possession of or Distilling and/or Brewing of any
Alcoholic Beverage. A Code 2.01 violation is: “Any inmate acting under the influence, or in
possession of alcohol or alcoholic beverage or other substance which, when ingested, creates
altered states of physical or mental activity.” The Appellant presented both his testimony and a
statement by Inmate Willis that the substance found in his cell belonged to Willis and he had no
knowledge of the contents. He also presented evidence that the substance was not in his personal
locker. Nevertheless, by his own admission, the Appellant gave Willis the key to place the items
in his locker. Moreover, he was the only one housed in the cell. Furthermore, both the DHO and
Lieutenant Bowers found that the liquid container found by Lieutenant Bowers contained a liquid
that smelled like alcohol. An officer’s sense of smell can be used as evidence to establish a
crime. See State v. Perry, 358 S.C. 633, 595 S.E. 2d 883 (2004). Therefore, though this
evidence did not establish a strong case, “[t]he fact finder is imbued with broad discretion in
determining credibility or believability of witnesses.” Small v. Pioneer Machinery, Inc., 329 S.C.
448, 465, 494 S.E.2d 835, 843 (1998). Consequently, the Record establishes substantial
evidence that the Appellant violated Section 2.01.
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
September 7, 2004
Columbia, South Carolina |
