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Faulcon v. Ponte

Superior Court of Maine, Kennebec

January 1, 2014




Before the Court is a two-count Complaint and Rule 80C appeal brought by Stephen Faulcon on March 29, 2013. Count I of the Complaint is the 80C appeal; Count II is entitled "Due Process, 14th Amendment, U.S. Constitution." On that same date, Mr. Faulcon through counsel filed a Motion to Specify Course of Proceedings.[1]

Petitioner was at the time of the events that gave rise to this appeal a prisoner at the Maine State Prison (MSP). He was found "guilty" at a disciplinary hearing conducted February 19, 2013 of possession of testosterone, and was disciplined for that violation. He appealed the findings to Deputy Warden Milton Rackliffe who affirmed both the finding of guilt and the recommended discipline on March 5, 2013.

Petitioner does not contest that testosterone is a drug he is prohibited from possessing, or that it was testosterone that was found in a bathroom he was exiting. He is contesting the sufficiency of the evidence on which the disciplinary decision was based, and also alleges certain procedural violations. The Petitioner is represented by Attorney Andrews Campbell, and Commissioner of Corrections Joseph Ponte and Acting Warden of MSP Rodney Bouffard (hereinafter the State), are represented by Assistant Attorney General Diane Sleek.

Standard of Review

The Superior Court must affirm the decision of an agency unless it finds an abuse of discretion, or findings unsupported by substantial evidence in the record.[2] Thacker v. Konover, Dev. Corp., 2003 ME 30, ¶14, 818 A.2d 1013 (citation and quotation marks omitted). The petitioner bears the burden of proving that "no competent evidence supports the [agency's] decision and that the record compels a contrary conclusion." Bischoff v. Maine State Ret. Sys., 661 A.2d 167, 170 (Me. 1995) "Judges must not substitute their judgment for that of the agency merely because the evidence could give rise to more than one result." Gulick v. Board of Environmental Protection, 452 A.2d 1202, 1209 (Me. 1982). Rather, the court will defer to administrative conclusions when based on evidence that "a reasonable mind might accept as adequate to support a conclusion." Id.

In doing so, the court must give great deference to an agency's construction of its own rules and regulations "unless the rules or regulations plainly compel a different result." Rangeley Crossroads Coal v. Land Use Regulation Commission, 2008 ME 115, ¶10, 955 A.2d 223.


The record indicates that at approximately 3:50 p.m. on Sunday, February 10, 2013 Correction Officer Rick Ashby received a phone call from State Investigator John Scheid stating that he had information that a prisoner, Christopher Pelletier "and some others were on their way to or were in the plumbing shop shooting up drugs and I needed to (sic) to the shop and look." Administrative Record (AR), pg 4.[3]

The report of Officer Ashby indicates that shortly after he received this call from Investigator Scheid he arrived at the plumbing shop but it was locked. He opened the door to it, but no prisoners were inside. He stated in the report that "Prisoner Faulcon, S #3162 came walking out of the bathroom talking back towards the bathroom. I stopped Faulcon and asked him who was in the bathroom. Faulcon stated Chris Pelletier. I walked Faulcon into the bathroom and placed him on the wall." Id. pg. 4

Officer Ashby reported that when he entered the bathroom with Faulcon, water was running, and he could smell alcohol swabs. He noted that Inmate Pelletier had his wrist watch in his back pocket but he could see marks on his wrist from the watch. He found an open alcohol swab packet on the ground and in the trash can he found one syringe, two capped needles, one pair of rubber gloves, more packets of alcohol swabs and a vial labeled "Power Trip Test 100" which he indicated was Testosterone Propionate. The vial was full and it was covered by aluminum foil. Later he saw what he believed were needle marks on the "left peck (sic)" of Inmate Pelletier's chest. Id. pg. 4. A photograph of what Officer Ashby was taken. Id. pg. 8.

The matter was referred for disciplinary hearing on February 11, 2013 and Petitioner was provided with a "Letter of Notification of Disciplinary Hearing" on that same date. Id. pg.10. Petitioner signed the Letter and opted for a hearing by circling "Option 2" on that form. He did not, however, indicate whether he was waiving his right to a 24-hour notice of the hearing, whether or not he wanted to be represented, [4] or whether he wished to call any witnesses. Id. pg. 10.

The Summary and Findings issued by Hearing Officer Blakeley after the hearing state only that its findings were "based on staffs (sic) reports", that the prisoner plead "not guilty". In the section called "The prisoner offered the following information:" is written "prisoner did not admit guilt." Id. pg.12. On the second page of that document, it indicates for "recommended disposition" 30 days disciplinary restriction, 30 days loss of good time or deductions, and $100 monetary sanction. It was signed by the Petitioner who indicated on it that he was not waiving his right to appeal. Id. pg. 13

On February 19, 2013 Petitioner appealed the finding of guilty and recommended decision to the Chief Administrative Officer and attached to the appeal form a five-page written statement in which Petitioner described his version of what occurred on the date in question, together with what he says occurred before and during the hearing itself.[5] The appeal was denied on March 5, 2013 and the Decision states "After reading all the reports I agree with the findings."

Sufficiency of Evidence

After considering everything in the record, along with the standard of review, the Court finds sufficient, competent evidence in the record to support the findings of the hearing officer and the final decision of the Commissioner. As noted above, this Court's standard of review is very deferential and the Law Court has specifically held that courts must defer ...

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