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Michigan: $40,000 Settlement for Parole Violation Sanctions Absent Due Process

by David M. Reutter

A $40,000 settlement was reached in a lawsuit alleging the Michigan Department of Corrections (MDOC) deprived a parolee of his liberty without due process or an opportunity to properly waive his rights.

In his pro se complaint, Scott Andrew Witzke alleged that MDOC officials arrested him twice for parole violations, and that parole official Ebony M. Pullins-Govantes imposed sanctions for those violations. He cited “the sheer arrogance” of the MDOC in failing to provide due process protections.

Witzke was paroled on May 26, 2016, and received a violation around three months later for “residing with a known felon.” He was directed by Parole/Probation Agent Alex J. Smith to relocate to Better Days Aftercare and pay $125 a month of his SNAP (Supplemental Nutrition Assistance Program) benefits to Better Days, which would constitute a violation of federal law that prohibits assigning SNAP benefits to third parties. Witzke did not comply because his parole order had not been amended.

As a result, he was arrested on September 28, 2016 when he reported to Smith’s office. He waived his right to a preliminary hearing, but the waiver form said he had “the right to a full revocation hearing before the Parole and Commutation Board.” Pullins-Govantes decided to continue Witzke’s parole “with a 10-day lockup.” Witzke was released 13 days after his arrest, and his MDOC file reflected two parole violations.

He was again arrested for three technical violations on April 24, 2017. One was for failing to attend a treatment program that was not part of the original May 2016 parole order. On May 3, 2017, Witzke received a new parole order from the Michigan Parole Board that required him to complete a “non-residential” treatment program. He was not released from MDOC custody until September 6, 2017.

Witzke’s suit alleged due process violations under Morrissey v. Brewer, 408 U.S. 471 (1972), because he was deprived of liberty without notice or a hearing. The district court agreed, noting he was kept in custody for almost five months without any of the required due process protections.

MDOC officials argued that Witzke never asked for a hearing. However, the court found “the burden for proving a waiver of the right to a pre-revocation hearing lies squarely with the state actor, not with the parolee.” It concluded that “Parole Violation Specialists are free to bargain with parolees ... [b]ut such bargains must comport with the requirements of due process.” The district court held that Witzke was deprived of liberty without due process or an opportunity to properly waive his rights.

Accordingly, the court granted partial summary judgment to Witzke as to Pullins-Govantes’ liability. The defendants filed an appeal with the Sixth Circuit before a trial on damages was held, then the parties reached a $40,000 settlement on March 20, 2019. 

“Hopefully, my prevailing on the merits of the lawsuit will give prisoners within MDOC (or those former prisoners who have been released within the 2-year statute of limitations period) who never received appropriate due process hearings the incentive to file their own lawsuits for money damages,” Witzke said in a statement to Prison Legal News. See: Witzke v. Pullins-Govantes, U.S.D.C. (E.D. Mich.), Case No. 2:16-cv-13753-AJT-APP. 

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Related legal case

Witzke v. Pullins-Govantes