Van Grimmett v. Warden, Marquette Prison, Docket No. 69809

• Decision Date: 19 October 1984
• Docket Number: Docket No. 69809
• Citation: 136 Mich.App. 237,355 N.W.2d 637
• Parties: Gregory VAN GRIMMETT, Petitioner-Appellant, v. WARDEN, MARQUETTE PRISON, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 637

355 N.W.2d 637

136 Mich.App. 237

Gregory VAN GRIMMETT, Petitioner-Appellant, v. WARDEN, MARQUETTE PRISON, Respondent-Appellee.

Docket No. 69809.

Court of Appeals of Michigan.

Submitted Feb. 22, 1984.

Decided June 8, 1984.

Released for Publication Oct. 19, 1984.

Gregory Van Grimmett, in pro. per.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Eric J. Eggan, Asst. Atty. Gen., for respondent.

Before BRONSON, P.J., and R.B. BURNS and BORSOS, ^* JJ.

PER CURIAM.

Petitioner appeals as of right from a circuit court order affirming a hearing officer's finding that petitioner was guilty of rioting, Department of Corrections major rule violation 022. Petitioner was subsequently reclassified.

In finding petitioner guilty of rioting, the hearing officer relied on three pieces of evidence: a Michigan Department of Corrections misconduct report written by Inspector DeRoche which alleged that petitioner was present in the prison yard during the riot, failed to disperse and return to his cell when ordered to do so, and was eventually bodily removed from the yard and returned to his cell; a report written by Lieutenant Forstrom which, without making any reference to petitioner, described the riot and the methods used to quell it, and indicated that the alleged riotors were eventually forced into G block; and lists indicating that petitioner had been escorted from G block to his own cell after the riot. Petitioner, the only witness to testify at his misconduct hearing, stated that he was coerced by other prisoners into remaining in the prison yard.

Petitioner claims that the department failed to comply with procedural due process by basing a finding of guilt on uncorroborated hearsay and allegations of unidentified witnesses. We agree.

The Michigan Administrative Procedures Act of 1969 (MAPA) provides the standard of judicial review governing Department of Corrections misconduct hearings. Tocco v. Marquette Prison Warden, 123 Mich.App. 395, 398, 333 N.W.2d 295 (1983). The scope of 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 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 to due process notice and some kind of hearing in connection with disciplinary determinations involving serious misconduct. In Tocco, supra, 123 Mich.App. p. 399, 333 N.W.2d 295, this Court noted that the Michigan Legislature has fashioned misconduct hearing procedures designed to comply with the due process mandate of Wolff v. McDonnell, supra. These procedures, set forth in M.C.L. Sec. 791.251 et seq.; M.S.A. Sec. 28.2320(51) et seq., were in effect at the time of the instant hearing.

The statutory provisions are supplemented by the Department of Corrections's own Hearings Handbook (DCHH). DCHH IV(A)(2) provides that the reporting officer should recite exactly what happened, without making assumptions or conclusions; the officer must describe the behavior that constitutes the charge; the hearing officer must have evidence on which to make a decision; and where the reporting officer bases the charge on the direct observations of others, this should be made clear in the report. This rule does not prohibit allegations of misconduct based upon hearsay, but requires the reporting officer to clarify the type of source of the evidence.

Inspector DeRoche's misconduct report describes petitioner's alleged activities as follows:

"At 8:15 p.m. on May 26, 1981, a riot began at MBP. Numerous inmates participated. The riot platoon commander announced on a bullhorn to disperse and return to your cells in the name of the State of Michigan. The above named inmate...