DeWalt v. Warden, Marquette Prison

• Decision Date: 22 February 1982
• Docket Number: Docket No. 53390
• Citation: 315 N.W.2d 584,112 Mich.App. 313
• Parties: Kevin L. DeWALT, Plaintiff-Appellant, v. WARDEN, MARQUETTE PRISON, Defendant-Appellee. 112 Mich.App. 313, 315 N.W.2d 584
• Court: Court of Appeal of Michigan — District of US

Page 584

315 N.W.2d 584

Kevin L. DeWALT, Plaintiff-Appellant, v. WARDEN, MARQUETTE PRISON, Defendant-Appellee.

Docket No. 53390.

112 Mich.App. 313, 315 N.W.2d 584

Court of Appeals of Michigan.

Submitted Oct. 8, 1981.

Decided Jan. 6, 1982.

Released for Publication Feb. 22, 1982.

[112 MICHAPP 314] Kevin L. DeWalt, in pro. per.

Before ALLEN, P. J., and KELLY and KELLEY, ^* JJ.

PER CURIAM.

Plaintiff appeals the trial court's order affirming a decision of the Department of Corrections, security classification committee, which placed plaintiff into administrative segregation[112 MICHAPP 315] and transferred him from the State Prison at Southern Michigan (SPSM) to the Marquette Branch Prison (MBP).

On December 2, 1977, at SPSM, plaintiff began serving a 10 to 15 year sentence for manslaughter plus a consecutive term of 32 to 48 months for a 1975 attempted escape from a county jail.

On December 18, 1979, plaintiff was charged with misconduct for an alleged assault on another inmate. On December 26, 1979, a misconduct hearing was held and plaintiff was found not guilty because of insufficient evidence. On the same day, the security classification committee placed plaintiff into more restrictive administrative segregation and ordered his transfer to MBP, based on the alleged assault, the 1975 escape attempt and the fact that plaintiff had made a good adjustment during a previous stay at Marquette. On January 23, 1980, plaintiff was transferred to MBP where he presently resides.

Plaintiff filed a grievance contesting the transfer on the ground that it was based on the misconduct charge of which he had been found not guilty. The grievance was ultimately denied.

Plaintiff, who has been acting in propria persona throughout these proceedings, then filed in the Marquette County Circuit Court a document entitled "Petition for Order of Show Cause for Injunctive Relief", naming the Marquette Warden as respondent. Plaintiff sought return to SPSM, restoration to the level of custody which existed prior to December 18, 1979, and expunction of all reference to misconduct allegations arising out of the December 18, 1979, incident.

The trial court treated the matter as an appeal from an administrative decision pursuant to the Administrative Procedures Act of 1969 (APA), [112 MICHAPP 316] M.C.L. § 24.201 et seq; M.S.A. § 3.560(101) et seq, and affirmed the denial of plaintiff's grievance.

The trial court correctly treated this as an appeal pursuant to the APA. M.C.L. § 791.255; M.S.A. § 28.2320(55), Penn v. Dep't of Corrections, 100 Mich.App. 532, 539, 298 N.W.2d 756 (1980), lv. den. 411 Mich. 858 (1981).

Therefore, a reviewing court is required to apply the standard of review provided in M.C.L. § 24.306; M.S.A. § 3.560(206).

Plaintiff contends that his rights were violated because his transfer was based on misconduct charges of which he was subsequently acquitted.

The United States Supreme Court in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), reh. den., 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976); and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), held that the transfer of state prisoners from one state institution to another state institution in which conditions were less favorable to the prisoners did not infringe upon a liberty interest of the prisoners within the meaning of the due process clause of the Fourteenth Amendment, absent a state law or practice conditioning such transfers on proof of serious misconduct or the occurrence of other events.

In Michigan, a prisoner is entitled to a hearing before being deprived of a right or significant privilege. MCL 791.251; MSA 28.2320(51). Dickerson v. Warden, Marquette Prison, 99 Mich.App. 630, 298 N.W.2d 841 (1980).

In Stone v. Egeler, 377 F.Supp. 115 (1973), modified on other grounds 506 F.2d 287 (CA 6, 1974), the United States District Court for the Western District of Michigan extended the right to a hearing to prisoners faced with transfer to another [112 MICHAPP 317] institution. That case involved a civil rights action brought by two prisoners who had been suspected of being involved in illicit drug traffic at SPSM and as a result were transferred to the maximum security prison at Marquette. The court held that the transfers were disciplinary in nature and occasioned serious and substantial deprivations and that failure to grant a hearing on the ...