Spruytte v. Owens, Docket No. 124171

• Decision Date: 20 June 1991
• Docket Number: Docket No. 124171
• Parties: Floyd J. SPRUYTTE, Jr., and Norma J. Spruytte, Plaintiffs-Appellants, v. Anthony OWENS, Department of Corrections Hearing Officer, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 382

475 N.W.2d 382

190 Mich.App. 127

Floyd J. SPRUYTTE, Jr., and Norma J. Spruytte, Plaintiffs-Appellants, v. Anthony OWENS, Department of Corrections Hearing Officer Defendant-Appellant.

Docket No. 124171.

Court of Appeals of Michigan.

Submitted Nov. 6, 1990, at Grand Rapids.

Decided April 30, 1991.

Approved for Publication

June 20, 1991, at 9:25 a.m.

Released for Publication Oct. 28, 1991.

Floyd J. Spruytte, Jr., in pro. per.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and A. Peter Govorchin, Asst. Atty. Gen., for defendant-appellant.

Before NEFF, P.J., and MAHER and HOOD, JJ.

PER CURIAM.

Plaintiffs appeal as of right from a circuit court order dismissing their action against defendant on the ground that defendant possessed absolute immunity. MCR 2.116(C)(7). We reverse and remand.

Plaintiff, ¹ an inmate of the Ionia Correctional Facility, brought the instant pro se action under 42 U.S.C. Sec. 1983, seeking declaratory and injunctive relief, together with money damages, against a Department of Corrections hearing officer in both his individual and official capacities. Defendant had conducted an administrative hearing on plaintiff's claim that he was improperly denied possession of an electronic typewriter. Following the hearing, defendant issued a decision declaring that the typewriter was properly rejected because it did not comport with Policy Directive BCF-53.01, Sec. III(B)(5), which provides that a prisoner may possess an "electric/electronic typewriter" if it is purchased through the institution and the purchase price does not exceed $400. Specifically, defendant found that the typewriter had not been purchased through the institution, while also noting that plaintiff had insured it for $750. However, defendant did indicate that plaintiff could order the item through the approved institutional procedure and vendor.

Plaintiff's first amended complaint alleged that under 1979 AC, R 791.6637(4) he enjoyed a state-created, constitutionally protected property interest in receiving the typewriter and that the rejection of the typewriter for reasons other than those authorized by Rule 791.6637(4) deprived him of a protected property interest without due process of law, contrary to both the federal and state constitutions. Plaintiff requested a declaratory finding that defendant's actions violated his constitutional rights, a permanent injunction enjoining defendant from similarly violating his constitutional rights in the future, and money damages.

Relying on Shelly v. Johnson, 849 F.2d 228 (CA 6, 1988), the trial court granted defendant's motion for summary disposition under MCR 2.116(C)(7) on the ground that defendant was absolutely immune from suit.

Plaintiffs now appeal as of right, claiming that defendant was not the type of hearing officer to which a defense of absolute immunity is available. We agree.

Judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their respective judicial, legislative, and executive authority. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 592, 363 N.W.2d 641 (1984). In Shelly, supra, the Sixth Circuit Court of Appeals determined that a Michigan prison hearing officer appointed and acting pursuant to M.C.L. Sec. 791.251 et seq.; M.S.A. Sec. 28.2320(51) et seq. was entitled to absolute immunity. Adopting the reasoning of the district court, the Sixth Circuit stated:

"The immunity of hearing officers has not always been clear. In Cleavinger v Saxner, 474 US 193; 106 SCt 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 US 478 [98 S.Ct. 2894, 57 L.Ed.2d 895] (1978) as characteristic of absolute judicial immunity were absent....

* * * * * *

[U]nlike the members of the discipline committee in Cleavinger, supra, the Michigan prison hearing officer is an attorney especially appointed to conduct prison disciplinary hearings as a full time judicial officer, wholly independent of the warden and other prison officials in the prison in which he conducts his hearings. He is guided by strict statutory procedural rules and his decision is subject to appellate review in the Michigan courts. His role for all practical purposes is similar to that of an administrative law judge and as such he should be entitled to absolute judicial immunity for the very reasons recognized by the court in Butz v Economou, supra."

