The opinion
STATE OF MAINE
STATE OF MAINE Knox.8.$;, Clerks Office -» SUPERIOR COURT
SUPERIOR COURT = IVIL ACTION
KNOX, ss. |IDOCKET NO AP-03-016
NOV 17 20h ja KNB
AARON J. MILLER,
RECEIVED AND FILED -
v. DECISION AND ORDER
MAINE DEPARTMENT OF
CORRECTIONS, MARTIN
MAGNUSSON, COMMISSION ER,
JEFFREY D. MERRILLL, WARDEN, DORALD Gee yee)
STEVEN ROWE, ATTORNEY GEN ERAL, we SS
Respondents NOV 30 908
I. Introduction.
This matter is before the court for disposition of 13 pending motions. Among
these is the Respondents’ Motion to Dismiss which, the parties agree, ought to be
addressed first because it may be dispositive of the case; that is, if the motion is granted,
there is no need to address the remaining motions.
II. Motion to Dismiss.
The respondents have filed this motion seeking to have the pending petition for
judicial review denied in its entirety. The petition, filed by Maine State Prison inmate
Aaron Miller (“Miller”) seeks judicial review of governmental action pursuant to M.R.
Civ. P. 80B," namely the alleged wrongful detention of the petitioner’s property (CD’s
and catalogues) sent to him by mail but not delivered to him by prison authorities.
Miller also seeks a declaratory judgment that the mail policy which allowed the seizure
of his mail is a rule which should have been, but was not, adopted under the
’ The appropriate rule to challenge the action of a state government agency such as the Department of
Corrections is M.R. Civ. P. 80C, not 80B.
procedures of Administrative Procedures Act (APA). He also claims the mail policy is
unconstitutional and, therefore, its enforcement needs to be enjoined.
The respondents cite five reasons why this case ought to be dismissed, three in
their motion, one in their reply brief and one in a letter sent to the court approximately
two weeks before argument on this motion. As four of these arguments have merit, the
motion is to be granted and the case dismissed.
The first and most compelling argument advanced by the respondents was
articulated in a letter to the court dated August 19, 2004.2 In it, counsel for the
respondents directs the court’s attention to the amended decision and order in the case
of Long Timers Group, et al., v. Martin Magnusson, et al., Knox County Docket No. CV-03-
061. In that dispositional order, this court (Brodrick, A.RJ.) granted the defendant's
motion for summary judgment and specifically held that the mail policy in question in
that case and this, DOC Policy 21.2, was a policy and not a rule so that the
Commissioner of the Department of Corrections, it may be inferred, need not follow the
rulemaking process of the APA. The court also concluded that 5 MRS.A. § 8058(1),
which would sanction the review of an agency rule by a declaratory judgment action,
does not apply when a policy, as opposed to a rule, is being challenged. The court also
found that the plaintiffs in that case did not exhaust their administrative remedies
before they commenced that action so that judgment would be entered for the
defendant in that case.
Obviously, the manner in presenting arguments to the court in support of a motion should be by
memorandum. M. R. Civ. P. 7(b)(3). In this instance, however, the respondents’ memorandum, the
petitioner’s opposition, and the respondents’ reply were all filed before the decision and order cited in the
letter was filed. Moreover, the petitioner has not objected to the submission of an argument by letter
which was addressed by both parties at final argument. Finally, were the court to reject this argument on
procedural grounds, it would be required to assess the merits of a case which appears to be nearly
identical to a case already decided by this court — an obvious waste of time and resources.
3
The respondents say that the issues in that case were the same as the issues here
and that Miller was a plaintiff in that matter so he cannot pursue this case because
principles of res judicata bar him from doing so. A review of the filings in Long Timers
Group, et al. v. Martin Magnusson, et al. supports this contention. In the Long Timers case,
the plaintiffs were a class of inmates at the Maine State Prison which included Miller.
