The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO.AP-2015-68
DANIELE. MUTTY,
Petitioner
DECISION AND ORDER
v.
MAINE DEPARTMENT OF
CORRECTIONS,
Respondent
The matter before the court is an appeal by Daniel Mutty, an inmate at the
Maine State Prison, from a disciplinary proceeding (MSP-2015-1423) that resulted
in the imposition of sanctions against him. 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
In a disciplinary incident report dated September 14, 2015, Ofc. Staples
charged the Petitioner with the following violations of the prison's disciplinary
policy: (1) "Disturbance" (Class B); 1 (2) "Order, Refusing To Obey" (Class C);2 (3)
"Provocation" (Class C), 3 and; (4) "Tattooing" (Class A). 4 See Policy 20.1, Section
VI, Procedure E. See also page 22 of Policy 20 .1 (all violations "include the
1
"Planning, attempting to create, or creating a disturbance involving no
destruction of property or injury to another person or threat of such destruction or
injury.''
2
!(Refusing to obey any lawful order, instruction, rule, or assignment. n
3
"Provocation by words or gesture of any person."
1
' «Tattooing or any other intentional puncturing of one's own skin or the skin of
another or the possession of tattooing equipment."
planning of, attempt of, and/or participation as an accessory in the violation."). The
alleged violations related to an incident that occurred between Ofc. Staples and the
Petitioner on the elate the report \Vas prepared while the officer addressed the
Petitioner in the Close B dayroom. The report described the encounter as follows:
On the above date and time inmate Mutty was
asked if both tattoo,s on his shinns [sic] were new
or if they were on his books. 5 Inmate stated "You
go fucking find out.,, I told inmate to stand up as he
was sitting in the dayroom during a Facility search.
I took custody of Inmate Mutty' s left arm and he
continued to push against me fighting against the
escort. I changed my escort to a transp011ation escort
and escorted prisoner Mutty along with additional
SOG Operators to Close-C pod. Prisoner ,has been
placed on EOS for his behavior and actions.
The incident report contained a notation of September 15, 2015 that Ofc.
Parsons documented the existence of physical evidence consisting of: "Photos of
I/M Mutty and undocumented tattoos." On September 17, 2015 the Petitioner made
the following written statement is response to the write-up:
No conduct in write up alleging tattooing,
the statement I have been alleged to have
made I did not. I said: "I don,t know you
tell me." No evidence in write up supporting
Disturbance or Order, Refusing to Obey, or
Provocation, officer never signed write-up.
On September 18, 2015 the Petitioner was notified that his disciplinary
hearing would be held on September 23, 2015. The Petitioner indicated that he
wished to call Ofc. Staples and Hother CO who BOS," presumably a reference to the
other conectional officer(s) who assisted in escorting the Petitioner to BOS
(Emergency Status Observation). The hearing was actually held on October 6,
5
It is the court's understanding that this phrase refers to tattoos that have been
documented to have existed prior to the irunate arriving at the prison.
2
2015. Sometime prior to the hearing the Petitioner wrote to the Deputy Warden
asking that a hearing officer other than Capt. Abbott be assigned to his hearing.
The Petitioner was instructed to address his request to the hearing officer at the time
of the hearing. From the administrative record provided to the court, it appears that
the Petitioner did renew his request, which was denied.
The Petitioner submitted a 3-page handwritten statement at the hearing, in
which he repeated his earlier claims that the charges against him were unsupported
by any evidence. He also requested that Ofc. Staples be called as a witness, as well
as the other SOG members as "it's the prisoner's belief their testimony will
corroborate the facts presented here by the prisoner." The Petitioner also requested
''that the recording which documented the entire alleged situation be reviewed, and
that Officer Staples be called who wore a camera on his shoulder that captured the
incident, which will evidence the statement the reporting officer alleges 'You go
fucking find out' is a false statement by this officer."
