Lisenby v. SCDC ( 2012 )

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
Billy Lee Lisenby, Jr., Appellant,
v.
South Carolina Department of
Corrections, Respondent.
__________
Appeal From the Administrative Law Court
Ralph K. Anderson, III, Administrative Law Court Judge
__________
Unpublished Opinion No. 2012-UP-411
Submitted June 1, 2012 – Filed July 11, 2012
__________
AFFIRMED
__________
Billy Lee Lisenby, Jr., pro se.
Christopher D. Florian, of Columbia, for Respondent.
PER CURIAM: Billy Lee Lisenby, Jr., appeals the Administrative
Law Court's (ALC) order dismissing his inmate grievance arising out of his
conviction of assault and battery of a South Carolina Department of
Corrections (the Department) employee with intent to injure. Lisenby argues
the ALC erred in finding (1) the record contained substantial evidence of
bodily harm to support his conviction; (2) he was not denied the right to
present witnesses; and (3) he was properly sentenced. We affirm.1
1. We hold the record contains substantial evidence of bodily harm
to support Lisenby's conviction of assault and battery of an employee of the
Department employee with intent to injure. When reviewing an appeal from
the ALC, an appellate court must not substitute its own judgment for that of
the ALC on questions of fact when those facts are supported by substantial
evidence. Al-Shabazz v. State, 338 S.C. 354, 380, 527 S.E.2d 742, 756
(2000). "Substantial evidence is relevant evidence that, considering the
record as a whole, a reasonable mind would accept to support an
administrative agency's action." Id. Such evidence exists when a court
would refuse to direct a verdict because the evidence presented would raise a
question of fact for the jury. Id. Here, the record indicates the officer
Lisenby assaulted missed work from March 30, 2009, until May 15, 2009.
Additionally, the incident report provided the incident resulting in Lisenby's
charge took place on March 30, 2009. Based on this evidence, the record
contains substantial evidence tending to show Lisenby's attack caused the
officer bodily harm.
2. We hold the ALC correctly found Lisenby's right to due process
was not violated. Due process in a prison disciplinary proceeding involving
serious misconduct requires, in part, that the inmate should be allowed to call
witnesses and present documentary evidence. Al-Shabazz, 338 S.C. at 371,
527 S.E.2d at 751. Contrary to Lisenby's contention, the record reveals he
was provided the opportunity to present witnesses at his hearing before the
Department. The record further indicates he did not have any witnesses
testify on his behalf, not because he was never provided an opportunity to
present witnesses, but because the witnesses did not respond to his requests to
testify. Accordingly, we hold Lisenby's right to due process was not violated.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
3. Because Lisenby never argued any issue concerning his
sentencing to the ALC, it is not preserved for our review. See Al-Shabazz,
338 S.C. at 379, 527 S.E.2d at 755 (noting issues or arguments not raised to
and ruled upon by the ALC are not properly preserved for further appellate
review).
AFFIRMED.
PIEPER, KONDUROS, and GEATHERS, JJ., concur.