Opinion
AP-2017-020
09-30-2018
FELIX GRACIA, Petitioner v. MAINE DEPARTMENT OF CORRECTIONS, Respondent.
Plaintiffs Attorney Felix Gracia, Pro Se Defendant's Attorney Jim Fortin, AAG
Plaintiffs Attorney Felix Gracia, Pro Se
Defendant's Attorney Jim Fortin, AAG
DECISION AND ORDER AFTER REMAND
William R. Stokes Justice
INTRODUCTION
The matter before the Court is an appeal by Felix Gratia, 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 Petitioner's Certified Record ("C.R.") at pages 2-3.
On January 12, fellow inmate Felix Gracia (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 Quinones (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 Petitioner, 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, Petitioner spoke with Carmen and told her to call the "guy" and tell him to remove the tinfoil. According to Lt. Burnham's report, Suboxone comes in individual packages with tinfoil on the inside.
On January 18, Quinones 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, Quinones called his nephew who said that the package would arrive Tuesday or Wednesday.
The package was delivered to Carmen on January 26, and on the same day Petitioner called Jose Santiago and discussed arrangements to pick "it" up. Petitioner also asked Carmen to open the package and count "them." She said she only received 45 and Petitioner was upset because he paid $600 for 50. She told Petitioner 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 30 the first disciplinary hearing was held and Petitioner was found guilty. (C.R. 9.) The guilty finding was affirmed by the Chief Administrative Officer or designee. (C.R. 15.) Upon Petitioner's appeal to the Superior Court pursuant to 5 M.R.S. §§ 11001-11008 and M.R. Civ. P. 80C, this Court granted Judicial Review in its December 18, 2017 Decision and Order after finding a number of procedural violations in the first hearing. Gracia v. Me. Dep't of Corr., No. AP-17-20, 2017 Me. Super. LEXIS 290 (Dec. 20, 2017). Disciplinary Matter No. MSP-2017-0478 was reversed and remanded to the Maine Department of Corrections with instructions to conduct a disciplinary hearing that complied with prison policies and procedures. Id. at * 11.
Pursuant to the Remand Order, Respondent held a second disciplinary hearing on February 9, 2018. Resp't's Br. 5. All information from this hearing, including . the summary, was lost due to an error and could not be recovered. Id. 6. On March 22, Respondent vacated the results of the second hearing and decided to hold a third disciplinary hearing. Id. A "Notice of Continuation - Disciplinary Hearing" dated March 22 notified Petitioner of the hearing on the following day. Supplemental Certified Record 2 ("Suppl. C.R."). On March 23, a third disciplinary hearing occurred and Petitioner was found guilty of trafficking. Id. 3. The Hearing Officer relied solely on Lt. Burnham's report. The Petitioner appealed the Hearing Officer's finding of guilt on March 30 and the guilty finding was affirmed on the same date. Id. 7, 9. Also on March 30, the Hearing Officer submitted a letter to the Deputy Warden with additional information about the hearings. Id. 8. On May 29, 2018 Petitioner filed an appeal in the Superior Court pursuant to M.R. Civ. P. 80C and 5 M.R.S. §§ 11001-11008 alleging a number of procedural violations.
All dated references from this point forward occurred in 2018.
DISCUSSION 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.
The 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." Dyer v. Superintendent of Ins., 2013 ME 61, ¶ 11, 69 A.3d 416 (quoting Friends of Lincoln Lakes, 2010 ME 18, ¶ 13, 989 A.2d 1128). The court will defer to those findings so long as they are supported by substantial evidence in the record and "even if the record contains inconsistent evidence." Id. 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 the court. Cotton v. Maine Employment Security Comm'n., 431 A.2d 637, 640 (Me. 1981).
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." An inmate who is charged with a violation of the disciplinary code is entitled, among other things (1) to have the hearing officer's finding of guilt or innocence based only on evidence presented at the disciplinary hearing; (2) to call witnesses and present evidence, which shall not be unreasonably withheld, and if withheld, a reason for such withholding shall be given; and (3) to be provided with notice of the hearing twenty-four hours before the hearing. MDOC Policy 20.1, Procs. C (1), (7)-(10), (13). The Court focuses on whether these aspects of disciplinary hearing policies and procedures were violated, and whether there was substantial evidence in the administrative record to support the Hearing Officer's findings.
Petitioner alleges five procedural violations: (1) the notice of continuation was improper and he was not given a formal notice of the disciplinary hearing or a copy of the incident report; (2) he was denied the opportunity to call witnesses or to submit a written statement at the hearing; (3) he did not approve his counsel substitute; (4) he was not informed that the Hearing Officer would use a translation service at the hearing; and (5) holding a third hearing was unfair and violated his due process. The Court has reviewed the entire record submitted by Respondent, and concludes that the Hearing Officer's finding of guilt is supported by substantial evidence contained in Lt. Burnham's report and that Respondent did not commit any procedural violations requiring reversal. Each of Petitioner's allegations is addressed in turn.
1. Notice given to Petitioner
Petitioner states that he received notice of the third hearing on the same day the hearing occurred, March 23, although the notice was dated March 22, and that this is in violation of prison policy. In reviewing the record, the notice of the hearing is, in fact, dated March 22, 2018, and scheduled a hearing for the following day at 1:00 p.m.. (Suppl. C.R. 2.) Substantial evidence in the record supports that twenty-four hours' notice was given to Petitioner, but even if this notice was given to Petitioner the day before the hearing and less than twenty-four hours in advance, a matter of a few hours short of the full twenty-four provided for in the Prison Policy does not amount to the Respondent conducting an action that was "procedurally unlawful." Petitioner was afforded proper notice of the disciplinary hearing.
