Burr v. Bouffard

• Court: Superior Court of Maine
• Decided: September 24, 2019
• Docket: KENap-14-57
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC ss CV-AP-14-57

DOUGLAS BURR,

Plaintiff,

V. FINDINGS AND ORDER FOR ENTRY OF JUDGMENT

RODNEY BOUFFARD, et al.,

Defendants

Background

This matter was tried before the Court on June 11 and June 12, 2019. The Plaintiff is

represented by Attorney Eric Mehnert and the Defendants are represented by Assistant Attorneys

General James Fortin and Jason Anton. The parties filed post-trial briefs, the last of which was

received by the Court on August 15, 2019.

This case has a significant procedural history . On September 14, 2014 the Plaintiff filed a

Petition under Rule 80C of the Maine Rules of Civil Procedure (Count I). He also brought two

independent claims pursuant to 42 U.S.C. Section 1983, the first for Injunctive Relief (Count II)

and the second for damages, including punitive damages (Count III). On November 25, 2014 the

Defendants filed a Motion to Dismiss the claims in Counts I and II as moot, which the Court

denied by Order dated March 23, 2015. In that Order the Court concluded as a matter of law that

the Defendants could not hold the Plaintiff indefinitely pursuant to its disciplinary regulations,

and that the Plaintiff had adequately pleaded a claim for injunctive relief under 42 U.S.C. Section 1983 as he had a liberty interest not to remain confined in the Special Management Unit without

due process.

On April 6, 2015 the Defendants filed a Motion to Reconsider, arguing that the Court had

conflated the sanctions imposed on Plaintiff pursuant to the disciplinary policy with a separate

decision, made pursuant to the Department's administrative segregation policy, to place the

Plaintiff in the SMU. This was the first time the Defendants represented to the Court that

Plaintiff had been confined in the SMU primarily pursuant to its administrative segregation

policy and not solely for a disciplinary violation . On August 18, 2015, the Court denied that

Motion from the bench after oral argument, and a Scheduling Order was issued. On August 27,

2015 the agency record was filed by AAG Fortin, and on August 31, 2015 he filed a letter with

the Court stating that he mistakenly advised the Court during oral argument that the Rule SOC

record had been expunged by the Department of Corrections as it had not. A Consent

Confidentiality Order was issued on February 5, 2016. On May 10, 2016 the Plaintiff filed his

Rule SOC Brief pursuant to the (extended) Scheduling Order, along with a Motion for Partial

Summary Judgment on Counts II and III of his Complaint. On July 1, 2016 Defendants filed

their Cross Motion for Summary Judgment.

By Order dated January 27, 2017 the Court granted the Defendants' Motion for Summary

Judgment on Count III for damages. It granted the Plaintiff's Rule SOC Appeal in part, and

ordered additional briefing by the parties on the Defendants' claim that Plaintiff's remaining

claims were moot, and that no exception to the mootness doctrine applied to those claims. On

July 14, 2017 the Court denied the Defendants' Motion for Summary Judgment, finding that the

mootness exception for questions of great public concern applied to Plaintiff's claim for

2 declaratory and injunctive relief in Count II. On August 17, 2017 the Defendants filed a 1

Supplemental Motion for Summary Judgment which was denied on January 2, 2018. The case

was set for trial more than once, but was continued by agreement of the parties.

The Court has reviewed the trial transcripts and exhibits, along with the video trial

testimony of Plaintiff's expert, Larry Reid, and issues the following findings and conclusions.

Findings

Plaintiff is serving a 59-year sentence at the Maine State Prison for murder. Between

mid-September of 2014 and early 2016 Plaintiff spent approximately 22 months in what

Defendants refer to as "restrictive housing." For the first approximately 10 months of his time in

restrictive housing Plaintiff lived in what the parties agree is the most restrictive unit at the

Maine State Prison. The parties do not exactly agree on how the cell in which he was housed

compares with cells in other parts of the prison, but the Court finds that it was approximately 8

feet by 12 feet. Two days a week he was locked in his cell for 24 hours. He was allowed only

three showers a week, recreation was limited to five hours per week and while on recreation he

was in hand and feet restraints. Meals were delivered through a slot in the door. He was allowed

only one "no contact" visit, and one phone call per week.

Both Plaintiff and Deputy Warden Ross described the conditions as chaotic, with people

yelling, banging on doors, throwing feces, engaging in self harm, and being subject to extractions

when prisoners are removed forcibly from their cells for misbehavior. Plaintiff testified that

" ... and not only that, you have to deal with everything that's going on around you. There's

constantly people self-harming themselves down there. So there's blood in the corridors at all

, The motion was erroneously dated August 17, 2016.

3 times - not at all times, but daily or weekly there's a lot of people hurting themselves. So you

have no choice but to deal with that, because it's basically right in front of you." Id. at 65; (Trial

Transcript June 12, 2019, pg. 84).

