Allen v. SCDC ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Quincy Allen, #6019, Appellant,
v.
South Carolina Department of Corrections, Respondent.
Appellate Case No. 2018-002046
Appeal From The Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge
Opinion No. 5843
Heard May 5, 2021 – Filed August 4, 2021
AFFIRMED
E. Charles Grose, Jr., of Grose Law Firm, of Greenwood,
for Appellant.
Annie Laurie Rumler and Christina Catoe Bigelow, both
of the South Carolina Department of Corrections, of
Columbia, for Respondent.
LOCKEMY, C.J.: Quincy Allen appeals the Administrative Law Court's (ALC's)
dismissal of his inmate grievance appeal. On appeal, he argues the ALC erred by
holding it lacked jurisdiction to hear his case because the South Carolina
Department of Corrections's (SCDC's) denial of his visitation with persons he did
not know prior to his incarceration implicated a state-created liberty interest. We
affirm.
FACTS/PROCEDURAL HISTORY
Allen is a death-sentenced inmate who has been incarcerated for nearly nineteen
years. On March 21, 2018, Allen submitted a Step 1 Inmate Grievance Form
requesting that SCDC permit him to see visitors whom Allen had not met prior to
his incarceration. SCDC denied his Step 1 Grievance stating, "SCDC feels that not
knowing an inmate prior to incarceration is a security concern." Allen filed a Step
2 Inmate Grievance Form repeating this request. SCDC denied his Step 2
Grievance citing SCDC Policy OP-22.09.1
Allen appealed SCDC's denial of his inmate grievances to the ALC, arguing SCDC
(1) used arbitrary and capricious unwritten policies and procedures to disapprove
visitors, (2) disregarded and overlooked its written policies regarding visitation, (3)
misapplied its written policies, and (4) failed to provide due process. SCDC filed a
motion to dismiss, which the ALC granted. The ALC ruled its jurisdiction
regarding inmate appeals was limited to state-created liberty interests and SCDC
restricting Allen's visitation did not implicate a state-created liberty interest. This
appeal followed.
ISSUE ON APPEAL
Did the ALC err by holding Allen did not have a state-created liberty interest in
visitation with the general public?
STANDARD OF REVIEW
The Administrative Procedures Act (APA) establishes the standard of review in
appeals from the ALC. S.C. Code Ann. § 1-23-610(B) (Supp. 2020). An appellate
court may reverse or modify a decision if the ALC's findings or conclusions 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;
1
S.C. Dep't of Corr. Policy/Procedure, No. OP-22.09, Inmate Visitation § 1.4 (Aug
1, 2016) ("Inmate visitation is considered to be a privilege and is not considered a
guaranteed right. Therefore, the SCDC reserves the right to suspend, restrict, deny,
or terminate an inmate's or visitor's visitation privileges . . . due to legitimate
concerns regarding the security and safety of the institution.").
(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.
Id.
LAW/ANALYSIS
Allen argues he has a state-created liberty interest in rehabilitation, which includes
visitation with members of the general public. He asserts that a ban on visitors he
did not know prior to his incarceration implicates the due process clause. We
disagree.
State-Created Liberty Interest in Visitation
"Admittedly, prisoners do not shed all constitutional rights at the prison gate but
'[l]awful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our
penal system.'" Sandin v. Conner, 515 U.S. 472, 485 (1995) (citation omitted)
(quoting Jones v. N.C. Prisoners' Lab. Union, Inc., 433 U.S. 119, 125 (1977)).
An inmate who seeks to challenge a final decision of SCDC may seek review of an
administrative matter under the APA. Al-Shabazz v. State, 338 S.C. 354, 369, 527
S.E.2d 742, 750 (2000). However, the ALC only has jurisdiction of matters
implicating a state-created liberty interest. See Sullivan v. S.C. Dep't of Corr., 355
S.C. 437, 443, 586 S.E.2d 124, 127 (2003) ("The only way for the [ALC] to obtain
subject matter jurisdiction over [an inmate's] claim is if it implicates a state-created
liberty interest."). "[S]tate law may create enforceable liberty interests in the
prison setting." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 461 (1989).
An inmate "claiming a protected interest must have a legitimate claim of
entitlement to it. Protected liberty interests 'may arise from two sources[:] the Due
Process Clause itself and the laws of the States.'" Id. at 460 (quoting Hewitt v.
Helms, 459 U.S. 460, 466 (1983)). In order to establish a state-created liberty
interest, a regulation must "contain 'explicitly mandatory language,' i.e., specific
directives to the decisionmaker that if the regulations' substantive predicates are
present, a particular outcome must follow." Id. at 463 (quoting Hewitt, 459 U.S. at
472).
