Opinion
AP-2017-022
12-20-2017
JOSE QUINONES, Petitioner v. MAINE DEPARTMENT OF CORRECTIONS, Respondent.
DECISION AND ORDER
William R. Stokes, Justice
INTRODUCTION
The matter before the Court is an appeal by Jose Quinones, 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. 80C.
FACTUAL AND PROCEDURAL BACKGROUND
As set out in the Disciplinary Hearing Reports dated March 21, 2017 and authored by Lt. Lidia Burnham, the facts are as follows:
All dates are 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, fellow inmate Felix Gracia 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, Petitioner (whose full name is Jose Ramon Natal 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 Gracia, was going to buy "50 chickens for $600". Lt. Burnham parenthetically interprets "50 chickens for $600" to mean 50 strips of Suboxone for $600.
Four days later, on January 16, Gracia 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.
On January 18, Petitioner called Carmen, who said his nephew had not called. He gave her his nephew's phone number and told her to text him. On Friday January 20, Petitioner called his nephew, who said that the package would arrive Tuesday or Wednesday.
The package arrived to Carmen on January 26, and the same day, Gracia called Jose Santiago and discussed arrangements to pick "it" up. Gracia also asked Carmen to open the packages and count "them." She said she only received 45, and Gracia was upset because he paid $600 for 50. She told Gracia on February 2 that when the "guy, " parenthetically noted as Santiago, showed up at her house, she gave him 50.
No Suboxone had arrived at the prison by the time Lt. Burnham's report was submitted on March 21.
On March 21, Lt. Burnham's report was approved and forwarded for investigation. An investigation was opened on March 22. (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 did not indicate whether he wished to call witnesses at the hearing. (C.R. 1).
Petitioner requested access to phone recordings, forensic and physical evidence, and all investigative reports. (C.R. 7). Respondent claims that no forensic or physical evidence exists. (Resp.'s Br. 10, n.3). Petitioner was denied access to the S.I.I. (Security and Interior Invecgations) reports because they are confidential. He was also told that he was not allowed to access the phone recordings "for security reasons." (C.R. 9).
In the Summary of Hearing, the space under the heading "name of any witnesses and summary of testimony and any exhibits presented" is blank. (C.R. 9). This would appear to indicate that no evidence 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 some 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 this case with the information that was presented and what is in the report I do feel that this prisoner was attempting to have drugs sent into the facility by mail." (C.R. 9).
The hearing officer also found that although Petitioner was not allowed to listen to the recordings, "the evidence is the phone call." (C.R. 9).
Petitioner appealed to the Chief Administrative Officer or designee on April 6. (C.R. 13-14). The guilty finding was affirmed on April 7. (C.R. 15).
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)-(13). 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.RJ. 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.
Additionally, the Hearing Officer denied Petitioner's request for the S.I.I, report because it is considered confidential. 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, the information from the S.I.I, briefing should have been disclosed to Petitioner (at least in summarized form) because the hearing officer relied upon it in making his guilty finding. It is unclear to the court whether any confidential information within the S.I.I, report was necessary to support the hearing officer's finding of guilt. But without the complete record or a summary of the confidential information, which should have been provided to Petitioner at Hearing pursuant to MDOC policy and provided to the court as part of the certified record, there is no way for the Court to know.
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. 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 material in the written summary of hearing. Lt. Burnham's entire report was based on phone conversations that were recorded for the purposes of investigation. The hearing officer himself stated that "the evidence is the phone call." In short, the phone conversations were the cornerstone of the entire case. Petitioner was denied access to them for "security reasons." Although Respondent points to this as an adequate reason for denial of access and in compliance with the MDOC policy, the court is not convinced. Given the importance of the contents of these recordings, it is particularly important that the hearing officer document with particularity the reason(s) why the Petitioner was not allowed to listen to them, or why other alternative arrangements could not have been made, such as allowing counsel substitute to listen. Such a general statement as "the prisoner won't be able to listen to the phone calls for security reasons" is insufficient to explain what those security concerns were, and why Petitioner, or his counsel substitute, was not allowed access to this critical evidence.
Since the hearing officer has not complied with by 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, namely the phone records and the S.I.I, briefing, which includes confidential information that was not summarized for Petitioner. The court may reverse an agency decision if it is unsupported by substantial evidence on 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-2017-0476 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.