In fact, in that case Miller filed an affidavit, presumably to establish himself as a
member of the class, which recites that he is the petitioner in this case and incorporates
his claims with those in the Long Timers matter, namely that pursuant to Policy 21.2 he
has been deprived of CD’s and catalogues sent to him by mail. The only difference
which the court can discern between the Long Timers case and the case at bar is that the
amended complaint in the former asked for a declaration that DOC Policy 21.1 is void
and unenforceable because it is unconstitutional and adopted in a fashion contrary to
the APA and seeks an injunction against the enforcement of the rule, while the case at
bar asks for the same remedies but also invokes M.R. Civ. P. 80B (sic) to have the court
review the prison’s enforcement of the policy as it was applied to Miller’s mail? This
distinction, however, is not a significant one because the basis for Miller’s request to
review the withholding of his own mail is the same as the one cited in the Long Timers
case, namely that the policy which authorized the nondelivery of mail was
unconstitutional and adopted in violation of the APA.
From this history, it appears that res judicata bars the prosecution of this case.
Res judicata precludes relitigating a claim that was actually litigated and decided in an
earlier case. Camps Newfound/Owatonna Corp. v. Town of Harrison, et al., 1998 ME 20,
> Because the two cases are so similar, this court (Alexander, J.) ordered them consolidated at the request
of the plaintiffs, including Miller, who as noted, was a plaintiff in each case. It is unknown why the two
cases were not argued at the same time as this order required.
4
11; 705 A.2d 1109, 1113. A transactional test is applied to define a cause of action
which is articulated as follows:
the measure of a cause of action is the aggregate of connected operative
facts that can be handled together conveniently for purposes of trial. A
Prior judgment bars a later suit arising out [of] the same aggregate of
operative facts even though the second suit relies on a legal theory not
advanced in the first case, seeks different relief than that sought in the first
case, and involves evidence different from the evidence relevant... to the
first case.
Camps Newfound/Owatonna v. Town of Harrison, et al., id., (quoting Connecticut National
Bank v. Kendall, 617 A.2d 544, 547 (Me. 1992) (internal citations omitted)).
The case at bar fits precisely within this definition in that Miller, as a member of
the class of plaintiffs in the Long Timers case, and as petitioner in this case, has presented
the same operative facts in each case, namely the enforcement of the State Prison mail
policy which deprived him, and other inmates, of mail. Both claims allege
constitutional and administrative defects in the adoption and application of the policy,
but the second case simply adds a claim for review of the prison’s action as it relates to
specific pieces of his mail. This being so, this plaintiff may not split his case and
prosecute each of its parts in separate lawsuits. Camp Newfound/Owatonna v. Town of
Harrison, et al., id., at ¢ 12, 705 A.2d at 1109. To allow him to do so would be to place an
additional burden on this court and his adversary when he already has had his
opportunity via his class to have this court address his grievance.
At oral argument, the petitioner asserted that the result in the Long Timers case
should not be held against him in this case because he did not have the opportunity to
argue that case personally. However, he and his colleagues did have the benefit of legal
counsel in that case to whom the task of argument was assigned as the parties’ lawyer
5
and, further, by virtue of joining that class, the petitioner surrendered the option of
“going alone” in a second, identical case.4
For all these reasons, then, this case must be dismissed as barred by res judicata.
That being the case, there is little profit in addressing the other bases advanced
by the respondents in support of their motion to dismiss. The court will nevertheless
address them briefly as here follows.
The first argument articulated in the respondents’ memorandum in support of
the pending motion is that because the mail policy is a policy rather than a rule, it
cannot be challenged on the basis that it was adopted in violation of the rulemaking
process prescribed in the APA. The statute which authorizes judicial review of
administrative rules, 5 M.R.S.A. § 8058(1), is therefore inapplicable and the petitioner
must rely on a judicial review of final agency action, 5 M.R.S.A. § 11001, et seq. to
remedy his grievance concerning the detention of his mail.
Because this court in the Long Timers case has already specifically found that
DOC Policy 21.2 is a policy and not a rule, that determination is binding on the court
and it must conclude that its adoption did not violate the rulelmaking process of the
APA. Moreover, even if the court were to reconsider this claim on its merits, the court
would be compelled to find that the mail policy is not a rule because it does not fit
within the definition of a “rule” under the APA. According to 5 M.RS.A. § 8002(9)() a
“rule” is a regulation or statement of policy which is intended to be judicially
enforceable, but does not include policies concerning “only the internal management of
an agency .. . and not judicially enforceable.” 5 M.R.S.A. § 8002(9)(B)(1).
