HENRY MANN V DEPARTMENT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
HENRY MANN,
UNPUBLISHED
February 27, 2007
Plaintiff-Appellant,
v
No. 265323
Ingham Circuit Court
LC No. 04-000776-AA
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
Before: Kelly, P.J., and Davis and Servitto, JJ.
PER CURIAM.
Plaintiff appeals, by delayed leave granted, from an order affirming the Department of
Corrections’ (“DOC”) major misconduct citation against him and dismissing his petition for
relief. We affirm.
Plaintiff is, and was at the time of the incident complained of, a prisoner housed in a
Michigan Correctional Facility. On October 21, 2003, an incident occurred between plaintiff and
a corrections officer, which resulted in plaintiff striking the officer and thereafter being written
up for the major misconduct violation of “Assault Resulting in Serious Physical Injury—Staff
Victim.” At an October 24, 2003 hearing, after the hearing officer reviewed the hearings
investigation report and statements from various witnesses, plaintiff was found guilty of the
misconduct charge of “Assault and Battery—Staff Victim.” Defendant appealed the disciplinary
action to the circuit court, which affirmed the major misconduct citation.
The circuit court’s review of the DOC’s disciplinary decisions is limited to ascertaining
whether the DOC’s action was authorized by law or rule, and whether its decision or order was
“supported by competent, material and substantial evidence on the whole record.” MCL
791.255(4). The circuit court “may affirm, reverse or modify the decision or order or remand the
case for further proceedings.” MCL 791.255(5). This Court’s review of the circuit court’s
decision is, in turn, limited to ascertaining “whether the lower court applied correct legal
principles and whether it misapprehended or grossly misapplied the substantial evidence test to
the agency’s factual findings.” Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d
342 (1996), lv den 456 Mich 902 (1997).
On appeal, plaintiff argues that the procedure employed in his hearing was unlawful and
that the agency decision was not supported by competent, material, and substantial evidence on
the whole record. Specifically, plaintiff directs this Court’s attention to that portion of the
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hearing officer’s ruling wherein the hearing officer indicated doubt as to whether plaintiff was
the aggressor in the incident. Plaintiff suggests that the officer’s acknowledgement that he was
likely not the aggressor entitled him to use force to defend himself against the corrections officer.
We disagree.
The major misconduct report in this matter indicates that corrections officer Miller had
been conducting a strip search of plaintiff when plaintiff struck him in the chest with a closed
fist. Miller reported that he pushed plaintiff away and plaintiff began swinging wildly at him.
According to the report, Miller and two other officers restrained plaintiff and escorted him to
segregation.
At the hearing, plaintiff presented a contrary version of the events the transpired. Plaintiff
contended that Miller pushed and struck him first and that only then did he swing at Miller in
order to defend himself. The hearing officer considered both version of the altercation and
ultimately changed the misconduct charge to assault and battery upon a staff victim. The hearing
office sustained the amended misconduct charge, stating, in part:
Prisoner admits he swung and hit CO Miller during an altercation, the bruise on
Miller’s forehead shows this and CO Norman and CO Kayfes report prisoner was
struggling with Miller and they helped break this up. Charge is changed as there is
considerable doubt prisoner started this altercation. Tellingly, CO Norman, who
was in the room with both of these prisoners [sic], claims he did not see how it
started, [and] gives vague answers on what occurred. This despite the fact he
verifies both the prisoner and the other officer wanted him in this room as there
was a possibility of an [sic] physical conflict.
According to the DOC Hearings Handbook, a prisoner may assert self-defense in a major
misconduct proceeding, under “very narrow circumstances,” and specifies six criteria, all of
which must be met:
(a)
The prisoner must have had physical force used against him/her by
another prisoner or prisoners, or reasonably believed that the use of physical force
against him/her was imminent.
(b)
The prisoner claiming the defense was not the original aggressor.
(c)
The prisoner did not provoke the attacker.
(d)
The use of force was not by mutual agreement.
