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Wiggins v. Maine Department of Corrections

Superior Court of Maine, Kennebec

May 16, 2019

CALVIN WIGGINS, Petitioner
v.
MAINE DEPARTMENT OF CORRECTIONS, Respondent.

          Plaintiffs Attorney Calvin Wiggins, Pro Se Maine State Prison

          Defendant's Attorney Jim Fortin, AAG

          DECISION AND ORDER

          William R. Stokes Justice.

         INTRODUCTION

         The matter before the court is an appeal by Calvin Wiggins, an inmate at the Maine State Prison ("MSP"), from a disciplinary proceeding that resulted in the imposition of sanctions against him for the following offenses: Trafficking; Possession, Other; and Community Release 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 August 29, 2018, Kevin Dionne[1] and Corporal Silveira searched Room 4 in Dorm II at the Mountain View Correctional Facility ("MVCF") while Calvin Wiggins ("Petitioner") was at work. (Certified Record ("C.R.") 3, 20.) The Petitioner was one of three prisoners assigned to the room. (C.R. 3; Pet'r's Compl.) During the search, the officers found a white box under a heat register on Petitioner's side of the room with "EZ" written on the top. (C.R. 3, 10.) It was alleged in the Disciplinary Report ("Report") that Wiggins is also known by the name "EZ." (C.R. 3.) A pair of rolled up socks was inside the box. (C.R. 3.) The socks were labeled with "Downeast Correctional, Wiggins, C. 29944[2]" (C.R. 3, 9.) Inside the socks was a rubber glove containing what felt like loose tobacco. (C.R. 3.) A field test showed that the substance was synthetic marijuana. (C.R. 3.) The officers searched the Petitioner's locker and found pepperoni and an onion, which they believed were stolen from the kitchen, and other miscellaneous items they described as contraband. (C.R. 3, 7, 11-12.) The Report lists the following violations: (1) Community Release Violation; (2) Possession, Contraband; (3); Theft ($25 or less); (4) Trafficking; and (5) Possession, Other. The Report is not signed or dated.[3] (C.R. 4.)

         On August 30, 2018, the Report was reviewed, approved, and forwarded to security staff for investigation. (C.R. 5.) An investigation occurred on the same day. (C.R. 5.) Sergeant Kent Commeau took the Petitioner's statement, which he recorded as "no comment." (C.R. 5.) The Petitioner alleges that no investigation took place, he never said "no comment" to an investigator, and that his signature on the investigation form is forged. The Petitioner was notified on September 14, 2018, of a disciplinary hearing to be held on September 18. (C.R. 1.) The Petitioner listed two MVCF prisoners as witnesses. (C.R. 1.) The court interprets the witnesses named in the Letter of Notification of Disciplinary Hearing to refer to the Petitioner's cellmate and another inmate in the "SCC" program.[4] (C.R. 1.)

         The hearing occurred on September 18, 2018, and the Petitioner pled not guilty to all the violations. (C.R. 14.) No witnesses testified and the Hearing Officer ("HO") wrote that, per the Petitioner, the witnesses listed were not needed. (C.R. 14.) The Petitioner submitted a written statement to the HO at the hearing. (C.R. 22.) The HO found the Petitioner guilty of the following violations: Community Release Violation; Trafficking; and Possession, Other. (C.R. 14.) The HO based his finding of guilt on the officer's Report, but noted that the write-up had been overcharged. (C.R. 15.) The Petitioner signed the Notification of Right to Appeal, which is the final page of the Disciplinary Hearing Summary, at the end .of the hearing. (C.R. 17.) The Petitioner appealed on October 1, 2018, stating that he was denied his witnesses, the Report was not forwarded from MVCF to MSP but staff "pushed" the action forward, there were typos within the Report and it was not signed, no physical evidence supported a finding of guilt, and no investigation occurred, among other issues. (C.R. 18-21.) The Chief Administrative Officer affirmed the HCKs decision and disposition on October 9, 2018, and notification of the same was provided to the Petitioner on October 17, 2018. (C.R. 23.)

         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. Deft. 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. Me. Crim. Justice Academy, 2014 ME 82, ¶ 11, 95 A.3d 612.

         On November, 11, 2018 the Petitioner filed his Petition for Judicial Review of Final Agency Action. In his subsequent briefing he argues that MDOC wrongfully denied him witnesses, did not follow its own policies, and that substantial evidence did not support the HO's decision. For its part, MDOC contends that the Petitioner waived his request for witnesses, and even if he did not, he has not shown prejudice by being denied witnesses. MDOC also maintains that any irregularities in the Report did not require its dismissal and sufficient evidence supported the HO's finding of guilt.

         I. The Witness Issue

         The Petitioner alleges that he requested to call officers Dionne and Ritano, and Sergeant Commeau as witnesses. Had they appeared at the hearing, he would have asked them for a copy of the test results, the chain of custody forms, and who entered the Investigation Report because his signature on it is forged. The Petitioner claims that the HO said he would not call the witnesses because it would be impossible for him to get them to MSP from MVCF. MDOC argues that the Petitioner waived his right to have the witnesses testify when he told the HO that they were not needed and neither his written statement submitted at the hearing, nor his briefing, describes information that the witnesses would have provided to the HO that would bear on his guilt or innocence.

         Title 34-A provides that a prisoner has the right to an impartial hearing when punishment may affect his sentence, labor, or other rights. § 3032(6). At this hearing, the prisoner "is entitled to call one or more witnesses, which right may not be unreasonably withheld or restricted." § 3O32(6)(D). Witnesses that are physically outside the facility are not allowed to be physically present at the hearing, but may submit their testimony in writing, if permitted by the HO, or by telephone. MDOC Policy 20.1 Proc. C(7). If the HO refuses to call a witness requested by the prisoner, he must state his reason. MDOC Policy 20.1 Proc. C(8).

         Despite the Petitioner's claim that he was denied witnesses, the Record does not support that claim. The Petitioner signed the Notification of Right to Appeal which is the final page of the hearing summary. (C.R. 17). That summary states that "[t]he witnesses listed are not needed per the prisoner." (C.R. 14.) The Petitioner explains that he did not argue with the HO about the witnesses because he was afraid that the HO would throw him out of the hearing and continue without him, as he alleges this happened to him before. This court is not convinced. The Petitioner signed the paperwork at the end of the hearing, not during it, so he could not have been thrown out of the hearing as it was over. If the Petitioner did not tell the HO that the witnesses were not needed and the summary was therefore inaccurate, he should not have signed the Notification of Right to Appeal at the end of the hearing summary. The court also notes that the Petitioner did not list officers Dionne and Ritano or Sergeant Commeau as witnesses on the Letter of Notification of Disciplinary Hearing signed by him on September 14, 2018. (C.R. 1.)

         Because the HO indicated in the hearing summary that the Petitioner stated that the witnesses were not needed, and the Petitioner signed this very summary on the final page, the court denies the Petitioner judicial review of this issue.

         II. Irregularities in the Investigation

         MDOC's Prisoner Discipline Policy, Procedure B, sets guidelines and standards for Formal Resolutions. If a prisoner declines an informal resolution, the staff shall complete a Disciplinary Report and provide it to a Shift Supervisor, Unit Manager, or other security supervisor designated by the Chief Administrative Officer within 72 hours. MDOC Policy 20.1 Proc. B(3). "Once a disciplinary report has been reviewed and signed by the receiving Shift Supervisor, Unit Manager, or other security supervisor designated by the Chief Administrative Officer ...


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