Opinion
AP-2017-020
12-20-2017
FELIX GRACIA, Petitioner v. MAINE DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
William R. Stokes, Justice, Maine Superior Court
INTRODUCTION
The matter before the Court is an appeal by Felix Gracia, an inmate at the Maine State Prison, from a disciplinary proceeding that resulted in the imposition of sanctions against him for the offense of "trafficking, " a Class A violation. This appeal has been brought in accordance with 5 M.R.S. §§11001-11008 (Administrative Procedure Act) and M.R. Civ. P. 8OC.
FACTUAL AND PROCEDURAL BACKGROUND
As set out in the Disciplinary Hearing Report dated March 21, 2017, and authored by Lt. Lidia Burnham, the facts are as follows:
All events occurred in the year 2017. All the facts regarding events prior to March 21, 2017 are contained in the Certified Record ("C.R.") filed by the Respondent at pages 2-3.
On January 12, Petitioner gave his sister, Carmen, a phone number for "Ramon's nephew" and told her to give him $600 and that "they are 50."
Between January 12 and January 16, fellow inmate Jose Ramon Quinones called his nephew to tell him that a woman from Connecticut, who Lt. Burnham parenthetically states is Carmen, was going to give him $600 and that her brother, parenthetically noted as Petitioner, was going to buy "50 chickens for $600." Lt. Burnham interprets "50 chickens for $600" to mean 50 strips of Suboxone for $600.
On January 16, Petitioner spoke with Carmen and told her to call the "guy" and tell him to remove the tinfoil. According to Lt. Burhnam's report, Suboxone comes in individual packages with tinfoil on the inside. Also on January 16, Petitioner told Carmen that someone was going to call and meet her at her house.
Petitioner spoke with Carmen on January 26 and she told him that the package arrived. The same day, Petitioner called Jose Santiago and told him that he needed to call because "it" was there and waiting for him to pick "it" up. On January 29, Petitioner called Santiago again who said that he had made arrangements to "pick that up" on Wednesday.
On January 30, Petitioner called Carmen and told her that "El titere, " who Lt. Burnham parenthetically claimed was Santiago, would call her later and meet her on Wednesday. Petitioner also asked Carmen to open the packages and count "them." She said she only received 45, and Petitioner was upset because he paid $600 for 50.
On February 2, Petitioner called Carmen who said that the "guy, " noted parenthetically as Santiago, showed up at her house and she gave him 50.
Between February 11 and February 20, Petitioner attempted several phone calls to Santiago, who did not answer, so he asked Carmen to contact him and get the "stuff back. On February 20. Petitioner told Carmen that he spoke with the "guy, " parenthetically identified as Santiago. On February 28, Petitioner told Carmen that he hoped that over the weekend he was going to get the "stuff in." Between February 28 and March 21, no Suboxone arrived at the prison.
On March 22, Lt. Burnham's report was approved and forwarded for investigation, and an investigation was opened. (C.R. 4). Petitioner was read the report and charged with a trafficking violation. (C.R. 3, 4). Petitioner did not make a statement in regards to the opening of the investigation. (C.R. 4). On March 27, Petitioner received notice of the hearing scheduled for March 30 and indicated that he did not wish to call witnesses at the hearing. (C.R. 1).
Petitioner requested access to all staff, video, phone, and forensic evidence. (C.R. 6). He also requested, in a written and undated document, to examine Lt. Burnham, although he did not otherwise request to present any witnesses. (C.R. 1, 6, 8). Respondent contends that no video or forensic records, or additional staff reports exist. (Resp.'s Br. 9, n.2). Petitioner was denied access to the phone records, for which no reason was given. (C.R. 8).
In the Summary of Hearing dated March 30, the space under the heading "name of any witnesses and summary of testimony and any exhibits presented" is blank. (C.R. 8). This would appear to indicate that no evidence of any kind was presented at the hearing. Based on the findings of the hearing officer (Capt. Abbott), however, it is apparent that he did, in fact, consider evidence at the hearing. (C.R. 8).
