The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. AP-15-76
FITZGERALD CARRYL,
Petitioner
DECISION AND ORDER
v.
MAINE DEPARTMENT OF
CORRECTIONS,
Respondent
The matter before the court is an appeal by Fitzgerald Carryl, an inmate at the
Maine State Prison, from a disciplinary proceeding that resulted in the imposition of
sanctions against him for the offense of "influencing staff," 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
On October 9, 2015 Officer Steven French prepared a Disciplinary Incident
Report charging the Petitioner was the offense of: "influencing staff," a Class A
infraction. In his report, Officer French described the incident as follows:
"On the above date and approx. time I Ofc
French while working medium d pod was
informed by my zone control officer that
inmate had passed something to inmate
--
. I called inmate to my desk and
asked him if he had received anything from
inmate . The inmate said no. Ofc Payne
informed me that it was stuffed in his pants.
I asked the inmate if he had received anything
and if it was in his pants. Again the inmate replied no.
I told the inmate we will go inside the officer's bathroom
and conduct a strip search. As I turned to reach and
get blue gloves in the inmate acting like he was
touching his shoe and stuffed the dvd under my desk.
Ofc Payne informed me that he had done this. I told the
inmate to give it to me. The inmate handed me what
appeared to be a porn dvd. The picture on the disk and
the name was very suggestive of this. As the pod was
returning from chow inmate approached my
desk and said "French, you are always taking stuff from
us.' After more inmates returned from chow inmate Carry1,
F #126304 approached my desk. The inmates started
speaking to me saying things to the effect of no one ever
bother you French. He also asked if I had begun to write
up the inmates and if I hadn't if there was anything we
could do to make it go away. The inmate continued to
speak in this manner and I explained to the inmate that
this was a big deal and how I found it strange he knew
what had happened without being in the pod. I also
explained to the inmate that something unauthorized
inside the facility was a big deal. The inmate then left
my desk in a less than happy manner."
(Administrative Record, "AR" at 2).
Influencing staff is defined as "[p Jromising, offering, or g1vmg to any
Department staff any monetary or other benefit for the purpose of influencing such
staff in the performance of official duties." POLICY 20.1, page 17.
An investigation was initiated on October 10, 2015 and the Petitioner gave
the following statement:
"I did not even attempt to influence Officer
French. The inmate rule book subsection
disciplinary violations supports the fact as
well as testimony by Officer French."
(AR at 4).
On October 13, 2015 the Petitioner was notified that his disciplinary hearing
was scheduled for October 15, 2015. The Petitioner indicated that he wished to call
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Officer French as a witness at the hearing. (AR at 1). The disciplinary hearing was
actually held on October 22, 2015.
In the Summary of Hearing, the Disciplinary Hearing Officer documented
that the Petitioner continued to deny that he was attempting to influence Officer
French, although he acknowledged speaking to him but indicated that he was
respect to calling Officer French as a witness, the Hearing Officer wrote: "The
prisoner wanted to call Officer French as a witness. I have the Officers [sic]
detailed report there for [sic] I don't need to call the officer." (AR at 7). The
Petitioner was found guilty of the offense "based on the staff report." Id. The
Hearing Officer recommended a $100 monetary sanction, 30 days disciplinary
restriction and 30 days loss of good time. (AR at 8).
The Petitioner filed a timely appeal on November 3, 2015. (AR at 10-12).
The Chief Administrative Officer or designee affirmed the finding of guilt and the
recommended sanction on November 9, 2015. (AR at 14). This Petition for
Judicial Review of Pinal Agency Action was filed on December 14, 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. Ed. of Envtl. Prat., 2014 ME 116, ~ 12, 102 A.3 d 1181
(quoting Friends of Lincoln Lakes v. Ed. of Envtl. Prat., 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
Departmental o(Environmental Protection, 2005 ME. 50, ~ 7, 870 A.2d 566. The
party seeking to vacate a state agency decision has the burden of persuasion on
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appeal. Anderson v Maine Public Employees Retirement System, 2009 ME. 134, ,r
3, 985 A.2d 501. In particular, a party seeking to overturn an agency's decision
bears the burden of showing that "no competent evidence" supports it. Stein v. Me.
Crim. Justice Academy, 2014 ME 82, ,r 11, 95 A.3d 612.
This court must examine "the entire record to determine whether, on the basis
find the facts as it did." Friends of Lincoln Lake v Board of Environmental
Protection, 2001 ME. 18 ,r13, 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 ME 206, ,r 8, 762 A.2d 551 quoting CWCO, Inc. v.
Superintendent ofInsurance, 1997 ME 226, ,r 6, 703 A. 2d 1258, 1261.
Based upon a review of the entire record, the court is satisfied that the
Hearing Officer's finding that the Petitioner was guilty of "influencing staff" is
supported by competent and substantial evidence. In the context of the situation
described by Officer French, the Hearing Officer could have reasonably concluded
that the Petitioner was attempting to determine whether there was something that
could be done for the benefit of the officer to persuade him not to move forward
with issuing write-ups to inmates. While the Petitioner claimed that he was not
attempting to influence the officer and that his words must have been
misinterpreted, it was up to the Hearing Officer to assess the weight and credibility
of the evidence, including the Petitioner's explanation.
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The failure of the Hearing Officer to call Officer French as a witness as
requested by the Petitioner is more troublesome. The Hearing Officer stated that he
did not need to hear the officer's testimony as a witness because he had the officer's
detailed written report. (AR at 7). The rights to call and question witnesses at a
disciplinary hearing are rights that are granted to the inmate (client). 34-A M.R.S.
Officer. Rather, they exist so as to effectuate the goal of providing a fair and
impartial hearing. The Hearing Officer's statement that he did not need the
officer's testimony because he had the report, belies a fundamental
misunderstanding of the importance of the rights to call and question witnesses by
those inmates facing disciplinary action.
The Hearing Officer is required to provide an impartial hearing. Hearing live
testimony from the accusing witness, who can be questioned by the inmate who is
the subject of the disciplinary hearing, may uncover additional facts, ambiguities
and nuances that are not revealed in the officer's written report. Moreover, the
Hearing Officer's statement as to why he had no need for the officer's live
testimony suggests a pre-disposition on his part, based solely on the written report,
that is contrary to the statutory mandate of an impartial hearing.
It is, of course, true that the right to call and question witnesses is subject to
reasonable regulation and control. 1 In this court's view, however, it is not
reasonable to categorically deny an inmate's request to call and question the officer
who brought the charge solely because the Hearing Officer had the officer's written
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The court has examined the opinion in Brown v. Corsini, 657 F. Supp. 2d 296
(D. Mass. 2009), cited by the Respondent for the proposition that hearing officers
must have the discretion to keep disciplinary hearing within reasonable limits, a
proposition that both the Maine Legislature and this court recognize. In that case,
however, the reporting/complaining officers were called as witnesses and testified
at the disciplinary hearing, although some collateral witnesses were not called.
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report. Such an action renders illusory the statutory rights to call and question
witnesses, particularly those witnesses initiating the charges against the inmate.
CONCLUSION
The entry is:
The Petition for Review of Final Agency Action is GRANTED, the
REMANDED to the Department of Corrections with instructions to conduct a
disciplinary hearing that complies with 34-A M.R.S. §3032(6).
DATED: October 5, 2016
Justice, Maine Superior Court
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