JORGE A. TORRES
DEPARTMENT OF CORRECTIONS
Submitted On Briefs: June 22, 2016
A. Torres, appellant pro se
T. Mills, Attorney General, James E. Fortin, Asst. Atty.
Gen., and Diane E. Sleek, Asst. Atty. Gen., Office of the
Attorney General, Augusta, for amicus curiae Office of the
Department of Corrections did not file a brief
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and
Jorge A. Torres appeals from an order of the Superior Court
(Knox County, Billings, J.) dismissing, for failure
to pay an initial partial filing fee, Torres's petition
seeking judicial review of a final Department of Corrections
decision. We vacate the judgment and remand the case for
This case has an exceedingly muddled procedural history,
compounded by confounding actions by the Department of
Corrections. In an effort to ensure that this series of
events is not repeated, we describe the events that occurred
in some detail.
Torres is incarcerated at the Maine State Prison. On July 20,
2015, pursuant to 5 M.R.S. §§ 11001-11008 (2015)
and M.R. Civ. P. 80C, he filed a petition in the Superior
Court (Knox County) for judicial review of a final Department
of Corrections decision finding him guilty of the
disciplinary offense of tattooing. With the petition, he
filed an application to proceed without payment of fees, an
indigency affidavit, and a certified prisoner account
statement. See 4 M.R.S. § 1058(1) (2015); M.R.
Civ. P. 91(a)(1), (2). The account statement showed that he
had $0.03 available in his general account, that the average
monthly balance in that account during the previous six
months was $3.14, and that the average monthly deposits
during those months equaled $25.83.
In an order dated July 22, 2015, the court (Billings,
J.) found that Torres's application to proceed
without payment of fees was complete, that the petition for
review was not frivolous, and that Torres was proceeding in
good faith. Based on the information in Torres's account
statement, the court ordered him to pay an initial partial
filing fee of $5.16 by August 12, "failing which the
matter shall be dismissed for lack of prosecution."
Through a motion dated July 29, but not received by the court
until August 7, 2015, Torres requested that the court
"clarify prisoner funds and inability to pay partial
filing fee, " arguing that because he did not have the
means to pay the initial partial filing fee, the court could
not prevent him from proceeding with his petition for review.
He included an updated certified account statement showing
that he had no money available in his general account, that
the average monthly balance during the previous six months
was $2.15, and that the average monthly deposits during those
months was $25.83.
At the same time, Torres filed a "motion on acceptance
of service" and a "motion to request service."
In these motions, he asserted that he was unable to pay for
service by certified mail as required by 5 M.R.S. §
11003(1), but had mailed four copies of his petition, eight
copies of service acknowledgement forms, four self-addressed
stamped envelopes, and a letter, by ordinary first class
mail, to the Assistant Attorney General representing the
Department. Attached to one of these motions was a
letter Torres received from the Departments counsel after he
attempted to serve the Department by regular mail. The
letter, dated July 1, 2015, states:
I am responding to your letter dated June 26, 2015 asking me
to accept service by regular mail of a Rule 80C that you may
have filed in court.
I have checked your facility account and have been told that
you received $100.00 as recently as May 11, 2015 and then
proceeded to spend most of it on canteen purchases on May 15
and May 21. Therefore, I will not accept
requested that the court serve his petition on the Department
of Corrections or that it order the Attorney Generals Office
to accept ...