"Stated simply, 'a State creates a protected liberty interest by placing substantive
limitations on official discretion.'" Id. at 462 (quoting Olim v. Wakinekona, 461
U.S. 238, 249 (1983)). This language means if the regulation explicitly mandates
an outcome based on the existence of relevant criteria then the State has created a
liberty interest. Id. at 462. Based on this, we must examine whether SCDC's
policy mandates SCDC to permit inmate visitation with persons the inmate did not
know prior to incarceration when relevant criteria are met. We find it does not.
SCDC's visitation policy lacked "explicitly mandatory language" requiring a
particular outcome when factual predicates are met. SCDC's policy expressly
states visitors deemed to be a security risk will not be permitted to visit inmates
and that visitation is not a guaranteed right. See S.C. Dep't of Corr.
Policy/Procedure, No. OP-22.09, Inmate Visitation § 1.4 (Aug 1, 2016). This
policy vests SCDC with wide discretion; thus, it does not mandate an outcome.
Since there is no mandated outcome there was no state-created interest in visitation
with persons Allen did not know prior to his incarceration.
States may also create liberty interests protected by the Due Process Clause by
limiting an inmate's freedom from restraint in such a way that "imposes atypical
and significant hardship on the inmate in relation to the ordinary incidents of
prison life." Sullivan, 355 S.C. at 442, 586 S.E.2d at 126 (quoting Sandin, 515
U.S. at 484). The denial of Allen's visitation with persons not known to him prior
to incarceration was not a violation of his right to freedom from restraint that is
atypical, nor did it create a significant hardship on Allen in relation to ordinary
prison life because the record contains no indication SCDC treats other inmates
differently. Cf. Sullivan, 355 S.C. at 445, 586 S.E.2d at 128 ("[D]enying Sullivan
access to [phase two of the Sex Offender Treatment Program (SOTP II)] or any
other sex offender program does not impose an 'atypical or significant hardship' on
Sullivan as all other inmates designated as sex offenders are afforded the same
access to treatment.").
Rehabilitation
Allen further argues these visitors are necessary for his rehabilitation; thus, the
ALC had jurisdiction to hear this case because his visitation implicates a
state-created liberty interest in rehabilitation. We disagree.
The South Carolina Constitution enumerates prisoner rehabilitation. See S.C.
Const. art. XII, § 2 ("The General Assembly shall establish institutions for the
confinement of all persons convicted of such crimes as may be designated by law,
and shall provide for the custody, maintenance, health, welfare, education, and
rehabilitation of the inmates."). However, our supreme court has held the South
Carolina Constitution does not create a liberty interest in specific forms of that
rehabilitation. Sullivan, 355 S.C. at 444, 586 S.E.2d at 127.
In Sullivan, our supreme court held the South Carolina Constitution does not
impose a duty of rehabilitation on SCDC. Sullivan, an incarcerated sex offender,
sought SOTP II immediately after he completed SOTP I through the SCDC
grievance process. Id. at 440, 586 S.E.2d at 125. SCDC denied his requests. Id.Sullivan appealed to the ALC, and the ALC dismissed the case because it lacked
subject matter jurisdiction. Id. Sullivan appealed to our supreme court arguing,
"the South Carolina Constitution guarantee[d] him a right to rehabilitation, which
require[d] the SCDC to give him access to sex offender treatment while
incarcerated" and that the deprivation of SOTP II implicated a state-created liberty
interest in rehabilitation. Id. at 444, 586 S.E.2d at 127. Our supreme court
affirmed the ALC's dismissal and held Sullivan did not raise a state-created liberty
interest and declined to impose a duty of specific forms of rehabilitation on SCDC.
Id. Our supreme court held, "Even if [the South Carolina Constitution] is read to
require some rehabilitation for inmates, it does not mandate any specific programs
that must be provided by the General Assembly or the SCDC . . . ." Id.The South Carolina Constitution did not create a liberty interest in specific
programs of rehabilitation; thus, it does not mandate specific types of visitation in
the interest of rehabilitation. See id. at 445, 586 S.E.2d at 127–28 (holding that if
the court required specific programs of rehabilitation it "would conflict with
the hands-off approach that this Court has taken towards internal prison matters.").
Allen failed to raise a state-created liberty interest in rehabilitation that required the
State to provide visitation with persons he did not know prior to his incarceration.
Thus, the ALC lacked jurisdiction to hear Allen's appeal from his Step 2
Grievance.2
2
Allen argues in his reply brief that SCDC's interpretation of its policy was
arbitrary and capricious. Because he failed to raise this issue in his initial brief we
find this issue abandoned. See Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C.
76, 81, 557 S.E.2d 689, 692 (Ct. App. 2001) ("[A]n argument made in a reply brief
cannot present an issue to the appellate court if it was not addressed in the initial
brief.").
CONCLUSION
Based on the foregoing, we affirm the ALC's dismissal of Allen's appeal of his
Step 2 Grievance based on lack of jurisdiction because there was no state-created
liberty interest in visitation.
AFFIRMED.
WILLIAMS and HEWITT, JJ., concur.