Tocco v. Marquette Prison Warden, Docket No. 60692

• Decision Date: 06 May 1983
• Docket Number: Docket No. 60692
• Citation: 333 N.W.2d 295,123 Mich.App. 395
• Parties: Joseph M. TOCCO, Plaintiff-Appellant, v. MARQUETTE PRISON WARDEN, Defendant-Appellee. 123 Mich.App. 395, 333 N.W.2d 295
• Court: Court of Appeal of Michigan — District of US

Page 295

333 N.W.2d 295

Joseph M. TOCCO, Plaintiff-Appellant, v. MARQUETTE PRISON WARDEN, Defendant-Appellee.

Docket No. 60692.

123 Mich.App. 395, 333 N.W.2d 295

Court of Appeals of Michigan.

Submitted Aug. 3, 1982.

Decided Feb. 23, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 396] Joseph M. Tocco, in pro. per.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and J. Peter Lark, Asst. Atty. Gen., Corrections Division, Criminal Appeals Section, for defendant-appellee.

Before V.J. BRENNAN, P.J., and HOLBROOK and ERNST, ^* JJ.

V.J. BRENNAN, Presiding Judge.

On June 2, 1981, a hearing officer found plaintiff guilty of rioting, Department of Corrections major rule violation 022. Plaintiff brought this action for judicial review pursuant to M.C.L. Sec. 24.301 et seq,; M.S.A. Sec. 3.560(201) et seq., seeking[123 MICHAPP 397] to overturn the hearing officer's decision. The circuit court affirmed the action of the Department of Corrections, and plaintiff appeals as of right.

On May 26, 1981, an inmate riot occurred at the Marquette Branch Prison. A body of approximately 100 to 125 inmates disobeyed repeated orders to return to their cells. When the disturbance was eventually brought under control, a list of the residents forcibly removed from the prison yard was compiled for future identification. Subsequently, a misconduct report issued charging plaintiff with participation in the riot. Specifically, the misconduct report alleged that plaintiff remained in the prison yard during the riot, ignoring an order to disperse and return to the lockup. The report further asserted that it was necessary for members of the prison staff to bodily secure plaintiff and return him to his cell.

Plaintiff claimed that he had been playing handball with other inmates when the riot broke out. He further claimed that he was unable to return to his cell as ordered, because certain armed inmates had threatened to harm anyone complying with the order. The hearing officer found that plaintiff had had an opportunity to return to his cellblock when it was secured by officers but had chosen instead to remain among the rioters. On appeal, plaintiff claims that numerous procedural errors were committed by the hearings division and that the hearing officer's decision was not supported by substantial evidence.

In Lawrence v. Dep't of Corrections, 88 Mich.App. 167, 276 N.W.2d 554, lv. den. 407 Mich. 909 (1979), this Court observed that the Department of Corrections is an administrative agency and held that prison disciplinary hearings are "contested cases" for the purposes of the Michigan Administrative [123 MICHAPP 398] Procedures Act of 1969 (hereinafter MAPA). While the MAPA provisions governing procedure in contested cases do not apply to such hearings, Penn v. Dep't of Corrections, 100 Mich.App. 532, 298 N.W.2d 756 (1980), lv. den. 411 Mich. 858 (1981), the judicial review under the MAPA is defined by M.C.L. Sec. 24.306; M.S.A. Sec. 3.560(206), which provides:

"(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:

"(a) In violation of the constitution or a statute.

"(b) In excess of the statutory authority or jurisdiction of the agency.

"(c) Made upon unlawful procedure resulting in material prejudice to a party.

"(d) Not supported by competent, material and substantial evidence on the whole record.

"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.

"(f) Affected by other substantial and material error of law.

"(2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings."

In Wolff, Warden v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court ruled that a state prisoner was entitled under the due process clause of the Fourteenth Amendment to notice and some kind of hearing in connection with disciplinary determinations involving serious misconduct. Parshay v. Dep't of Corrections, 61 Mich.App. 677, 680 233 N.W.2d 139 (1975). In Wolff, [123 MICHAPP 399] the prisoner had been faced with a loss of "good time". However, the due process right to a hearing in Michigan has been broadened to encompass any situation in which a prisoner may be "deprived of a right or significant privilege". DeWalt v. Marquette Warden, 112 Mich.App. 313, 316, 315 N.W.2d 584 (1982). Such a hearing must include: (1) advance written notice of the charges at least 24 hours prior to the disciplinary hearing; (2) a written statement by the factfinder explaining the reason for any disciplinary action, such statement to be supplied to the prisoner; and (3) the opportunity to call witnesses and present documentary evidence if this would not be unduly hazardous to institutional safety or correctional goals. Wolff v. McDonnell, supra. The Michigan Legislature has recently fashioned misconduct hearing procedures designed to comply with the due process mandate of Wolff v. McDonnell. M.C.L. Sec. 791.251 et seq.; M.S.A. Sec. 28.2320(51) et seq., effective February 1, 1980. Thus, where a hearing is arguably violative of procedural due process, a prisoner has both a claim actionable under 42 U.S.C. Sec. 1983, Dickerson v. Marquette Warden, 99 Mich.App. 630, 636-635, 298 N.W.2d 841 (1980), and an independent issue for appellate review under the MAPA, M.C.L. Sec. 24.306(1)(c); M.S.A. Sec. 3.560(206)(1)(c).

Plaintiff's initial complaint is that he was denied access to relevant documents which he had requested, specifically reports and statements of the prison officials mentioned in the May 29, 1981, misconduct report. This report, completed by an official called a "reviewing officer", contains "yes" and "no" boxes which are to be appropriately checked according to whether the resident requests a hearing investigator, witnesses, or relevant documents. The reviewing officer checked the [123 MICHAPP 400] "no" box under the category of relevant documents. Since plaintiff claims that he directed his request for documents to the hearing investigator, who was not assigned until after the misconduct report was completed, such a request would not appear on the report.

The Hearings Handbook, which contains specific procedural provisions supplementing those of M.C.L. Sec. 791.251 et seq.; M.S.A. Sec. 28.2320(51) et seq., makes the following provisions with regard to inmate access to documents: "This means that a resident who requests a specific document may receive a copy of it if: (1) it is used as evidence at the hearing, even if the hearing officer does not specifically base his/her decision on that document; and, (2) its disclosure does not present a threat to personal or institutional safety." Again, plaintiff's request was for reports and statements of the prison officials mentioned in the misconduct report. A three-page memorandum from Lt. Forstrom, one of these witnesses, became part of the hearings record. This report is dated June 1, 1981, the day before the hearing. Unrebutted allegations in plaintiff's brief indicate that he did not receive a copy of this document; in fact, it appears that plaintiff did not learn of the...