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Petitioner v. Maine Department of Corrections

Superior Court of Maine, Kennebec

February 25, 2019

MICHAEL PARKER Petitioner
v.
MAINE DEPARTMENT OF CORRECTIONS, Respondent.

          Plaintiff's Attorney Michael J. Parker, Pro Se

          Defendant's Attorney Jim Fortin, AAG

          DECISION AND ORDER

          William R. Stokes, Justice

         INTRODUCTION

         The matter before the court is an appeal by Michael Parker, an inmate at the Maine State Prison ("MSP"), from a disciplinary proceeding that resulted in the imposition of sanctions against him for the offense of "trafficking," a Class A violation under the Prisoner Discipline Policy. This appeal has been brought in accordance with 5 M.R.S. §§ 11001-11008 (Administrative Procedure Act) and Maine Rule of Civil Procedure 8OC.

         FACTUAL BACKGROUND

         On February 2, 2018, Michael Parker ("Parker" or "Petitioner"), an inmate at MSP, was notified of a disciplinary hearing scheduled to occur February 8, 2018, for a trafficking violation.[1] (Certified Record ("C.R.") 1.) The alleged incident occurred on January 20, 2018. (C.R. 2.)

         According to the Maine Department of Corrections' ("MDOC") Disciplinary Report, on January 20, 2018, Julie McAssey ("McAssey"), a visitor to MSP, was stopped by the Special Investigations and Intelligence office ("SII") and questioned about trafficking Suboxone. (C.R. 2.) McAssey admitted to swallowing five strips of Suboxone in the lobby when confronted by officers. (C.R. 2.) The Disciplinary Report references an attached report "for full details." (C.R. 2.) That attached report was filed under seal in this court for in camera review. The following details come from the confidential report.

         On December 1, 2017, SII was informed by a confidential informant that trafficking was occurring at MSP. Based on this information SII surveilled visits and telephone conversations between McAssey and prisoner J.S.. They discussed plans to traffic Suboxone into MSP. They additionally discussed how to have Tammy Shaw ("Shaw")/ who sometimes rode with McAssey to MSP, bring in Suboxone to Parker, whom Shaw visited. At least once, J.S. and McAssey discussed whether it was "confirmed" that Shaw would bring Suboxone to Parker. On December 14, 2017, Parker asked Shaw whether she would traffic contraband into MSP for him and attempted to convince her to do so by using money as a lure and telling her that there was nothing to think about. McAssey and J.S. had conversations later in the month about whether Shaw was "going to do it." Ultimately, Shaw never brought drugs into MSP.

         On February 22, 2018, the disciplinary hearing occurred. (C.R. 6-8.) According to the hearing summary, Parker pled not guilty, declined to make a statement "because there maybe [sic] outside charges," and indicated that the witnesses he had listed were not needed. (C.R. 6.) Based on the "staff[']s detailed report, "[2] the Hearing Officer ("HO") found Parker guilty of trafficking. (C.R. 6.) On the same date, Parker signed the summary on the third page, and did not waive his right to appeal. (C.R. 8.)

         After receiving the hearing summary, a prisoner has fifteen days to appeal the decision to the Chief Administrative Officer.[3] MDOC Policy 20.1, Proc. C(I7). Upon timely appeal, the Chief Administrative Officer will review the appeal, and may affirm, modify, or reverse the decision. MDOC Policy 20.1, Proc. C(I9), (21). The prisoner must be notified of the Warden's decision on appeal in writing. MDOC Policy 20.1, Proc. C(22). Nothing in the Certified Record, nor anything provided by Parker other than his own unsworn statements, indicates that he pursued a timely appeal in accordance with the Prisoner Discipline Policy. If the prisoner fails to submit a timely appeal, no appeal will be considered. MDOC Policy 20.1, Proc. C(I8). Staff are required to maintain appropriate records for all cases in which a prisoner is found guilty. MDOC Policy 20.1, Proc. C(24).

         DISCUSSION

         The Law Court has frequently reaffirmed the principle that judicial review of administrative agency decisions is "deferential and limited." Passadumkeag Mountain Friends v. Bd. of Envtl. Prot, 2014 ME 116, ¶ 12, 102 A.3d 1181 (quoting Friends of Lincoln Lakes v. Bd. of Envtl Prot, 2010 ME 18, ¶ 12, 989 A.2d 1128). The court is not permitted to overturn an agency's decision "unless it: violates the Constitution or statutes; exceeds the agency's authority; is procedurally unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or error of law; or is unsupported by the evidence in the record." Kroger v. Dept. of Envtl Prot, 2005 ME 50, ¶ 7, 870 A.2d 566. The party seeking to vacate a state agency decision has the burden of persuasion on appeal.

          Anderson v. Maine Public Employees Retirement System,2009 ME 134, ¶ 3, 985 A.2d 501. In particular, a party seeking to overturn an agency's decision bears the burden of showing that "no competent evidence" supports it. Stein v. ...


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