In the Summaiy of Hearing the hearing officer documented the following as
the Petitioner's statement: "I am requesting a different chairman because I have
several lawsuits against you. I am not guilty. I did not push back on the staff and I
did not make the statements that are in the record." Ofc. Staples apparently testified
by telephone and his testimony was summarized as follows: "Ofc. Staples said that
this prisoner did make statements that had profanity in it and did push back on his
and the other staff while escorting this prisoner." The hearing officer made no
reference to any other witness or any video recording. The Petitioner was found
guilty of all offenses "based on the staff report and the photo of the tattoos." The
hearing officer recommended a variety of dispositions for each violation, but the net
effect of the proposed discipline was: 60 days of disciplinary restriction, 50 days
loss of good time and a $100 monetary sanction.
3
The Petitioner filed a timely appeal, which was denied by the designee of the
Chief Administrative Officer on October 19, 2015. The Petition for Judicial
Review of Final Agency Action ,vas filed in this court on November 4, 2015.
DISCUSSION
The Law Court has frequently reaffirmed the principle that judicial review of
administrative agency decisions is "deferential and limited." Passadumkeag
lvfountain Friends v. Bd. of Envtl. Prat., 2014 ME 116, 1 12, 102 A.3d 1181
(quoting Friends of Lincoln Lakes v. Ed. of Envtl. Prat., 2010 ME 18, ,r 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
Departmental o(Environmental Protection, 2005 ME. 50, ,r 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, ,r
3, 985 A.2d 501. In particular, a party seeking to ove1iurn an agency's decision
bears the burden of showing that "no competent evidence" supports it. Stein v. Me.
Cr;m. Justice Academy, 2014 ME 82, ~ 11, 95 A.3d 612.
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. 1 ' Friends of Lincoln Lake v Board of Environmental
Protection, 2001 ME. 18 ~13, 989 A. 2d 1128. 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 witnesses and evidence,
supported by substantial evidence in the record, should not be disturbed by this
court. Cotton v Maine Employment Security Commission, 431 A. 2d 637, 640 (Me.
1981 ). The issue is not whether the court would have reached the same result the
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agency did, but whether the '(record contains competent and substantial evidence
that supports the result reached" by the agency. Seider v. Board of Examiners of
Psychologists, 2000 ME 206, ,I 8, 762 A.2d 551 quoting CWCO, Tnc. v.
Superintendentof!nsurance, 19971\IIE 226, ~ 6, 703 A. 2d 1258, 1261.
The court concludes that there was sufficient and substantial evidence in the
record to support the hearing officer's findings of guilt. A finding of guilty "must
be based upon a determination that it is more probable than not that the prisoner
committed the violation." Policy 20.l Section VI, Procedure C(l2).
Based upon the report and testimony of Ofc. Staples, as well as the
photographs of the tattoos on the Petitioner, the hearing officer could have
reasonably and rationally determined that the Petitioner was guilty all four offenses
with which he was charged.
The Petitioner's behavior m essentially challenging the officer by stating
"You go fucking find out" or, if the Petitioner's version is believed, "I don't know,
you tell me," and then physically resisting the officer's attempt to remove him from
the dayroom ultimately requiring the assistance of additiOnal escort staff, could
reasonably be deemed to qualify as "creating a disturbance."
Similarly, the Petitioner's action of "pushing aga~st me [Ofc. Staples]
fighting against the escort'' constituted a refusal to obey a lawful order or
instruction.
Likewise, the language used by the Petitioner in response to the officer's
inquiry about his tattoos could reasonably be perceived to be a ''[p ]rovocation by
words," or an attempt at one.
Finally, based on the photographs of the tattoos on the Petitioner's shin(s), a
fact finder could conclude that those tattoos were of recent origin or creation.
Moreover, the notation by Ofc. Parsons referred to the photographic evidence as
including "undocumented tattoos."
5
Based on all of this evidence, the court concludes that there was competent
evidence in the record to support the hearing officer,s findings.
