The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. AP-2015-08
EARLE. MOORE,
Petitioner
DECISION AND ORDER
v.
MAINE DEPARTMENT OF
CORRECTIONS,
Respondent
The matter before the court is an appeal by Earl Moore, an inmate at the
Maine State Prison, from a disciplinary proceeding (MSP-2014-2083) 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
In a disciplinary incident report dated December 9, 2014 Cpl. Newth charged
the Petitioner with the Class A violation of "trafficking," l alleged to have occurred
on December 8, 2014. (Disciplinary Case No. MSP-2014-2083). The report simply
stated: "Positive drug test - auto created by Drug Screening record."
(Administrative Record, A.R., at 2). A copy of the MDOC form for requesting a
urinalysis test of the Petitioner is included in the record of this case, and reflects
1
"Trafficking of a drug, regardless of whether or not prescribed to the prisoner,
or possession or use of a prescription drug not prescribed to the prisoner by the
facility healthcare staff, or possession or use of a non-prescribed scheduled drug of
the W, X, Y classification, or related paraphernalia, as defined by 17-A M.R.S.A.
Class A." Policy 20. 1, Procedure E.
that the Petitioner tested positive for "BUP", i.e., Suboxone. A.R. at 5. A
photograph of the test has also been made a part of the record. A.R. at 6.
The Petitioner was notified that his disciplinary hearing would be held on
December 15, 2014 and it was, in fact, held on that date. A.R. at 1, 7. At the
hearing, the Petitioner stated that he was not guilty of the office and pointed out that
the request form for his test was incomplete and lacked a "sample number." He
also asserted that the officer who performed the drug test was unqualified to do so.
The hearing officer found the Petitioner guilty "based on the photo of the test and
the request. The request didn't have the DOC number but did have his name. The
test did have all required information." A.R. at 7. The hearing officer
recommended 30 days disciplinary restriction, 3 0 days loss of good time and a $100
monetary sanction. A.R. at 8.
The Petitioner filed a timely appeal to the designee of the Chief
Administrative Officer, who affirmed the decision and recommended disposition on
December 30, 2014. A.R. at 9. The Petition for Judicial Review of Final Agency
2
Action was filed in this court on February 13, 2015.
DISCUSSION
The Law Court has frequently reaffirmed the principle that 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. Prat., 2010 11E 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
2
The respondent moved to dismiss the petition on the basis that it was untimely
and, therefore, the court lacked jurisdiction to consider it. On August 7, 2015 the
court (Marden, J.) denied the motion, concluding that there was a factual question
as whether the petition was timely based on when the Petitioner received notice of
the denial of his appeal.
2
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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( E n vironmental Protection, 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 En112Joyees Retirement S ystem, 2009 ME. 134, ir
3, 985 A.2d 501. In particular, a party seeking to overturn an agency's decision
bears tlie burden of showing that "no competent evidence" supports it. Stein v. Me.
Crim. Justice Academy, 2014 IVIB 82, ~ 1], 95 A.3d 612.
This cou1i 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, 200 l :tvffi. 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
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 :tv:lE 206, ~ 8, 762 A.2d 551 quoting CWCO, Inc. v.
Superintendent ofInsurance, 1997 ME 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 finding 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," and "[a] positive drug . . test result . . lS
sufficient to meet this standard for disciplinary violations of. . . . Trafficking .
" Policy 20.1, Section VI, Procedure C(12). It is not necessary for a
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confirmatory, independent test be performed for purposes of a disciplinary
proceeding. Policy 20.2, Section VI, Procedure B(5). Evidence by means of a
urinalysis test that Petitioner was positive for Suboxone constituted substantial
evidence supporting the hearing officer's findings and conclusions.
Department of Corrections policy specifies that the "Request for Urinalysis
Test Form" "shall be filled out completely in ink," and that only those employees
who have been properly trained may perform drug collection and testing. Policy
20.2, Section VI, Procedure A(4) and Procedure B(l)(a). The fact that no sample
number was included on the Petitioner's test fo1m goes to the weight of the
evidence, and does not require or even pennit this court to reverse the discipline in
this matter. It was reasonable for the hearing officer to conclude that the absence of
the sample number did not undermine the reliability of the test, particularly since
the form contained the Petitioner's name. Moreover, the Petitioner's bald assertion
that the officer who perform his test was "unskilled" or unqualified to do so, was a
factual issue to be resolved by the hearing officer.
Finally, the remaining claims raised by the Petitioner are without merit and
are not discussed fmther.
CONCLUSION
The entry is:
The Petition for Review of Final Agency Action is DENIED; the disciplinary
action in this matter (MSP-2014-2083) is AFFIRMED .
...
DATED: October 31, 2016
l
Justice, Maine Superior Court
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