* As evidence that the petitioner has considered this case to be the same as the Long Timers case, he filed
an appeal of this court’s order granting summary judgment in the Long Timers case using the title,
caption, and docket number in this case as his vehicle to do so.
6
In the court’s view, the mail policy is not a rule which would be susceptible to
judicial enforcement. Also, there can be no question that the Department of Corrections
has the authority to adopt this policy, and has no need to resort to the courts to enforce
it. Moreover, the petitioner has cited no fact, rationale, or precedent which would
permit the court to conclude otherwise.
Accordingly, the court would concur in the conclusions articulated in the
Amended Decision and Order which determined that DOC Policy 21.2 is a
departmental policy and therefore not subject to review via 5 M.R.S.A. § 8058(1).
The respondents also argue that the petitioner’s declaratory judgment count
must be dismissed because it did not comply with M.R. Civ. P. 80C(i). That rule reads
in pertinent part as follows:
(i) Joinder with Independent Action. If a claim for review of
governmental action under this rule is joined with a daim alleging an
independent basis for relief from governmental action, the petition shall
contain a separate count for each claim for relief asserted, setting forth the
facts relied upon, the legal basis of the claim, and the relief requested. A
party in a proceeding governed by this rule asserting such an independent
basis for relief shall file a motion no later than 10 days after the petition is
filed, requesting the court to specify the future course of proceedings. ....
So, because the petitioner had added a declaratory judgment claim with his Rule
80C appeal, he was required to file a motion to specify the future course of proceedings
within 10 days of the filing of the petition. Here, the petition was filed on August 11,
2003, but the petitioner filed duplicate motions to specify future course of proceedings
on September 23, 2003, and October 24, 2003, well after the 10-day deadline prescribed
in the rule had passed.
While such a misstep need not result in dismissal, it adds weight to the
cumulative effect of the other reasons to dismiss this claim, the most important of which
is this court’s determination that the declaratory judgment claim here is the same as the
one which was disposed via summary judgment in the Long Trmers case. As such, res
judicata would bar prosecution of this claim in any case.
The third basis cited by the respondents in their memorandum to dismiss this
case is that the petitioner failed to file his appeal with this court in a timely way. More
specifically, the respondents state that the Department of Corrections has a three level
grievance process with the Commissioner conducting the final step. Because the
petitioner did not follow this three-step process within the time periods prescribed, the
respondents argue, and the court concurs, that there never was any final agency action.
That being so, any appeal filed with this court would be untimely and would require
dismissal.
The petitioner seeks to be excused from the requirement that he exhaust
administrative remedies because to do so would have been futile, and because this case
is not an appeal of a final agency action. As to the second argument, it is clear that that
the petitioner is challenging DOC Policy 21.2 itself and as it has been applied to him.
As to either claim, he was required to exhaust the administrative procedure at the
agency level. His failure to do so, unless it meets an exception to this traditional rule of
administrative law, must result in the case being dismissed by the court. The statutory
exception to the need to exhaust the agency grievance process is that intermediate or
nonfinal agency action may be reviewed if “the final agency action would not provide
an adequate remedy.” 5 M.RS.A. § 11001(1). Futility in pursuing the final step in the
process may qualify as a basis to conclude that the process would not provide an
adequate remedy. Minster v. Town of Gray, 584 A.2d 646, 648 (Me. 1990). However,
“review of non-final agency actions should be undertaken only when ‘the parties face
the prospect of irreparable injury, with no practical means of procuring effective relief
8
after the close of the proceedings.” Northeast Occupational Exchange v. Bureau of
Rehabilitation,, 473 A.2d 406, 410 (Me. 1984).
