The opinion
STATE OF MAINE STATE OF MAINE SUPERIOR COURT
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KNOX, ss. d ~ U # 4 3 #CU.&T DOCKET NO. AP-04-004
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JEFFREY SIMPSON,
Petitioner
REaNEB kRD PftED
v. DECISION AND ORDER
MAINE DEPARTMENT
OF CORRECTIONS, et al.,
Respondents
T h s matter is before the court on petition for review of final agency action.'
In h s petition, the movant seeks review under M.R. Civ. P. 80C. He further
makes claim for relief under the federal Civil Rights Act, 42 U.S.C. § 1983 et seq. On
June 1, 2004, the respondents moved to dismiss the independent action inasmuch as the
petition does not provide separate counts for each claim in h s independent action as
required by M.R. Civ. P. 80C(i). The petitioner has not filed a motion requesting the
court to specify the future course of proceedings and that motion must be granted.
Inasmuch as the petitioner has not prosecuted h s disagreement with the decision to
place h m in administrative segregation or to retain h m in administrative segregation
before h s court, the court deems those issues are waived.
The petitioner, in his petition, alleges that while an inmate at the Maine State
Prison, the respondents violated h s rights and the law during both h s administrative
segregation review board hearing and also h s disciplinary hearing on relevant punitive
charges. He charges the Prison failed to make an independent determination of the
1
Petitioner filed a petition with the court on February 13, 2004. He filed a second petition on April 26,
2004, a third petition on May 3,2004, and an amended petition filed June 15,2004. The petitioner advised
the court that he wished to proceed on the petition of May 3,2004, which had actually been served on the
respondents.
reliability of confidential information used as a basis to have the petitioner placed in
administrative segregation, and that false inculpatory reports and statements were
introduced in h s administrative segregation hearing and h s disciplinary hearing. He
alleges h s disciplinary hearing was continued for 32 days and should not have
occurred inasmuch as departmental policy 20.1 bars any continuance beyond 30 days.
Finally, he argues that he was denied the right to question a corrections sergeant who
was not present at the hearing and who filed the alleged false reports being relied on by
the hearing officer. He further argues that the same sergeant destroyed a letter alleged
to contain threats to the victim of the attempted assault.
In h s brief, the petitioner confines h s argument to an allegation that the
respondent violated Policy 20.1 Procedure B-12(b), page 6, and that as a result, h s
disciplinary hearing was time barred. Further, he asserts under the circumstances the
hearing officer lacked jurisdction to proceed. Secondly, he argues that he was denied
the right to cross-examine a witness via the phone. Allegedly h s is the victim and
complaining witness who was also an inmate of the institution. Finally, petitioner
argues that there is no documentation of a cost assessment of the damage to the mirror,
an element on which he was ordered to make restitution to the respondents.
The disciplinary hearing was held on March 15, 2004. T h s was a continued
hearing from an initial hearing date of February 12, 2004. By the numbers, it is a
continuance of 32 days. Policy #20.1 Prison Discipline, under Chapter 20 Prisoner
Disciplinary Policy, contains a provision in paragraph 12 titled "Disciplinary Hearing."
Subparagraph (b) is titled "Continuance."
Either before or during a hearing, the disciplinary hearing officer may
continue the hearing for good cause shown, but in, no case may a
continuance be for more than 30 additional days.. .
The respondent first points out to the court that 30 days after February 12, 2004,
was March 13, 2004, a Saturday. Utilizing the standard of the courts, a deadline of
Saturday, Sunday or legal holiday is not counted. The last day is the next business day.
Secondly, the respondents argue that Prisoner Disciplinary Policy 20.1 in paragraph 5
titled "Dismissal" states, "A disciplinary report may be dismissed if the facts as
described in their disciplinary report do not constitute a violation or if the required
procedure was not followed by a staff involved in the disciplinary process unless the
discrepancy from the required procedure is minor and techrucal in nature only." The
court agrees with the State that the two-day dfferential is minor and technical only.
Petitioner claims that he requested a phone call be made to the victim of the
alleged assault who was placed in protective custody. He also claims that it was the
petitioner who made the attempt to assault h m and the disciplinary hearing officer
considered a false report of that statement. The petitioner is attaclung the contradiction
between the two statements but he admits, in the "Statement of Facts" portion of h s
petition that the victim approached the corrections sergeant and told h m that the
plaintiff was the individual who had attempted to assault him and that the plaintiff had
destroyed the mirror. Further, during the proceedings, the petitioner has admitted that
"somehng" happened but has refused to elaborate because of the possibility of
criminal charges.
The record indicates the petitioner did not opt to call any witnesses to h s
disciplinary hearing. Therefore, utilizing the standard found in Prisoner Disciplinary
Policy 20.1 Procedure B, 12, "A finding of guilt must be based on a determination that
is more probable than not that the prisoner committed the violation," h s inability to
cross-examine the victim is without prejudice as the probative fact that the victim made
such an accusation has not been denied.
