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Torres v. Department of Corrections

Supreme Court of Maine

August 2, 2016

JORGE A. TORRES
v.
DEPARTMENT OF CORRECTIONS

          Submitted On Briefs: June 22, 2016

          Jorge A. Torres, appellant pro se

          Janet 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 Attorney General

         The Department of Corrections did not file a brief

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

          GORMAN, J.

         [¶1] 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 further proceedings.

         I. BACKGROUND

         [¶2] 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.

         [¶3] 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.

         [¶4] 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."

         [¶5] 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.

         [¶6] 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.[1] 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 service.[2]

         Torres requested that the court serve his petition on the Department of Corrections or that it order the Attorney Generals Office to accept ...


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