Hemingway 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

Timotheus E. Hemingway, Appellant,

v.

South Carolina Department of Corrections, Respondent.

Appellate Case No. 2012-207709

Appeal From The Administrative Law Court
Carolyn C. Matthews, Administrative Law Judge

Unpublished Opinion No. 2013-UP-055
Submitted January 1, 2013 – Filed January 30, 2013

AFFIRMED

Timotheus E. Hemingway, pro se.

Christopher D. Florian, of the South Carolina Department
of Corrections, of Columbia, for Respondent.

PER CURIAM: Timotheus E. Hemingway, pro se, appeals an order from the
Administrative Law Court (ALC) dismissing his appeal from the denial of his
grievances with the South Carolina Department of Corrections (the
Department). On appeal Hemingway argues the ALC erred in: (1) finding
substantial evidence supported his conviction; (2) finding his right to due
process was not violated by the Department's failure to provide an adequate
record of evidence relied upon to support his conviction; (3) finding the
Department timely served him with the record on appeal; and (4) finding his
right to due process was not violated by the Department's failure to adhere to
its established policies. We affirm.1

1. A review of the record on appeal reveals substantial evidence supported
Hemingway's conviction for threatening to inflict harm on an employee. See S.C.
Code Ann. § 1-23-610(B) (Supp. 2011) ("The review of the [ALC's] order must be
confined to the record. The court may not substitute its judgment for the judgment
of the administrative law judge as to the weight of the evidence on questions of
fact. The court of appeals may affirm the decision or remand the case for further
proceedings; or, it may reverse or modify the decision if the substantive rights of
the petitioner have been prejudiced because the finding, conclusion, or decision is:
(a) in violation of constitutional or statutory provisions; (b) in excess of the
statutory authority of the agency; (c) made upon lawful 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."). Here, both Officer's Glover's report and testimony indicate
Hemingway communicated an intent to injure Officer Glover in the future. See
Inmate Disciplinary System § 809 (Sept. 1, 2009) (stating an inmate is guilty of
threatening to inflict harm on an employee if he uses "[communication, verbal or
written . . . that [he] intends to injure [an employee] or commit a violent or
unlawful act dangerous to human life, presently or in the future. . . .").
Accordingly, we hold the ALC did not err in finding substantial evidence
supported Hemingway's conviction.

2. The record reveals the ALC correctly found the Department did not deny
Hemingway due process by failing to provide Hemingway with an adequate
written record of the evidence relied upon to support its finding of guilt. See Al-
Shabazz v. State, 338 S.C. 354, 371, 527 S.E.2d 742, 751 (2000) (stating in a
prison disciplinary proceeding, due process requires, in part, "that factfinders must
prepare a written statement of the evidence relied on and reasons for the
disciplinary action"). Here, the Department completed a Disciplinary Report and
Hearing Record that provided "written and verbal testimony of [Officer] Glover"
as the "reasons for determination of guilt." Accordingly, the ALC did not err in

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
finding the Department did not violate Hemingway's right to due process due to an
inadequate written record of the evidence relied upon to support its finding of guilt.

3. Hemingway's argument concerning the Department's failure to serve him with a
copy of the record on appeal is not preserved for our review because this issue was
never raised to or ruled upon by the ALC. See Al-Shabazz, 338 S.C. at 379, 527
S.E.2d at 755 ("[I]ssues or arguments that were not raised to and ruled on by
the [ALC] are not preserved for review.").

4. We hold the ALC correctly found Hemingway's right to due process was not
violated by the Department's failure to adhere to its own policies. Nothing in the
Inmate Grievance System indicates Hemingway was entitled to a dismissal of his
charges because the Department failed to address his grievance in sixty days.
Rather, the Inmate Grievance System specifically states an appeal automatically
proceeds to the next appellate level if it exceeds the established time limits. See
Inmate Grievance System § 13.5 (Nov. 4, 2004) ("If, at the institutional level, the
response to the grievance exceeds the established time limits, the grievance will
automatically proceed to the next level of appeal."). Moreover, the Department's
failure to follow its own policy does not give rise to a due process violation. See
Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990) ("[A]lleged
violations of due process in the deprivation of a protectable interest are to be
measured against a federal standard of what process is due and that standard is not
defined by state-created procedures, even when those state-created procedures
exceed the amount of process otherwise guaranteed by the Constitution. If state
law grants more procedural rights than the Constitution would otherwise require, a
state's failure to abide by that law is not a federal due process issue.").

AFFIRMED.

HUFF, THOMAS, and GEATHERS, JJ., concur.