ORDER DENYING PETITIONER'S 80C APPEAL OF FINAL
the court is Petitioner Reuben Givens' petition for
review of final agency action brought pursuant to M. R. Civ.
P. 80C. Mr. Givens5 petition challenges the decision of the
Commissioner of the Maine Department of Corrections (D, O.C.)
denying his grievance appeal1. A hearing was held on October 16,
2019, during which the court heard arguments from both
parties. For the reasons below, the court affirms the
Commissioner's decision and denies Mr. Givens'
2012, Mr. Givens was formally charged by the District
Attorney's office of Atlanta, Georgia with a rape
offense. Although it appeared that probable cause existed for
the offense, the Georgia District Attorney declined to
prosecute the case. Mr. Givens is currently incarcerated at
the Maine State Prison for a non-sex related crime and is
housed in a medium security facility. At the time of the
grievance at issue in this case, the Maine D.O.C. had a
policy which stated that adult prisoners who ate formally
charged but not convicted of a sex offense may not be
considered for transfer to a minimum-security facility unless
the prisoner has completed the intensive phase of a D.O.C.
residential sex offender treatment program. State of Me.
D.O.C. Policy No. 23.1 (G)(7) (2017). Mr. Givens contends that
under this policy he was (1) wrongfully labelled as a
sex-offender by the D.O.C.; (2) effectively forced to
complete a sex-offender treatment program In order to earn
"good time credits" and be considered for transfer
to a minimum security facility; (3) suffered harm from being
labelled as a sex-offender on account of stigma associated
with the label; and (4) wrongfully denied transfer to a
minirnum security facility after he completed the treatment
Givens began participating in the sex-offender program in
2017 and completed the program sometime in March, 2018. On
March 13, 2018, Mr. Givens filed a petition for judicial
review under M. R. Civ. P. 80C challenging the D.O.C policy
which required him to participate in the sex offender
treatment program before he could be considered for transfer
to a minimum-security facility. Mr. Givens5 petition asserted
that the D.O.C.'s policy violated his constitutional
rights because it effectively compelled him to attend the
sex-offender treatment program in order to earn certain
"good-time" credits and obtain transfer to a
minimum-security facility. He further asserted that the
D.O.C, wrongfully labelled him as a sex-offender, as he was
never convicted of a sex-offense, and that by labelling him
as a sex-offender die D.O.C. caused him to be targeted for
abuse by other prisoners and otherwise subjected him to
court's order on July 27, 2018 remanded Mr. Givens'
original petition to the D.O.C. for further proceedings
through the D.O.C.'s administrative grievance process.
Thereafter, Mr. Givens filed a grievance on August 8, 2018
with the D.O.C.'s grievance review officer. This is the
grievance currently at issue in Mr. Givens' 80C petition
before the court.
Givens grieved that the D.O.C. had wrongfully classified him
as a sex-offender and placed him in sex offender programming.
He wrote that his life has been put at risk because of this
improper label and that he was told by D.O.C. staff that if
he did not do the treatment program he would the lose
"good-time" credits he had accumulated for the
length of the program. He also grieved that since completing
the program he was still being denied work release even
though he currently had a minimum-security classification. He
further asserted that labelling him as a sex-offender when he
has not been convicted of a sex offense is a violation of his
constitutional right to a fair trial and compelling him to
attend with a threat of loss of "good-time" earned
in the program is a violation of his due process rights.
the grievance reached the Commissioner of the Department, the
highest level of administrative review in the D.O.C.
grievance process. As part of his grievance appeal, Mr.
Givens submitted a letter to the Commissioner stating that:
1) although he had completed the sex offender program he was
still not being allowed placement within a minimum-security
facility; 2) he is not a sex offender; and 3) he has been
harmed because of classification as a sex-offender and
participation in the program.
Commissioner denied Mr. Givens' grievance on April 26,
2019. The Commissioner stated that the reason for D.O.C.
policy 23.1 (G)(7) (2017) was public safety. The Commissioner
explained that minimum security housing is unfenced and thus
allows greater opportunity for prisoners to escape into the
community and commit crimes. The Commissioner further
commented that sex offenders tend to be repeat offenders and
it is not uncommon for sex-offense crimes to go undetected.
Thus, when there is an indication that a prisoner is a
sex-offender, such as in Mr. Givens' situation where a
formal charge was brought against him, the D.O.C. requires
completion of a sex offender treatment program to reduce the
risk of reoffending "before placing the prisoner in a
situation where there is a greater opportunity to
reoffend," The Commissioner further explained that the
D.O.C.'s policy regarding work release and sex offenders
is similarly based on public safety and that the D.O.C.
