Shelly v. Johnson

• Citation: 849 F.2d 228
• Decision Date: 14 June 1988
• Docket Number: No. 87-1891,87-1891
• Parties: Lawrence William SHELLY, Plaintiff-Appellant, v. Perry M. JOHNSON, Jack Bergman, Marjorie VanOchten, William O'Connor, and Jerry Sherman, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 228

849 F.2d 228

Lawrence William SHELLY, Plaintiff-Appellant, v. Perry M. JOHNSON, Jack Bergman, Marjorie VanOchten, William O'Connor, and Jerry Sherman, Defendants-Appellees.

No. 87-1891.

United States Court of Appeals Sixth Circuit.

Submitted May 16, 1988.

Decided June 14, 1988.

Lawrence William Shelly pro se.

Chester S. Sugierski, Jr., Asst. Atty. Gen., Corrections Div., Edgar L. Church, Jr. (on brief), Lansing, Mich., for defendants-appellees.

Before ENGEL, Chief Judge; ^* NELSON, Circuit Judge; and

PORTER, ^** Senior District Judge.

PER CURIAM.

Lawrence William Shelly appeals the grant of summary judgment by the United States District Court for the Western District of Michigan in favor of the defendants.

Appellant, an inmate at the Michigan Intensive Program Center (MIPC) in Marquette, Michigan and in custody of the Michigan Department of Corrections filed this 42 U.S.C. Sec. 1983 action against appellees, Perry Johnson, former Director of the Michigan Department of Corrections, Jack Bergman, Superintendent at MIPC, Marjorie VanOchten, the Hearing Administrator for the Department, Officer William O'Connor, and Hearing Officer Jerry Sherman. Appellant alleged that Johnson, Bergman, and VanOchten were made aware of corrupt practices in their respective departments but failed to do anything about them. Appellant also alleged that staff members filed false misconduct reports which resulted in subsequent hearings detrimental to him. Appellant further alleged that he had been subject to harassment since bringing his allegations of false misconduct reports to the attention of senior officials. Finally, appellant claimed that Officer O'Connor threatened him and pointed a revolver at him without justification.

On August 14, 1987 the district court granted the defendants' motion for summary judgment. The district judge held that defendant Jerry Sherman, a Michigan hearing officer under M.C.L. Secs. 791.251 through 791.255, was entitled to absolute judicial immunity in relation to actions taken in his capacity as hearing officer and that all of the allegations in the complaint related to actions taken in Sherman's official capacity. The judge next held that plaintiff's conclusory claim regarding decisions of hearing officers was unsupported and stated no constitutional violation. Third, the district judge held that there was no basis for the allegations that the named defendants had been made aware of any corrupt practices in their respective departments. Fourth, it was determined that none of the supervisory officials had participated in harassment of the appellant. Finally, assuming plaintiff's allegation that Officer O'Connor had pointed a revolver at him without justification from the other side of the bullet-proof glass in the Control Center to be true, the circumstances surrounding the incident precluded a finding that the officer's actions amounted to cruel and unusual punishment.

Appellant, proceeding pro se, argues that the district court erred in granting summary judgment. The appellees argue that the district court committed no error.

In a careful opinion, Chief Judge Hillman denied the relief sought by plaintiff under 42 U.S.C. Sec. 1983 granting summary judgment in favor of all defendants after concluding from a review of the file exhibits and uncontradicted affidavits that there was no genuine issue of material fact remaining to be litigated. Of particular interest was Chief Judge Hillman's conclusion that recent changes in Michigan statutory law embodied in 1979 Mich.Pub.Act No. 140 conferred upon prison hearing officers the type of independence and responsibility which was consistent with the grant to them of absolute immunity from liability with respect to their judicial acts. See M.C.L. 791.251-255 M.S.A. 28.2320(51)-28.2320(55). As Judge Hillman stated:

The immunity of hearing officers has not always been clear. In Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496 (1985), the court held that the members of a federal prison discipline committee, who hear cases in which inmates are charged with infractions of institutional rules, are entitled only to qualified, rather than absolute, immunity from suits alleging that they have violated prisoners' constitutional rights. The court emphasized that the several factors mentioned in Butz v. Economou, 438 U.S. 478 [98 S.Ct. 2894, 57 L.Ed.2d 895] (1978) as characteristic of absolute judicial immunity were absent. The court indicated that the members of the discipline committee were not professional hearing officers...