The hearing officer's findings were as follows:
"The prisoner is guilty based on the officers [sic] report. I was briefed by S.I.I, about the case and with that information and the report I do feel that this prisoner was attempting to have drugs mailed into the facility." (C.R. 8).
Petitioner appealed to the Chief Administrative Officer or designee on April 3. (C.R. 12). The guilty finding was affirmed on April 7. (C.R. 13).
DISCUSSION
Title 34-A M.R.S. §3032(1) mandates that the Commissioner of the Department of Corrections adopt rules governing the discipline of inmates that will ensure a "high standard of fairness and equity." Section 3032(6) requires that a "client" (inmate) is entitled to an "impartial hearing" before being subjected to punishment. To implement that right to an impartial hearing, the Legislature has articulated a number of specific rights which the client must receive.
In compliance with the legislative directive, the Commissioner has, in fact, adopted rules governing the way disciplinary hearings for inmates are to be conducted. An inmate who is charged with a violation of the disciplinary code is entitled, among other things, to: (1) have the hearing officer's finding of guilt or innocence based only on evidence presented at the disciplinary hearing; (2) be allowed access to evidence, which shall not be unreasonably withheld or restricted, and if withheld or limited, a reason given for any such withholding or limitation, and; (3) be provided with a summary of any confidential information relied upon by the hearing officer in making his finding of guilt or innocence. MDOC Policy 20.1, Procs. C (9)-(l3). The court focuses on whether these aspects of the disciplinary hearing policies and procedures were complied with, and whether there was substantial evidence in the administrative record to support the hearing officer's findings.
This court must examine "the entire record to determine whether, on the basis of all the testimony and exhibits before it, the agency could fairly and reasonably find the facts as it did." Friends of Lincoln Lake v. Board of Environmental Protection, 2001 ME 18, ¶ 13, 989 A.2d 1228 (emphasis added). The question is whether the record "contains competent and substantial evidence that supports" the hearing officer's findings and whether he correctly applied the law to the facts. Nattress v. Land Use Regulation Comm'n., 600 A.2d 391, 394 (Me. 1991). The court may not substitute its judgment for that of the agency's on questions of fact. 5 M.R.S. § 11007(3). Determinations of the believability or credibility of the evidence, supported by substantial evidence in the record, should not be disturbed by this court. Cotton v. Maine Employment Security Comm'n., 431 A.2d 637, 640 (Me. 1981).
"Administrative agencies are bound by their own rules of procedure promulgated pursuant to legislative grant of power, which rules have the force of law." Russell v. Duchess Footwear, 487 A.2d 256, 259-60 (Me. 1985) (Dufresne, A.R.J. concurring); see also FCC v. Fox TV Stations, Inc., 556 U.S. 502, 549 (2009) ("Moreover, an agency must act consistently. The agency must follow its own rules"). While Supreme Court precedent and Maine statutory law do not expressly require the hearing officer to explain why he refused an inmate's request to examine certain evidence, the Department's Prison Discipline Policy does. 03-201 C.M.R. ch. 20 § 20.1 Procedure C(IO).
The court has reviewed the entire record submitted by Respondent MDOC, and it may be that the hearing officer's finding of guilt was supported by substantial evidence contained in Lt. Burnham's report. There are parts of the record, however, that the court finds the hearing officer relied upon that were not made available for judicial review in this Rule 80C appeal. In particular, it is apparent that in making his findings, the hearing officer relied upon a briefing by the S.I.I. (Security and Interior Investigations) unit, which may have included recordings of telephone conversations, and potentially confidential information, none of which was made available to Petitioner at the time of the hearing, and none of which has been included in the certified record presented to the court for review on appeal.