(e)
The prisoner had no reasonable alternative to the use of force in defending
his/her physical well-being (e.g., retreat or calling for help from staff was not a
possible alternative).
(f)
The prisoner did not use more force than was reasonably necessary for
defense (if the prisoner fought back harder than necessary, s/he would be found
guilty of fighting).
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If any of the above factors are not established to the satisfaction of the hearing
officer, the defense shall not be accepted. The hearing officer, in rejecting the
defense, must specify in writing on the misconduct hearing report which of the
above factors was not proven by the prisoner. [DOC Hearings Handbook (July
1996), pp 42-43.]1
As acknowledged by plaintiff, the above clearly applies only to a prisoner who had
physical force used against him or her by another prisoner. As that did not occur here, plaintiff’s
reliance upon the above is misplaced.
“Assault and Battery” is defined in MDOC policy directive 03.03.105 as: “Intentional,
non-consensual touching of another person done either in anger or with the purpose of abusing or
injuring another; physical resistance or physical interference with an employee. Injury is not
necessary but contact is.” Here, plaintiff freely admits he hit Miller, albeit allegedly only in selfdefense. Given the broad definition of “assault and battery” and given our limited scope of
review, we cannot say the hearing officer’s decision was not supported by competent, material,
and substantial evidence on the whole record or that the trial court, in affirming the decision,
misapprehended or grossly misapplied the substantial evidence test to the agency’s factual
findings.
Plaintiff next alleges that the MDOC’s policy of allowing a prisoner to assert self-defense
only when subjected to physical attack by another prisoner violates his rights to Equal Protection
and Due Process. We disagree.
Due process claims require that a person prove that a state deprived him of a protected
life, liberty, or property interest. In re Wentworth, 251 Mich App 560, 563; 651 NW2d 773
(2002). Similarly, to establish an equal protection claim, a plaintiff must also first establish a
property or liberty interest. Rudolph Steiner School of Ann Arbor v Ann Arbor Charter Twp, 237
Mich App 721, 740; 605 NW2d 18 (1999). “Although a prisoner retains some due process
rights, prison disciplinary proceedings are not clothed with the same constitutional protections as
criminal prosecutions.” Tauber v Department of Corrections, 172 Mich App 332, 336; 431
NW2d 506 (1988). 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). The prisoner is, however,
entitled to notice, an opportunity to present evidence and to make an oral or written argument
before a hearing officer, and a decision based on the preponderance of the evidence. Gee v
Department of Corrections, 235 Mich App 291, 296; 597 NW2d 223 (1999).
Additionally, restrictions on prisoners' rights are constitutional, under both the federal
and our state's constitution, if they are reasonably related to legitimate penological interests.
Turner v Safley, 482 US 78, 89; 107 S Ct 2254; 96 L Ed 2d 64 (1987); Bazzatta v Dep't of
1
Plaintiff reproduces one page of an apparently different edition of this handbook (judging from
the pagination) and appends it to his brief on appeal, but that exhibit ends at subsection (e), and
leaves out the information that immediately follows.
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Corrections Director, 231 Mich App 83, 87-88; 585 NW2d 758 (1998). This is true even
regarding the right to equal protection. Bazzatta, supra at 88. Prison administrators are accorded
wide-ranging deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain institutional
security. Bell v Wolfish, 441 US 520, 547; 99 S Ct 1861; 60 L Ed 2d 447 (1979); Bazzatta, supra
at 87.
In the instant matter, plaintiff was provided his limited Due Process protections during
the hearing. Plaintiff asserted self-defense at the hearing, and while the policy/rule relied upon
only applied in situations regarding prisoner upon prisoner physical attack, the hearing officer
clearly took into consideration plaintiff’s claims. In fact, plaintiff’s charge was changed, in large
part, due to the hearing officer’s perceptions of whether plaintiff had, in fact, employed selfdefense.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Alton T. Davis
/s/ Deborah A. Servitto
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