The court rejects the Petitioner,s arg1..1ment that the hearing officer \Vas
disqualified from serving at the hearing because the Petitioner had other Rule 80C
peti~ions pending in the Superior Cami. Those types of judicial review petitions
are not a basis to remove a hearing officer for bias.
Officer Staples was called as a witness and apparently testified by telephone.
The other correctional officers who may have assisted Ofc. Staples in escorting the
Petitioner to EOS were apparently not called, and there is no indication in the
Summary of Hearing as to why they were not.
No video recording evidence was mentioned by the hearing officer and it is
not apparent from the administrative record whether any such video evidence
actually exists of the incident between the Petitioner and Ofc. Staples.
Regarding the witnesses who did not testify, 34-A M.R.S. §3032(6)(D)
provides that "[t]he client is entitled to call one or more witnesses, which right may
not be umeasonably withheld or restricted.' 1 Both this statutory provision and the
Supreme Court decision in Wolffv. McDonnell, 418 U.S. 539, 566 (1974) recognize
that the right to call witnesses must be subject to the discretionary authority of
prison officials "to keep the hearing within reasonable limits." There can be no
doubt that a hearing officer has broad discretion to control a disciplinary
proceeding, but the touchstone of that discretion is reasonableness.
It is true, as the Respondent points out (Brief at 6), that neither state law nor
Woljf v. McDonnell, requires the hearing officer to document the reason(s) why a
witness was not called or allowed to be called by a prisoner in a disciplinary
6
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action. Department of Corrections policy, however, does provide that "[w]henever
permission to call or question a witness is withheld or restricted, the disciplinary
hearing officer shall document the reason(s) in the written summary." Policy 20.1,
Section VI, Procedure C(8). A similar requirement applies to the presentation and
examination of exhibits. Procedure C(l 0). The Respondent argues that the
requirement of such documentation by the hearing officer "is not mandatory, but
directory only," and does not, according to the Policy, entitle an inmate to dismissal
of the discipline. Respondent's Brief at 6. See Procedure B(l 0) regarding dismissal
of disciplinary reports.
It may be that the failure of the hearing officer to comply with the directive to
document the reason(s) why witnesses were not called or exhibits were not
presented, does not entitle the prisoner to dismissal of the discipline at the
Department level. But failure to provide the documentation of reasons as required
by MDOC policy has a significant impact on the ability of the comi to engage in
meaningful judicial review of the agency's final action. By consistently failing to
provide such documentation in the administrative record, a reviewing court is left to
guess and speculate as to what happened at the agency level. The court cannot
easily evaluate whether the right to call and question witnesses, or the right to
present evidence, has been "umeasonably withheld or restricted" when the hearing
officer has never given a reason and the record is otherwise silent. Thus, the court
emphasizes again the importance of providing such documentation of reasons in
order to facilitate effective, efficient and meaningful judicial review.
6
"Although we do not prescribe it, it would be useful for the Committee [hearing
tribunal] to state its reason for refusing to call a witness, whether it be for
irrelevance, lack of necessity, or the hazards presented in individual cases.'' 418
U.S. at 566.
7
Based upon the administrative record, however, the court is able to conclude
that the additional corrections officers would not have offered any relevant
evidence. Ofc. Staples called in those officers to assist him in the escort of the
Petitioner, after Staples had taken the Petitioner's "left arm and he continued to
push against me fighting against the escort.',
Similarly, assuming a video of the incident exists and assuming it shows that
the Petitioner actually said - "I don't know. You tell me." - in response to Ofc.
Staples' question regarding the tattoos on Petitioner's shins, that language itself, in
context, could reasonably be viewed as a provocation by words.
Finally, the remaining claims raised by the Petitioner are without merit and
are not discussed further.
CONCLUSION
The entry is:
The Petition for Review of Final Agency Action is DENIED; the disciplinary
action in this matter (MSP-2015-1423) is AFFIRMED.
\.
DATED: November 3, 2016
Justice, Maine Superior Court
8