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Burr v. Bouffard

Superior Court of Maine, Kennebec

March 23, 2015

DOUGLAS BURR, Petitioner,
v.
RODNEY BOUFFARD, et al, Respondent.

ORDER ON RESPONDENTS' MOTION TO DISMISS

M. Michaela Murphy, Justice Maine Superior Court,

Respondents Maine Department of Corrections ("Department"), David Allan, Harold Abbott, Kenneth Vigue, Mark Engstfield, Troy Ross, and Rodney Bouffard move to dismiss the Petition for Review and Complaint of Petitioner Douglas Burr. Count I of the Petition is styled as a M.R. Civ. P. 80C appeal, which requests that the court find the Respondents have continuously and systemically violated the polices and procedures of the Maine Department of Corrections ("Department") and requests that: 1) Mr. Burr be re-classified to medium custody, removed from the Special Management Unit ("SMU"), and transferred to the Windham Correctional Center, 2) have his contact visits re-instated, 3) have his good time re-instated, 4) have the disciplinary infraction expunged from his file, and 5) award him costs and attorney's fees. Count II of the Petition is a "42 U.S.C. § 1983" claim against the Respondents seeking injunctive relief to transfer Mr. Burr from SMU to the Maine Correctional Center. Count II also seeks the payment of Mr. Burr's attorney's fees incurred in bringing the present action. Count III is another 42 U.S.C. § 1983 claim asserted against respondent Mark Engstfield, a corporal at the Maine State Prison, claiming he falsified a disciplinary report causing injury to Mr. Burr.

Respondents assert Count I of the Petition should be dismissed as moot because the Department decided to reverse its decision, restore Mr. Burr's lost good time, refund the fine imposed against him, and expunge his disciplinary record. In other words, Respondents claim the matter is moot because Mr. Burr received all possible relief requested. Respondents also assert that Count II of the Petition fails to state a claim upon which relief can be granted because the disciplinary proceedings and sanctions imposed on Mr. Burr do not implicate his due process rights.[1]

Mr. Burr contends the appeal is not moot because the Department continues to hold him in the SMU based upon the now expunged disciplinary complaint. Mr. Burr further claims his 42 U.S.C. § 1983 claim survives because his confinement in the SMU constitutes an "atypical and significant hardship" triggering the due process clause.

I. Background

Mr. Burr is an inmate at the Maine State Prison. On or about June 12, 2014, Deputy Warden Troy Ross directed that Mr. Burr be removed from the general population at the Maine State Prison and placed on Emergency Observation Status ("EOS") in the SMU. Mr. Burr contends that SMU is the euphemistic name for solitary confinement at the Maine State Prison. Later that day, at 5:45 p.m. Corporal Engstfield allegedly wrote a disciplinary report at the request of Deputy Warden Ross, which ostensibly identified the reasons why Mr. Burr was to be placed in the SMU. Mr. Burr alleges he was not provided a copy of the paperwork placing him on EOS in the SMU and did not sign any paperwork acknowledging that he was being placed on EOS in violation of Department Policy 20.1. Respondents contend Mr. Burr was written up for the disciplinary offense of trafficking.

Mr. Burr also alleges the Shift Supervisor, Captain Ken Vigue, did not acknowledge Corporal Engstfield's report until June 19, 2014 at 18:30 hours. This was more than 168 hours after the alleged behavior was observed or discovered and in violation of Policy No. 20.1.

Corporal Engstfield's report allegedly identified Mr. Burr's Housing Unit as MSP/SMU/B Pod/B 122/B, but Mr. Burr was not assigned to that unit until five days after Corporal Engstfield wrote the report. Furthermore, Corporal Engstfield allegedly based the evidence supporting his report as stemming from a "Confidential Report." Corporal Engstfield, however, indicated that he secured the "Confidential Report" on June 19, 2014, the same date the disciplinary report was acknowledged as received by Captain Vigue. Mr. Burr contends that given the timing of the events, it appears that Corporal Engstfield falsified the information on the June 12, 2104 disciplinary report, which led to Mr. Burr's placement in the SMU.

Respondents contend that a disciplinary hearing was held on June 20, 2014, at which Mr. Burr was found guilty of trafficking and sanctioned the loss of 20 days good time, 20 days disciplinary cell restrictions, and fined $100.00. Mr. Burr timely appealed the decision pursuant to the Administrative Procedures Act, 5 M.R.S. § 11001 and M.R Civ. P. 80C.[2] Mr. Burr contends the untimely nature of this hearing required Captain Vigue to dismiss the Disciplinary Report under Policy No. 20.1.

Following Captain Vigue's review of the Disciplinary Report, the Department scheduled a disciplinary hearing for July 8, 2014. The hearing was subsequently postponed until July 14, 2014, but Mr. Burr allegedly did not receive a continuance form. The hearing officer unit manager David Allan, who allegedly had not received the required training by the State of Maine Attorney General's Office, conducted the hearing. Hearing Officer Allan and Captain Harold Abbot allegedly refused to provide Mr. Burr an opportunity to review and contest the evidence used against him. Hearing Officer Alan subsequently found Mr. Burr guilty of a disciplinary infraction.

Mr. Burr timely appealed the July 14, 2014 decision and on August 8, 2014, Deputy Warden Troy Ross denied Mr. Burr's appeal and affirmed the recommended decision of the disciplinary officer. As noted above, Mr. Burr contends Deputy Warden Ross was the individual who had directed that a disciplinary report be brought against him in the first place. Mr. Burr timely appealed Deputy Warden Ross's decision.

Following the appeal, the Department decided to reverse the aforementioned decision. The Department contends that it restored Mr. Burr's lost good time, refunded the fine imposed, and expunged the discipline from Mr. Burr's record.[3] Furthermore, the Department contends it will reimburse Mr. Burr's filing fee if the case is dismissed. The Department has not, however, permitted Mr. Burr's wife to visit, or moved him out of SMU. As of February 3, 2015, Mr. Burr remained in the SMU and Respondents' counsel indicated there were no plans to remove Mr. Burr therefrom. To the contrary, counsel for Respondents represented that Mr. Burr could be held in the SMU indefinitely.

II. Argument

Respondents move to dismiss Mr. Burr's Petition and Complaint, "[h]owever, if a party files a motion to dismiss and documents outside the pleadings are presented to, and not excluded by, the trial court, [it is] treat[ed] as one for a summary judgment." Libner v. Maine County Comm 'rs Ass 'n, 2004 ME 39, ¶ 7, 845 A.2d 570. Here, while the Respondents did not submit any documents outside the pleadings, their entire motion to dismiss is premised on a contention that is outside the pleadings. Namely, that following Mr. Burr's appeal, the Department decided to reverse its decision imposing disciplinary sanctions on him. Because Mr. Burr does not dispute that the Department reversed its decision, the court will accept this fact as true for purposes of the present motion.

Accordingly, Mr. Burr must establish a prima facie case for each element of his claims in order to survive Respondents' motion. Bonin v. Crepeau, 2005 ME 59, ¶ 8, 873 A.2d 346. In adjudicating Respondents motion, the court views the evidence in the light most favorable to Mr. Burr and must draw all reasonable inferences in his favor. Inkel v. Livingston, 2005 ME 42, ¶ 4, 869 A.2d 745.

A. Whether Count I of the Petition is Moot

Respondents contend the Petition is moot because the Department restored the lost good time, refunded the fine imposed, and expunged Mr. Burr's disciplinary record. The Department also notes that it will reimburse Mr. Burr for any filing fee he has paid. Accordingly, 'the Department contends Mr. Burr's ...


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