Respondent contends that the hearing officer's decision was based only upon Lt. Burnham's report. A complete reading of the hearing officer's findings, however, reveals that he also relied upon a prior, ex parte briefing by the S.I.I, unit. MDOC Policy 20.1, Proc. C (13) states that at the disciplinary hearing, the hearing officer's "finding of guilt or innocence must rest solely upon evidence produced at the hearing." According to the Summary of Hearing, no exhibits or witnesses were presented. Yet, the parties apparently agree that: (1) Lt. Burhnam's report was presented as evidence at the hearing, and; (2) the information presented to the hearing officer by S.I.I, in the briefing was not disclosed at the hearing. This appears to be in direct violation of the MDOC policy by having Petitioner's guilt decided based on evidence that was not disclosed to him or presented at the hearing, and against which he could not possibly defend. Neither the information obtained at the S.I.I, briefing, nor any summary thereof, was provided to the court as part of the certified administrative record.
If the S.I.I, briefing contained confidential information, the hearing officer cannot automatically deny Petitioner access to it. MDOC Policy 20.1, Procs. C (11) & (12) require that when confidential information is necessary to support a finding of guilt, the identity of the informant shall be removed and a summary of the remainder of the confidential information shall be presented at the hearing. Thus, not only was the information from the S.I.I, briefing required to be disclosed to Petitioner because the hearing officer relied upon it, if that briefing included any confidential information that he relied upon in making his guilty finding, the MDOC policy required that a summary be provided to the Petitioner. It is unclear whether confidential information was contained in the S.I.I, briefing, or whether that information was necessary to support the hearing officer's finding of guilt. Without a complete copy of the record, there is no way for the court to know or even engage in any meaningful judicial review.
Petitioner believes that asterisks in Lt. Burnham's report cross-reference confidential information. There is no evidence of this, and nowhere is her use of asterisks explained. Upon reading the report, it is likely that the asterisks indicate the start of a new paragraph, date, or event.
Lastly, Petitioner specifically requested, and was denied, access to the recordings of phone conversations. In his Summary of Hearing, the hearing officer made the following written notation: "The prisoner asked for the recordings of the phone conversation. I informed him that he won't be able to have or listen to the phone conversations." No further explanation was provided. MDOC Policy 20.1, Procs. C (9) & (10) state that the prisoner may be permitted to present or examine exhibits, that permission to do so shall not be unreasonably withheld or restricted, and that when permission is withheld or restricted, the hearing officer must document the reasons for withholding or restricting access to the evidence in the written summary of hearing. Lt. Burnham's entire report was based on phone conversations that were recorded for the purposes of the investigation. Thus, the phone conversations were the cornerstone of the entire case against the Petitioner. Nevertheless, the Petitioner was denied access to them without any explanation by the hearing officer. Given the importance of the content of these recordings, it was particularly important that the hearing officer document the reason why the Petitioner was not allowed to listen to them, or why other alternative arrangements could not have been made, such as allowing staff counsel substitute to listen to them, which is what MDOC policy specifically contemplates. Policy 20.1, Proc. C(10).
Since the hearing officer did not comply with the applicable MDOC policies and procedures, the court cannot fulfil its obligation to conduct meaningful judicial review of the entire record when essential parts of the record are missing, and no explanation has been provided by the hearing officer for these deficiencies. The court may reverse an agency decision if it is unsupported by substantial evidence in the whole record or was made upon unlawful procedure, and remand to direct the agency to "hold such proceedings or take such action as the court deems necessary." 5 M.R.S. §11007(4).
CONCLUSION
The entry is:
The Petition for Judicial Review is GRANTED and Disciplinary Matter No. MSP-2017-0478 is REVERSED and REMANDED to the Respondent with instructions to conduct a disciplinary hearing that complies with Prison Policies and Procedures.
The clerk is directed to incorporate this Order by reference in the docket in accordance with M.R. Civ. P. 79(a).
Petitioner "vehemently opposes" the description of events as set out in Respondent's brief. This argument is without merit, since Respondent's brief sets out the facts nearly word-for-word as they are stated in Lt. Burnham's report, only altered for ease of reading because, as Petitioner also argued, the report contains grammatical, spelling, and syntactic errors.