/opinions/HTMLFiles/SC/25887.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

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Gary R. Slezak, Appellant,

v.

South Carolina Department of Corrections, Respondent.

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Appeal From Dorchester County
Diane Schafer Goodstein, Circuit Court Judge

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Opinion No. 25887
Heard October 7, 2003 - Filed November 1, 2004

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AFFIRMED IN PART; REVERSED AND REMANDED IN PART

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Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.

David M. Tatarsky, Mary Davenport Anderson, and Kelli Gregg Maddox, all of Columbia, for Respondent.

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PER CURIAM: This is an appeal from two circuit court orders upholding an administrative law judges (ALJs) determination that he lacked jurisdiction over six grievances filed by inmate Gary Slezak (appellant). We affirm as to one grievance, affirm as modified as to four, and reverse and remand one for reconsideration in light of our decision in Sullivan v. South Carolina Dept of Corrections, 355 S.C. 437, 586 S.E.2d 124 (2003). Further, we clarify the jurisdiction of the Administrative Law Judge Division (ALJD) in inmate grievance matters.

In Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the Court held that inmates could pursue appellate review in the ALJD of certain grievance decisions made by the Department of Corrections (DOC). The ALJD responded to Al-Shabazz in an en banc order issued September 5, 2001. McNeil v. South Carolina Dept of Corrections. In McNeil, the ALJD purported to limit its appellate jurisdiction in inmate appeals to grievances where:

1)     the contention is that the inmates sentence, sentence-related credits or custody status have been erroneously calculated, or

2)     the inmates created liberty interest has been taken as punishment in a major disciplinary hearing.

In footnote 5 of Sullivan, this Court substantially modified McNeil and held:

.the ALJD and the circuit court are instructed to look to this opinion, not McNeil, for guidance in future cases. Although much of McNeils analysis is accurate, we believe Wolff [v. McDonnell, 418 U.S. 539 (1974)] requires minimal due process when for [sic] state-created liberty interests, which are not necessarily limited to sentence credit issues and major disciplinary decisions.

See also Wicker v. South Carolina Dept of Corrections, Op. No. 25859 (S.C. Sup. Ct. filed August 23, 2004) (recognizing another limited ALJD jurisdictional exception where inmate claims deprivation of property interest).

We now clarify that the ALJD has subject matter jurisdiction to hear appeals from the final decision of the DOC in a non-collateral or administrative matter. Al-Shabazz, supra. Subject matter jurisdiction refers to the ALJDs power to hear and determine cases of the general class to which the proceedings in question belong. Cf. Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994) (definition of judicial subject matter jurisdiction). Further, the ALJD has appellate jurisdiction over any matter where the procedural prerequisites for perfecting such an appeal have been met. Great Games, Inc. v. South Carolina Dept of Rev., 339 S.C. 79, 529 S.E.2d 6 (2000) (appellate jurisdiction exists where procedural requirements met).

While the ALJD has jurisdiction over all inmate grievance appeals that have been properly filed, we emphasize that the Division is not required to hold a hearing in every matter. Summary dismissal may be appropriate where the inmates grievance does not implicate a state-created liberty or property interest. See Sandin v. Conner, 515 U.S. 472 (1995) (due process clause offended only when inmate subjected to atypical and significant hardships in relation to ordinary incidents of prison life).

Appellants appeals to the ALJD and to the circuit court were decided prior to our opinions in Sullivan and Wicker, and were dismissed as beyond the ALJDs jurisdiction pursuant to the McNeil order. In the interest of judicial economy, we will address this appeal on its merits.

ISSUE

Whether the circuit court erred in dismissing appellants grievances?

ANALYSIS

We address each of appellants six grievances below.

Appellant first complained that DOC seized certain educational cassette tapes in appellants possession. The record reveals that the DOC policy denies inmates possession of cassette tapes other than tapes of the inmates parole hearing(s) or religious tapes obtained from the chaplain. We find no protected liberty or property interest implicated in the DOCs decision to declare cassette tapes contraband, and to seize appellants tapes pursuant to this policy.

Appellant also complains about a DOC policy that provides for the loss of good time credits in certain circumstances. The record establishes that appellant is not eligible to receive such credits, and accordingly lacks standing to challenge the DOC policy.

Appellants third complaint relates to a DOC policy limiting the amount of legal material he could keep in his cell while in administrative segregation. The DOC determined that the retention of large amounts of paper in these cells created a fire hazard, and therefore permitted an inmate to retain a limited amount in his cell with the remainder available upon request. Appellant concedes his materials were returned upon his release from administrative segregation to the general population. We find this grievance is moot, and that, in any case, the decision to limit papers for fire safety reasons does not implicate a protected liberty or property interest.

Appellant also complained because DOC confiscated a book sent to him through the mail. Under DOC policy, inmates may receive only books mailed to them directly from the publisher for security reasons. Appellants grievance does not involve a state-created liberty or property interest.

Appellant also challenged S.C. Code Ann. 23-2-620 (Supp. 2004), which requires inmates convicted of certain crimes to submit a DNA sample, and 23-3-670, requiring the person providing the DNA sample to pay a $250 processing fee. Appellants counsel acknowledged at oral argument that appellant was challenging the constitutionality of these statutes, and that such a challenge was properly brought as a declaratory judgment action in circuit court rather than through the administrative grievance process. See e.g. Great Games, supra; Video Gaming Consultants, Inc. v. South Carolina Dept of Rev., 342 S.C. 34, 535 S.E.2d 642 (2000). This grievance was properly dismissed for lack of jurisdiction. [1]

Appellants sixth grievance asserted that the practice of triple celling at McCormick Correctional Institute constituted both a security hazard and a health hazard to inmates. We find this grievance adequately states a violation of appellants liberty interest so as to entitle him to a hearing before an ALJ. Accordingly, we remand this grievance appeal to the ALJD for further proceedings.

CONCLUSION

We hold that the ALJD has jurisdiction over all properly perfected inmate appeals, but clarify that it may summarily decide those appeals that do not implicate an inmates state-created liberty or property interest. We affirm as modified the orders upholding the dismissal of five of appellants complaints, and reverse and remand the triple celling complaint to the ALJD.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

TOAL, C.J., WALLER, BURNETT, PLEICONES, JJ., and Acting Justice Doyet A. Early, III, concur.

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