Custer v. Marquette Prison Warden, Docket No. 60735
| Decision Date | 16 November 1983 |
| Docket Number | Docket No. 60735 |
| Citation | 128 Mich.App. 524,340 N.W.2d 314 |
| Parties | Keith CUSTER, Plaintiff-Appellant, v. MARQUETTE PRISON WARDEN, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Keith Custer, in pro. per.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Paula G. Humphries, Asst. Atty. Gen., for defendant-appellee.
Before V.J. BRENNAN, P.J., and HOLBROOK and ERNST *, JJ.
Plaintiff, an inmate at the Marquette Branch Prison, appeals as of right from a circuit court order dismissing his petition for judicial review of a Department of Corrections hearing officer's finding that plaintiff was guilty of rioting.
Plaintiff contends that the evidence presented at the hearing was insufficient to find him guilty of rioting. The statute which governs Department of Corrections misconduct hearings provides that the decision of the hearing officer must be based on a preponderance of the evidence. M.C.L. Sec. 791.252(k); M.S.A. Sec. 28.2320(52)(k). M.C.L. Sec. 791.255; M.S.A. Sec. 28.2320(55) provides for judicial review of the hearing officer's decisions, to be conducted in accordance with the Administrative Procedures Act. Agency decisions are to be set aside if substantial rights of the petitioner have been prejudiced because, inter alia, the decision is "not supported by competent, material and substantial evidence on the whole record". M.C.L. Sec. 24.306(1)(d); M.S.A. Sec. 3.560(206)(1)(d).
The evidence presented to the hearing officer consisted of the reporting officer's statement that, during the riot of May 26, 1981, he observed plaintiff and several other residents approaching another officer in a threatening manner, but that the residents backed off after a rifle was fired. The reporting officer also stated that an announcement had already been given ordering residents to their cells, but that plaintiff did not return, remaining instead in the riotous yard. Plaintiff, in his petition for judicial review, stated that a violent crowd prevented him from returning to his cell and that he had no recollection of ever seeing the officer he allegedly approached in a threatening manner.
The hearing officer found that plaintiff remained in the yard after all residents were ordered to return to their cells, that his actions disrupted the prison and were a danger to an officer in the yeard and that a shot had to be fired to control plaintiff. The hearing officer's finding was supported by sufficient evidence, as the hearing officer resolved an issue of credibility against plaintiff.
Plaintiff also contends that the hearing officer's written summary of his findings was inadequate. M.C.L. Sec. 791.252(k); M.S.A. Sec. 28.2320(52)(k) provides that "[f]indings of fact * * * shall be accompanied by a concise and explicit statement of the underlying facts supporting them". The hearing officer's findings were sufficient, as he stated the underlying facts supporting the charge of...
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...and a separate clas ification hearing after his hearing on the major misconduct charges. However, in Custer v. Marquette Prison Warden, 128 Mich. App. 524, 340 N.W.2d 314 (1983), the Michigan Appellate Court held that due process does not require a separate classification hearing once a pri......
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Templeton v. Frederick, 86-1400
...Olim v. Wakinekona, 461 U.S. 238, 250 (1983); Walker v. Mintzes, 771 F.2d 920, 932-34 (6th Cir.1985); Custer v. Marquette Prison Warden, 128 Mich.App. 524, 340 N.W.2d 314, 316 (1983). We unanimously agree that oral argument is not necessary in this appeal. Rule 34(a), Federal Rules of Appel......
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Harris-Bey v. Foresman, HARRIS-BE
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