ORDER OF DISMISSAL
Grievance No. MSU-0080-00
This matter is before the Administrative Law Judge Division ("Division") pursuant to a Notice of Appeal filed by Ra'heen
M. Shabazz ("Appellant") with the Division on August 14, 2000. Appellant is presently incarcerated in solitary
confinement at the Evans Correctional Institution and asks that the Department of Corrections ("Department") serve him
food in conformity with Islamic Dietary Law. Appellant alleges that an order was issued on December 3, 1997, by the
wherein it held that members of the "Five Percenters," which Appellant claims to be, would be allowed to practice their
religion while in solitary confinement, which included the right to pray, meditate, fast, and follow dietary restrictions.
Appellant appeals the Department's final decision dated June 20, 2000. The Department determined that Appellant's
"designation as a Security Threat Group (STG) member (five percenter)" did not entitle him "to a non-pork diet tray."
Further, the Department held that it did "not recognize the five-percenters as a religious group, but a security threat group."
Appellant argues that the Department has "blatantly violated the court order of December 3, 1997," by refusing to allow
him to follow his religious dietary restriction laws. He argues that such is a fundamental right.
Prior to February 14, 2000, inmates wishing to appeal internal disciplinary convictions filed an application for PCR in
circuit court within one year after a newly-created and retroactively-applied standard or right. See S.C. Code Ann. § 17-27-45(A) (Supp. 1995). In Al-Shabazz v. State, 338 S. C. 354, 527 S. E. 2d 742 (2000), the South Carolina Supreme Court
greatly restricted the use of PCR by inmates to complain about the conditions of their confinement. Instead of filing a PCR
application, a challenge of a "non-collateral matter" (i.e., a matter in which the inmate does not challenge the validity of a
conviction or sentence) arising out of an inmate grievance would thereafter be subject to review pursuant to the
Administrative Procedures Act ("APA"). The Court reasoned that "[p]lacing review of these cases within the ambit of the
APA will ensure that an inmate receives due process, which consists of notice, a hearing, and judicial review." 338 S.C. at
369, 527 S.E.2d at 750. The Court, however, provided that its decision will only apply to:
all PCR actions filed and all administrative matters in which Department renders a final decision after the date of this
opinion. It also shall apply to all cases currently pending in circuit court or before this Court in . . . cases in which
Department has decided a non-collateral or administrative matter and the inmate has not had the opportunity to obtain APA
review in the manner we have outlined.
338 S.C. at 384, 527 S.E.2d at 758.
On September 5, 2001, the Division issued an En Banc Order in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP. The decision holds that the Division's appellate jurisdiction in inmate appeals is limited to two types
of cases: (1) cases in which an inmate contends that prison officials have erroneously calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the Department has taken an inmate's created liberty interest as
punishment in a major disciplinary hearing.
In his appeal, Appellant does not challenge the calculation of a sentence, sentence-related credits, or custody status.
Further, Appellant is not deprived of a liberty interest as punishment in a major disciplinary hearing. The Department does
not recognize the "Five Percenters" as a religion. Further, it has housed all members of that group in the Special
Management Unit. However, the Department affirms that if Appellant asserts that he is a member of an acknowledged
religion, then it will provide the necessary, dietary requirements as outlined in its policy on "Inmate Religion." (Ps-10.05).
Further, if Appellant thinks the Department is not complying with an order issued by a federal court, then he must seek
relief in that forum. No jurisdiction is authorized to enforce such order.
The failure to provide certain foods does not fall within the jurisdiction of this tribunal. Appellant must seek relief in either
federal court or in circuit court. Accordingly, under McNeil, no jurisdiction exists in the Division to decide the matters
referenced in the Appellant's appeal.
IT IS THEREFORE ORDERED that all relief sought by Appellant in this case is denied and that this case is dismissed
AND IT IS SO ORDERED.
MARVIN F. KITTRELL
Chief Administrative Law Judge
November 29, 2001
Columbia, South Carolina