"is unwilling to take a chance with public safety by
having an untreated sex offender out on work release."
Lastly, the Commissioner explained that although Mr. Givens
had completed the sex offender treatment program he was no
longer classified as minimum custody, a prerequisite for any
prisoner to be considered for transfer to a minimum-security
prison and for work release privileges. The Commissioner then
noted that Mr. Givens was classified as medium custody by the
D.O.C.'s Assistant Director of Classification because of
two disciplinary violations. The D.O.C. responds to Mr.
Givens' petition by arguing that Policy 23.1(G)(7) is
based on public safety concerns and legitimate penological
interests. Contrary to Mr. Givens' assertion, the D.O.C.
argues that it did not compel his participation in the
sex-offender treatment program as he was able to refuse to
participate in the program and would not have been deprived
of "good-time" credit that he had already earned
outside of the program if he refused. The D.O.C. merely
afforded him the opportunity to earn additional
"good-time" credits by participating in the
program. The D.O.C. further argues that it has significant
discretion and ultimate authority on where to house a
prisoner and whether to transfer a prisoner to another
facility and that Mr. Givens' custody status was only
one-factor relevant to its determination on whether to house
him in a medium security or minimum-security facility.
Lastly, the D.O.C. notes that participation in a work-release
program is a privilege and that it is within the D.O.C.'s
discretion to require a prisoner who has been formally
charged with a sex offense to participate in a sex offender
treatment program before being considered for such a
Givens argues that the D.O.C. has classified him as a sex
offender by relying on charges for which he was never
convicted and that this classification deprives him of a
liberty interest protected by the due process clause. He
contends that the classification constitutes a deprivation of
liberty because it affects his ability to earn
"good-time" credits by subjecting prisoners to a
mandatory intrusive therapy program. He states that prisoners
who are classified as sex offenders and required to
participate in the program will not earn
"good-time" credits for the length of the six-month
program unless they participate because these prisoners
necessarily receive monthly 'poor performance
reports' due to non-participation in the program. Mr.
Givens argues that this loss of "good-time" renders
the program mandatory. In addition, he contends that
prisoners who are classified as sex-offenders ate batted from
minimum custody facilities and work-release privileges unless
they complete the program. Mr. Givens further argues that
D.O.C. policy 23.1(G)(7) violates the Equal Protection Clause
of the Fourteenth Amendment; and the Fifth Amendment.
October 16, 2019 hearing, Mr. Givens told the court that his
life has been put at risk because of his classification as a
sex-offender and participation in the sex-offender program.
He also stated that his family life has been harmed because
of his classification as a sex-offender and his participation
in the sex-offender program. He stated that members of his
family ate now refusing to communicate with him and believe
that he is a sex-offender. Mr. Givens told the court that his
family learned of his participation in the sex-offender
program after he disclosed the information to them himself.
The D.O.C. responded by stating it has a confidentiality
policy that protects the information of prisoners in the
program and that the D.O.C. did not disclose information
about Mr. Givens' participation in the sex-offender
program to members of his family.
Standard of Review
called on to review a final agency action under M. R. Civ. P.
80C, die court reviews die administrative agency's
decision for errors of law, abuse of discretion, or findings
mat are not supported by substantial evidence in the record.
Somerset Cty. v. Dep't of Corr., 2016 ME 33,
¶ 14, 133 A.3d 1006; Dyer v. Superintendent of
Ins., 2013 ME 61, ¶ 14, 69 A.3d 416 (the court
defers to an agency's findings if supported by
substantial evidence in the record even if the record
contains inconsistent or contrary evidence.)
"Substantial evidence" is defined as "such
relevant evidence as a reasonable mind might accept as
adequate to support die resultant conclusion."
Lewiston Daily Sun v. Me. Unemployment Ins.
Comm'n, 1999 ME 90, ¶ 7, 733 A.2d 344. The
court examines the entire record to determine whether die
agency could fairly and reasonably find the fact as it did.
Dyer, 2013 ME 61, ¶ 14, 69 A.3d 416.
court reviews issues of law de novo but "an agency's
interpretation of its own internal rules will be given
considerable deference and will not be set aside unless die
rule plainly compels a contrary result, or die rule
interpretation is contrary to the governing statute."
Friends of the Boundary Mountains v. Land Use Regulation
Comm'n,2012 ME 53, ¶ 6, 40 A.3d 947. The party
seeking to vacate die agency's decision bears die burden
of persuasion and die agency's decision will only be