The parties agree that Plaintiff was initially placed in segregation after the prison's Inner

Perimeter Security Team began investigating the Plaintiff and his wife for drug trafficking . On

June 12, 2014 Deputy Warden Ross ordered that Plaintiff be placed on "Emergency Observation

Status" (EOS) pending further investigation into the trafficking allegations. An incident report

was entered into CORIS which is the prison's electronic data base. At the same time, Corporal

Mark Engstfeld filled out a "disciplinary report" and charged Plaintiff with "trafficking" as

defined by the Department of Corrections regualations. The shift supervisor, Ken Vigue, did not

sign the report as required within the 72 hours required by Department policy because, according

to Corporal Engstfeld, it just "fell through the cracks." (June 11, 2019 Trial Transcript, pg. 150).'

The parties do not agree on how long Plaintiff remained on EOS status in the prison

infirmary, and they do not agree on what the justification was for initially holding him in

segregation. While it is clear that the Plaintiff underwent a disciplinary hearing, they do not

agree as to whether the 20 days that were imposed as the sanction was served in "D-seg" or "A­

Seg" or even when he was actually serving the 20-day sanction. The confusion is compounded

by the position taken on earlier in this litigation by the Defendants that the Plaintiff was held in

segregation pursuant to the prison's disciplinary process while now , according to the

Department's brief, he was placed on "administrative segregation" as early as June 14, 2014

pending investigation into the trafficking allegations. According to the Defendants, after his June

, The State ' s position was that this failure to adhere to the 72-hour rule was the reason that it "dismissed" the discipline proceedings against Plaintiff and effectively conceded the Plaintiff' s Rule 80C claim. (Id. at pg 146). After trial, the parties filed a Joint Stipulation that states that Plaintiff's disciplinary case (MSP-2014-1138) was expunged as of January 30, 2017.

4 14, 2014 placement in segregation, Plaintiff's status was reviewed "frequently" pursuant to

policy. The Department argues now essentially that he was being held in "ad seg" while

"simultaneously" waiting for the discipline process to unfold.

The disciplinary hearing scheduled for June 23, 2014 was apparently continued at the

Plaintiff's request and rescheduled for July 14, 2014. The Court finds that at some point prior to

that hearing the Plaintiff was either read or given a copy of a report done by Capt. Engstfeld on

June 26, 2014 which was based in large part on the CORIS summary. At the hearing, Plaintiff

did not call any witnesses or offer any defense as he was concerned with the possibility of

criminal charges. He was adjudged guilty of trafficking, and 20 days of disciplinary segregation

were imposed as punishment. He also lost 20 days of good time and received a $100 fine.'

On August 22, 2014 Capt. John Howlett recommended that Plaintiff be released from

"ad-seg" and begin serving his 20-day disciplinary sanction. He gave two reasons for this

recommendation. As he testified, "there was no reason for him not to go do his D time" and "to

be honest with you I had never had any problem with him." Id. pg. 265,269. That decision was

overridden by Dep. Warden Ross on August 25, 2014. /d. pg. 26.

Plaintiff's Rule 80C Petition was filed on September 4, 2014 after the discipline was

internally affirmed within the prison.' On December 17, 2014 pursuant to another review, Capt.

Howlett once again recommended that Petitioner be removed from administrative segregation

stating that "I wouldn't recommend a release if he had been a problem" at the time. Id. pg. 271.

This was also denied by Dep. Warden Ross. On January 14, 2014 Capt. Howlett recommended

· It is not disputed that the maximum punishment that the prison can impose for a disciplinary violation is 30 days. , The Department responded to the Petition by dismissing the disciplinary violation and vacating the sanctions. His disciplinary record was not expunged until January 30, 2017.

5 for the third time that Plaintiff be removed from administrative segregation, and Dep. Warden

Ross again over-ruled the recommendation. ,

By April of 2015 the parties agree that the Plaintiff was transferred to the Administrative

Control Unit" (ACU) of the prison. This unit provides more privileges than those available in

administrative segregation but is still significantly more restrictive than general population. The

ACU provides a "level system" that allows for increased privileges as the prisoner progresses.

Plaintiff agreed that he had more privileges in the ACU in that he was allowed an AM/FM radio,

a hot pot to heat water in his cell, and he was allowed more visits and phone calls. He remained

in the ACU until late March 2016 when he was finally returned to general population.

Dr. Joseph Fitpatrick was Commisioner of the Department of Corrections in June of

2014• when Plaintiff began his placement in "restrictive housing." He testified that when a

prisoner was placed in administrative segregation his status is supposed to be reviewed

frequently by a "team" of correction officers who vote on what should happen to the prisoner's

placement. The Warden or Warden designee can then overrule the recommendation of the team.

