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2012-UP-002 - Shock v. SCDC

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Reginald Shock, Appellant,

v.

South Carolina Department of Corrections, Respondent.


Appeal from the Administrative Law Court
Deborah Brooks Durden, Administrative Law Judge


Unpublished Opinion No.  2012-UP-002
Submitted December 1, 2011 – Filed January 4, 2012


AFFIRMED


Reginald Shock, pro se.

Christopher D. Florian, of Columbia, for Respondent.

PER CURIAM: Reginald Shock appeals the Administrative Law Court's (ALC) order dismissing his inmate grievance appeal.  Shock argues the ALC erred in determining his right to due process was not violated during his disciplinary hearing for possession of a cell phone.  We affirm.[1] 

Initially, we find Shock's due process arguments concerning his requested witnesses being present at trial, his requested counsel substitute, and the insufficient return by the Disciplinary Hearing Officer (DHO) not preserved for review.  See Al-Shabazz v. State, 338 S.C. 354, 379, 527 S.E.2d 742, 755 (2000) (stating issues that have not been raised to and ruled upon by the ALC are not preserved for review); see also State v. Owens, 378 S.C. 636, 638-39, 664 S.E.2d 80, 81 (2008) (finding due process rights issue not properly raised and ruled upon unpreserved for review); Ward v. State, 343 S.C. 14, 18, 538 S.E.2d 245, 247 (2000) (stating an ALC can rule on whether a party's constitutional rights have been violated).

[D]ue process in a prison disciplinary proceeding involving serious misconduct requires:  (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)).  "Agency officials or members who adjudicate a matter are presumed to be honest, fair, and unbiased."  Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 444, 511 S.E.2d 48, 54 (1998).  Additionally, situations in which the decision maker has a pecuniary interest in the outcome or has been the target of personal abuse or criticism from the defendant are such that the adjudicator cannot be said to be unbiased.  Withrow v. Larkin, 421 U.S. 35, 47 (1975).  Moreover, "[a]ctual bias or a high probability of bias must be present before due process concerns are raised."  Marshall v. Cuomo, 192 F.3d 473, 484 (4th Cir. 1999).  We find the ALC did not err in determining Shock's DHO was impartial.  First, no evidence shows the DHO had any pecuniary interest in Shock's case or that Shock personally abused or criticized the DHO in a way as to raise a red flag of potential bias.  Furthermore, we find any inaccuracies on Shock's incident report are mere scrivener's errors and do not warrant dismissal.  Cf. State v. Bultron, 318 S.C. 323, 329-30, 457 S.E.2d 616, 620 (Ct. App. 1995) (finding an indictment with a mere scrivener's error was not required to be quashed).  Accordingly, the ALC properly found the Department did not violate Shock's due process rights. 

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.