Tauber v. Department of Corrections

431 N.W.2d 506, 172 Mich. App. 332
CourtMichigan Court of Appeals
DecidedOctober 17, 1988
DocketDocket 99585
StatusPublished
Cited by3 cases

This text of 431 N.W.2d 506 (Tauber v. Department of Corrections) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tauber v. Department of Corrections, 431 N.W.2d 506, 172 Mich. App. 332 (Mich. Ct. App. 1988).

Opinions

[334]*334Maher, J.

Plaintiff, a prison inmate in the custody of defendant, Michigan Department of Corrections, appeals as of right from the March 11, 1987, opinion and order of the Ingham Circuit Court affirming a hearing officer’s finding that plaintiff was guilty of a major misconduct violation (to wit, "[threatening behavior” in assaulting a fellow inmate). The court held that there was competent, material and substantial evidence to support that finding. We affirm.

The underlying facts of this case, as described in the trial court’s opinion and order, are as follows:

The incident giving rise to disciplinary action being taken against Tauber occurred April 2, 1983, when Tauber admittedly swung wildly at another inmate named Wynn. Tauber explained his behavior by alleging another unknown inmate had entered Tauber’s cell and assaulted him. A second unknown inmate was a "lookout.” When the "lookout” alerted the person assaulting Tauber that the "cops” were coming, the unknown assaulter took off. Tauber explained he was defending himself, and came out of his cell, swinging wildly at Wynn. Wynn was observed by corrections officers as not trying to protect himself at all. Tauber could not identify a photograph of Wynn as the assaulter or the "lookout” at the hearing.

An administrative hearing was held on April 6, 1983, before a hearing officer to determine plaintiff’s guilt of the major misconduct charge. After considering the testimony of plaintiff and the written report prepared by the prison guard who arrived first at the scene, the hearing officer found, in pertinent part:

The actions of the prisoner by his swinging his fists at Wynn constitutes a promise of physical harm toward Wynn. It is found that Wynn did not [335]*335attempt to retaliate in any way. It does not appear that Wynn was the person who attacked this prisoner in his cell since if he had already hit this prisoner, it is doubtful that there would be any reluctance to do so again outside the cell. Based on the direct observations of staff, the violation is sustained.

As a result of the conviction, plaintiff was apparently placed in administrative segregation, was reclassified as a high-risk prisoner, lost disciplinary and good time credits, and his parole was delayed.

Plaintiff thereafter appealed his conviction to the Ingham Circuit Court, arguing that there was insufficient evidence of guilt in that the evidence showed that he had acted in self-defense and that he did not have the requisite intent. He also claimed that the hearing officer "shed his robe of impartiality” when the officer left the hearing at a "crucial moment” to visit the deputies’ office. (Plaintiff speculated that the officer discussed the case with one or more deputies.) Finally, plaintiff argued that he was denied due process because he was prevented from locating witnesses on his behalf and was denied access to the prison law library or to an attorney.

By an opinion and order dated March 11, 1987, the Ingham Circuit Court affirmed the decision of the hearing officer, holding:

Stripped of various unproven allegations of bias, Tauber has done no more than present a fact-finding hearing in which an issue of credibility was resolved against his position. The officer/witnesses saw the threatening behavior against Wynn and that Wynn did not attempt to retaliate. The hearing officer concluded that Wynn was not involved in the attack and therefore Tauber’s defense had no merit. Tauber’s arguments regarding [336]*336being held in administrative segregation do not change the factual nature of the dispute. The consequences of the misconduct hearing findings as related to Tauber’s prisoner classification are beyond the scope of this appeal.
The Court finds the hearing officer’s decision of April 6, 1983 supported by competent, material and substantial evidence on the whole record, and no violation of the other requirements of MCL 24.306; MSA 3.560(206) have been shown.

It is from that opinion and order that plaintiff filed this appeal as of right.

Plaintiff first claims that his right to due process was violated because (1) he was not given the opportunity to call witnesses on his behalf at the hearing, (2) the hearing officer failed to make specific findings as to plaintiff’s claim of self-defense, and (3) he was required to prove self-defense rather than the burden being on defendant to show that there was no self-defense. We find no merit to these claims.

Although a prisoner retains some due process rights, prison disciplinary proceedings are not clothed with the same constitutional protections as criminal prosecutions. A prisoner is not entitled to the same constitutional rights and safeguards that are attendant to proceedings which resulted in the prisoner’s initial loss of liberty. Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974); Dickerson v Marquette Prison Warden, 99 Mich App 630, 635; 298 NW2d 841 (1980). Specifically, prisoners are not constitutionally entitled to full rights of confrontation and cross-examination in connection with disciplinary proceedings. In the interests of safety and to lessen the risks of reprisal, the scope of confrontation and cross-examination afforded to inmates must be left to the sound discretion of the prison authorities. Wolff, supra; [337]*337Casper v Marquette Prison Warden, 126 Mich App 271, 273; 337 NW2d 56 (1983). A prisoner may not personally question a witness, but may submit written questions to the hearing officer to be asked of the witness. MCL 791.252(e); MSA 28.2320(52)(e); Casper, supra, p 273.

In the instant case, plaintiff only submitted two questions to be asked of Sergeant Eidenier (who witnessed part of the incident). Apparently these were asked to plaintiff’s satisfaction. Although plaintiff indicated that other inmates were present, he stated that he did not know who any of them were and never submitted any proposed questions that might be asked. Moreover, there is nothing in the record even showing that plaintiff requested assistance in locating the witnesses. Instead, the report prepared by Sergeant Eidenier indicated that "Mr. Tauber either couldn’t or wouldn’t identify who assaulted him. Mr. Tauber is not willing to prosecute.” Absent some indication on the record that plaintiff requested the presence of certain witnesses or assistance in locating potential witnesses, we cannot say that defendant abused its sound discretion in conducting the disciplinary proceeding with only the oral testimony of plaintiff and the written statements of Sergeant Eidenier.

We also can find no fault with the hearing officer’s findings of fact. According to defendant’s "Hearing Handbook,” as cited by plaintiff in his appellate brief, a hearing officer may accept a claim of self-defense only if he finds that six conditions existed. If the officer rejects the claim, he must specify which conditions were not met. Here, the hearing officer noted that plaintiff’s actions threatened physical harm to Wynn, who did not retaliate, and that Wynn was not the one who initially assaulted plaintiff. Although those [338]*338findings did not address the conditions expressly, we believe it is clear that the officer found that Wynn had not provoked plaintiff, that Wynn had not mutually agreed to the use of force, and that plaintiff had a reasonable alternative to the use of force.

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Related

DeCamp v. Dept. of Corrections
902 A.2d 357 (New Jersey Superior Court App Division, 2006)
Jahner v. Department of Corrections
495 N.W.2d 168 (Michigan Court of Appeals, 1992)
Tauber v. Department of Corrections
431 N.W.2d 506 (Michigan Court of Appeals, 1988)

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Bluebook (online)
431 N.W.2d 506, 172 Mich. App. 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tauber-v-department-of-corrections-michctapp-1988.