In the court’s view, the petitioner cannot satisfy this test because, according to
the record, he was aware of the new mail policy and its effect on him in August of 2002
but waited for a year to file this petition. Not only would this passage of time belie any
assertion that the mail policy’s administration caused irreparable injury, it demonstrates
that the petitioner had ample time to pursue his grievance within the department before
turning to this court. Moreover, even if the final step the petitioner took, namely his
appeal to the warden, might be considered an intermediate agency action from which
he might appeal, the warden turned down the petitioner’s request on August 26, 2002,
and the appeal would need to have been filed with this court 30 days later. 5 M.RS.A.
§ 11002(3). Because, as noted, the appeal was filed in August of 2003, it would have to
be considered late and subject to dismissal.
Finally, in their reply memorandum, the respondents argue that their motion
ought to be granted because the petitioner’s opposition memorandum was filed more
than 21 days after the motion was filed. The respondents, however, never included the
notice required by MLR. Civ. P. 7(b)(1)(A) which would serve to warn the petitioner that
his failure to reply to the motion in 21 days would be deemed a waiver. By the plain
terms of that rule, the failure to include the notice permits the opposing party to be
heard even though his opposition is late.
So, because the respondents did not attach the notice prescribed by MLR. Civ.
P. 7(b)(1)(A), the motion cannot be granted on the basis that the opposition was late.
In the end, however, the motion will be granted for the reasons stated herein.
Accordingly, the clerk is DIRECTED to make the following entry:
Respondents’ Motion to Dismiss Petitioner Miller’s Petition for
Review (With Declaratory Judgment Claim) Pursuant to M.R. Civ.
P. 12(b)(1), (6) is GRANTED. AII other pending motions are DENIED as
moot. Case is DISMISSSED.
So ordered.
Dated: November /6 , 2004 alta An Le ZL.
Jghn R. Atwood ~
Sfistice Superior Court
8/11/03 Knox
Randy Robinson, Esq.
-4+5-Kalers-Gorner Rd PO Box 8013
Waldobore- ME---04542 Portland ME 04104
Date of
Entry
Date Filed Docket No. AP-03-016
County CONSOLIDATED WITH CV-03-061
Action 80C Appeal
MAINE DEPARTMENT OF CORRECTIONS,
MARTIN MAGNUSSON,
AARON J. MILLER vs. JEFFREY D. MERRILL AND STEVEN ROWE
Plaintiff’s Attorney Defendant’s Attorney
Pro Se ' Susan Sparaco, Esq.
Maine State Prison Assistant Attorney General
807 Cushing Rd 6 State House Station
Warren ME 04864 Augusta ME 04333
8/11/03
9/08/03
9/8/03
9/8/03
9/8/03
80C Appeal; $100 filing fee; Motion for Stay of Execution of Governmental
Action and Proposed Order filed by Aaron Miller.
On 9/3/03, Request filed by Aaron J. Miller to have this case consolidated
with CV-03-061.
Order filed:
ORDERED: The actions in AP-03~016 and CV-03-061 are consolidated
and will be heard together in further considerations.
Dated: 9/4/03
Alexander, J.
Copy mailed to Aaron Miller and AAG Sleek.
Temporary Restraining Order filed:
Ordered:
1. Pending further order of this court, the defendants and their
employees and agents, shall retain and not destroy or return any
mail addressed to, and not delivered to, the plaintiffs listed in
the petition appearing in the the file if that mail:
(a) has a verifiable return address appearing on the envelope or outer
cover, or otherwise clearly visible without opening the mail in any way;an
(b) Is First Class or Second Class mail, or if not First Class or Second
Class mail, primarily discusses religion or legal subject matter or discus:
issued relating to the November 2003 election; and
(c) Does not contain alcohol, drugs, weapons, food items, or any material
or subjects addressed in Procedure VI(D)(2) of policy number 21.2.
2. This Temporary Restraining Order shall expire at 4:00 p.m. on October
10, 2003, unless further extended by the court.
Dated: 9/4/03
Alexander, J.
Copy mailed to Aaron Miller and AAG Sleek.
Scheduling Order files:
Hearing on Preliminary injunction schedule for 10/8/02 at 9:30 am at the
Wiscasset Superior Court.