Petitioner also argues that he was provided with the wrong form and did not receive a copy of the disciplinary report. This argument is not addressed as it is without merit. Petitioner received due process because the charges against him do not come as a surprise: this is the third hearing on the same charges. Notification of a hearing is notification, regardless of the form it is on.
Respondent argues that this issue has not been preserved for appeal as it was not addressed in Petitioner's initial appeal of his guilty finding to the Chief Administrative Officer at the prison. The relevant portion of Petitioner's appeal states: "The hearing was not conducted according to Policy." (Suppl. C.R. 7.) It is unclear what level of specificity in an appeal at the agency level is required to preserve an issue. It is arguable that Petitioner preserved the notice issue by claiming that the hearing "was not conducted according to Policy." If this type of argument is allowed to proceed, however, it would mean that appellants could argue virtually anything in their appeal before the court, so long as in the agency appeal they broadly claimed that the agency did not comply with its own procedures. Given how deferential agency decisions are reviewed, allowing broad and generic statements like this to be the basis of an appeal and exhaust administrative remedies would seem to implicitly go against existing precedent.
2. Opportunity to call witnesses and present evidence
Petitioner next alleges that the Hearing Officer did not permit him to call witnesses or to submit written evidence into the record. The disciplinary hearing summary shows that no witnesses or exhibits were presented. (Suppl. C.R. 3.) Under the section titled "Reasons for withholding or restricting testimony or exhibits or for failure of witness to testify," "N/A - Phone call is a security issue, can't share with prisoner" is written. Id. Whether an inmate is permitted to listen to an audio recording, such as a phone call, when to do so would compromise security, is a matter within the discretion of the hearing officer. See Policy VI (C)(IO). The record also includes a March 30 statement from Unit Manager Blakely, the Hearing Officer, in which he states the Petitioner "never requested a translator, never requested any witnesses nor did I deny him to write any statements." (Suppl. C.R. 8.)
Because the "N/A" written in the disciplinary hearing summary only addresses the phone call evidence, it presumably indicates that it was not necessary to fill out the section in more detail regarding reasons for withholding or restricting witness testimony or exhibits because neither was presented, and the Hearing Officer withheld only the phone call. This, coupled with the Hearing Officer's statement that the Petitioner did not request any witnesses and that Petitioner was not denied the opportunity to make written statements is substantial evidence that Respondent complied with the prison policy's procedural requirements and 34-A M.R.S. § 3032(6).
3. Approval of counsel substitute
Petitioner next argues that he was not permitted to select his counsel substitute. Prison policy gives Petitioner "the right to be assisted at the hearing by counsel substitute." MDOC Policy 20.1, Procs. C(5). Parts of the policy suggest that the prisoner may be able to request specific counsel substitute to represent him. See MDOC Policy 20.1, Procs. B(I5). Respondent counters that Petitioner was assisted by counsel substitute Mr. Dwyer at the disciplinary hearing and that this is all that was required of Respondent. (Suppl. C.R. 3.) Additionally, there is nothing within the record or Petitioner's Brief to indicate that the Petitioner requested, and was denied, different counsel substitute. Because there was no request for a different counsel substitute, and the Petitioner was represented by counsel substitute, no procedural violation occurred.
"The notification shall also inform the prisoner that, if he or she wishes to be represented by counsel substitute, he or she shall inform the disciplinary hearing officer of the counsel substitute he or she has selected .... Facility staff shall facilitate communication between the prisoner and the counsel substitute he or she requests."
4. Translation services
Next, Petitioner alleges that he was not informed that a translation service was being used at his hearing. He states that if he had been aware of this resource he would have used it to present a more effective defense. Nothing in the record reflects a request from Petitioner for translation services. Instead, the record shows exactly the opposite: that Petitioner never requested a translator. (Suppl. C.R. 8.) There is no policy regarding prisoner discipline that addresses translation services during a disciplinary hearing. Translation services are not addressed in the statute governing disciplinary action towards prisoners. See 34-A M.R.S. § 3032(6). Because there is no affirmative right to translation services, and no request for those services was made, and because the record shows that a translation service was used, Respondent did not commit any procedural violation.
5. The holding of a third hearing
Petitioner generally objects to the third hearing arguing that it placed an undue burden on him and that Respondent did not act impartially. This argument is without merit. Neither the statute governing prisoner discipline nor the prison's own policy prohibits the holding of a third hearing. Supporting the third hearing was this Court's December 20, 2017 Decision and Order specifically requiring the Respondent to hold another disciplinary hearing "that complie[d] with Prison Policies and Procedures." Gracia v. Me. Dep't of Corr., No. AP-17-20, 2017 Me. Super. LEXIS 290, at *11 (Dec. 20, 2017). It is unfortunate that the information from the February 9, 2018, hearing was lost and could not be recovered due to an error, but that, standing alone does not amount to a violation of Petitioner's due process rights. Because Respondent was ordered to hold a hearing that complied with its own policies and procedures and did so, albeit on the third attempt, there has been no procedural or due process violation by holding a third hearing.
CONCLUSION
The entry is:
The Petition for Judicial Review is DENIED.
The clerk is directed to incorporate this Order by reference in the docket in accordance with M.R. Civ. P. 79(a).