As part of the disciplinary decision, the petitioner was ordered to provide
restitution to the respondent in the amount of $450 as replacement cost for a mirror that
was in the recreation area, including labor for installation. Petitioner argues that there
is no evidence of that amount other than the investigator reporting that the recreation
supervisor made the statement that the replacement cost of the mirror would be $450,
including labor. It is respondent's position that is sufficient. The court disagrees.
Whle restitution is imposed as part of a disciplinary procedure, it is more in the nature
of a civil claim enforced through the disciplinary process. As such, clearly the prisoner
is entitled to more than the bald statement by an employee as to the cost of restoration
to be assessed against a prisoner. The Prisoner Disciplinary Policy provides certain
fundamental due process rights to the prisoner, including the right to a hearing, to be
present at that hearing, to have the assistance of a counsel substitute, to call witnesses
and present evidence. There are certain limitations consistent with the setting w i h n a
confinement facility and therefore certain rights may only be exercised with the
permission of the disciplinary hearing officer.
20.1 Prisoner Discipline, Procedure B (12)(c) mandates: "A finding of guilt or
innocence must rest solely upon evidence produced at the hearing, including, but not
limited to, the incident report, the investigative report, other exhbits and the testimony
of witnesses." The recreation director was not a witness and there is no evidence that
any exhbit was offered to support the restitution amount.
The entry will be:
The decision of the Chef Administrative Officer dated March 24,
2004, in the matter of Jeffrey Simpson NIDOC #25945, Disciplinary Case
No. MSP C 04-020 is AFFIRMED IN PART; the assessment of $450 in
restitution is REVERSED.
Dated: June ,2005
Donald H. Marden
Justice, Superior Court
Date Filed 2/ 13/04 Knox Docket No. AP-04-004
County
80C Appeal
Action
MAINE DEPARTMENT OF CORRECTIONS,
RANDY THOMAS, C.O. PLESSNER,
JEFFREY D. MERRILL, N . RILEY,
CPT. R . PEASE, STG. A. MENDEZ,
JEFFREY E. SIMPSON vs. SGT. ROBERTS, C.W. SEMPLE AND C.O. HARTLEY
Plaintiff's Attorney Defendant's Attorney
P r o Se Diane S l e e k , Esq.
Maine S t a t e P r i s o n A s s i s t a n t Attorney General
807 Cushing Rd
Warren ME 04864 6 S t a t e House S t a t i o n
Augusta ME 04333
Date of
Entry
On 2 / 1 3 / 0 4 , 80C Appeal, Summary s h e e t , and A p p l i c a t i o n t o Proceed Without
Payment of F e e s ; C e r t i f i c a t e from t h e Maine S t a t e P r i s o n and T r u s t Account
S t a t e m e n t f i l e d by J e f f r e y Simpson.
Order G r a n t i n g Leave t o Proceed i n Forma P a u p e r i s f i l e d :
The c o u r t f i n d s t h a t t h e c o m p l a i n t i s n o t f r i v o l o u s and t h e a p p l i c a n t
i s p r o c e e d i n g i n good f a i t h .
A s t o t h e i s s u e d of w h e t h e r t h e a p p l i c a n t i s w i t h o u t s u f f i c i e n t f u n d s
t o pay c e r t a i n f e e s o r c o s t , t h e f o l l o w i n g s h a l l be t h e o r d e r :
The a p p l i c a t i o n t o proceed i n forma p a u p e r i s i s g r a n t e d and prepayment
of t h e f u l l amount of t h e f i l i n g f e e i s waived.
An i n i t i a l p a r t i a l f i l i n g f e e i s h e r e b y a s s e s s e d i n t h e amount of $0.38.
Subsequent payments of 20% of t h e p l a i n t i f f ' s p r i o r monthly income s h a l l
be forwarded t o t h e C o u r t by t h e i n s t i t u t i o n e a c h t i m e t h e amount i n t h e
p r i s o n e r ' s a c c o u n t exceeds $10.00 u n t i l s u c h t i m e a s t h e e n t i r e f e e of
$120.00 h a s b e e n p a i d .
Now, t h e r e f o r e , t h e p l a i n t i f f s h a l l n o t i f y t h e Court no l a t e r t h a n March
25, 2004, w h e t h e r h e i n t e n d s t o i n c u r t h e c o s t %f t h e f i l i n g f e e and proceed
with t h i s a c t i o n o r whether he i n t e n d s t o forgo t h i s l i t i g a t i o n a t t h i s
time. Should t h e p l a i n t i f f f a i l t o s o n o t i f y t h e C o u r t , t h i s m a t t e r s h a l l
be d i s m i s s e d f o r l a c k of p r o s e c u t i o n . The p l a i n t i f f i s h e r e b y p u t on n o t i c e
t h a t i f h e c h o o s e s t o proceed w i t h t h i s a c t i o n , h e w i l l b e r e s p o n s i b l e