Thus, the court in Shelly relied on the statutorily defined duties and role of Michigan prison hearing officers in reaching its conclusion that they were entitled to absolute immunity. In the instant case, however, it is undisputed that defendant is not a statutory hearing officer under M.C.L. Sec. 791.251; M.S.A. Sec. 28.2320(51). Rather, defendant is a resident unit manager who conducted an administrative hearing under 1979 AC, R 791.3301 et seq. Defendant is not required to be an attorney, and his duties are not classic adjudicatory ones. Further, defendant works under the supervision of the deputy warden, not a statutorily created hearings division. Thus, defendant does not have the independence ascribed to members of the judiciary that would make him detached and neutral. Finally, the type of hearing that occurred in the instant case, i.e., review of a determination to disallow receipt of certain personal property, is not the kind encompassed under M.C.L. Sec. 791.251; M.S.A. Sec. 28.2320(51). See Spruytte v. Dep't of Corrections, 184 Mich.App. 423, 430-432, 459 N.W.2d 52 (1990). In sum, the concerns present in the instant case are the same as those in Cleavinger, supra, wherein the Supreme Court found that the federal discipline committee members did not have absolute immunity. We conclude, therefore, that the trial court erred when it dismissed plaintiffs' complaint on the ground that defendant was absolutely immune from suit.

Plaintiffs also contend that defendant is not entitled to qualified immunity. Although raised below, the trial court did not reach this issue. Generally, this Court will not review issues that were not raised and decided by the trial court. Providence Hosp. v. Nat'l Labor Union Health & Welfare Fund, 162 Mich.App. 191, 194, 412 N.W.2d 690 (1987). However, this Court may properly review an issue if the question is one of law and the facts necessary for its resolution have been presented. Id.

In Guider v. Smith, 431 Mich. 559, 565, 431 N.W.2d 810 (1988), our Supreme Court held that the test announced in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), was the proper test regarding claims of qualified immunity under 42 U.S.C. Sec. 1983 actions. Under this test, a government official performing discretionary functions is entitled to immunity from damages "insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Guider, supra, 431 Mich. at p. 565, 431 N.W.2d 810. ²

In the present case, plaintiff claims he enjoyed a protected property interest in possessing the subject typewriter pursuant to Rule 791.6637(4). We agree. This rule provides:

A resident may keep personal property in his or her housing unit, subject to reasonable regulations to safeguard the public health and the security, order, and housekeeping of the facility.

Pursuant to this rule, state law grants plaintiff the right to hold personal property that fits reasonable regulations of public health and security. Spruytte v. Walters, 753 F.2d 498, 506 (CA 6, 1985), cert. den.474 U.S. 1054, 106 S.Ct. 788, 88 L.Ed.2d 767 (1986); Spruytte, supra, 184 Mich.App. at 426, 459 N.W.2d 52. Moreover, because an official's discretion to prohibit receipt of property pursuant to this rule is restricted by "specific substantive predicates," (i.e., property must pose a threat to public health or the security, order, or housekeeping of the facility) the interest created by the rule is a protected one. See Spruytte, supra, 184 Mich.App. at 426-428, 459 N.W.2d 52; also see Spruytte, supra, 753 F.2d at 507. When a state creates an entitlement and provides that it may not be defeated except upon a finding of a specific substantive predicate, the state's defeat of that entitlement without such a finding is a violation of due process. Id., at pp. 508-509.

Rather than relying on the criteria of Rule 791.6637(4), the defendant in this case denied plaintiff's request to possess an electronic typewriter on the basis of PD-BCF-53.01. It is undisputed that this policy directive was not promulgated pursuant to the rule-making provisions of the Administrative Procedures Act, M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. Both this Court and our Supreme Court...