He stated that he understood that Plaintiff was placed in segregation for "trafficking in prison

contraband" but agrees Plaintiff was never specifically alleged to present a threat to other

prisoners in the sense of having made any direct threat of physical harm. He testified, however,

'Capt. Howlett explained that he was never told why Dep. Warden Ross kept overruling the recommendations, but acknowledged "And it's like I said, I don't know what he knows, I mean I can only go so far as for what I know." Id. pg. 272. He also said that a large majority of the ad seg board's recommendations were followed by prison administrators, and the prisoner would be released from administrative segregation: "What would be recommended by the ad seg board, when we was doing them, then they would get released. Unless it was more than - most of the time if they came down and we did a board and then said, okay, well, he's got disciplinary time. Go ahead and release him from ad seg - or his ad seg and put him on his D ti me, get it out of the way, and then they would move them out. Sometimes if you do your D time you don't actually move. If you' redoing disciplinary segregation time and you' re on ad seg, it's just a matter of a status change. If you have 30 days to do, I'm not going to move you two cells down, okay? Id. pg. 272-73. ' Dr. Fitzpatrick still works for the Department as Clinical Director and oversees medical and mental health services. He has worked for the Department for approximately 25 years and was originally appointed acting Commissioner in April of 2014 for six months before being confirmed as Commissioner.

6 that trafficking in contraband can result in threats being made and violence occurring. He stated,

"I think any time you introduce an element that's a commodity that people are willing to hurt

other people for, you have a possibility of physical violence."

There is nothing in the record to support any finding that the Plaintiff physically attacked

or made any threat of violence to any individual in the days or months leading up to his

confinement in restrictive housing. There is also nothing in the record that supports any finding

that he engaged in any misconduct of any kind during the 22 months he was kept out of general

population.

Dr . Fitzpatrick testified that he was not directly involved in reviewing Plaintiff' s status in

ad-seg, and that conducting disciplinary hearings was never a part of his job as Commissioner.

He stated he would have been aware of the Rule 80C appeal filed in the Superior Court in

September of 2014. He also did not recall when he became directly involved in the reviews

conducted of Plaintiff's status while he was in the ACU , but Plaintiff's Exh. 12 shows that Dr.

Fitzpatrick affirmed the Plaintiff's initial placement into the ACU on April 9, 2015. He also did

not recall any specifics regarding the reasons why Plaintiff was retained in the ACU, but that in

February of 2016 he was presented with an appeal by Plaintiff 'of a decision to keep him in the

ACU. He concluded that the proffered rationale for keeping him in the ACU - the requirement

that Plaintiff admit that he was engaged in "trafficking" before he could return to general

population- made no sense, and served no legitimate criminological purpose. Plaintiff testified

that he had been told over an extended period of time that he was going to remain in restrictive

housing until he admitted that he was "trafficking." Dr. Fitzpatrick agreed that it was not

appropriate to use restrictive housing, either ad-seg or ACU , as a method to extract information

· The parties agree that Plaintiff was encouraged to appeal this decision by Ryan Thornell who Dr. Fitzpatrick hired specifically to review and reform MSP's policies and practices on segregation .

7 from inmates . Id. pg. 54. He stated, "Because quite honestly, based on Mr. Burr's time that he

had already served in segregation and the amount of programming that he had done, I did not see

the end point of him admitting to something. I didn't see that that brought us anywhere in terms

of his rehabilitation ... quite honestly, the literature is all over the place on acknowledgement of a

crime and whether that aids or doesn't aid your progression in treatment and rehabilitation. So

there's no solid reason to force an admission." Id. at 22, 23.

Correctional Consultant Larry Reid testified for the Plaintiff. He does training for

National Institute of Corrections on how to "manage people who are in a high level of

confinement." (Trial Deposition , pg.5) . He stated that he focuses on "the constitutionality issues

and concerns that are prevalent ... in restrictive housing." Id. He noted that the trend nationally is

to reduce the number of prisoners who live in restrictive housing. The reason for the shift he

explained is the recognition that restrictive housing has negative impacts on prisoners and "does

not change behavior." Id. He has worked for the Colorado Department of Corrections off and on

since 1987 including working as the Director of Central Classification which entailed making

sure that all classifications were appropriate, and that all policy and procedures were followed.

Id. pg 8. Over the course of his career he has worked at five different facilities as Warden,

including at a mental health prison, two "supermax" prisons and a prison for women. He gave

examples of the types of classifications that prisoners are given and how that affects their

housing and programming. He has also been extensively involved with the Department of

Justice's National Institute of Corrections to create a program for people who live in

administrative segregation and how to enable them to progress out of that kind of housing

through a "structured process - extensive reviews , extensive documentation" and return to

general population . He has worked with over 45 states as a consultant, and has testified as an

8 expert witness approximately twelve times about restrictive housing-related issues in Colorado,

Florida, Wyoming and Florida. Id. pg. 16, 19.

Mr. Reid testified that the policies of the Maine Department of Corrections that he

reviewed were problematic in that they allowed for personal interpretations of important terms

and functions, and that the policies were not consistently reviewed, updated or even signed by

the appropriate DOC commissioner. He also described the policies as being "incongruent" in that

it was difficult to determine what the actual process was for placing prisoners in restrictive

housing. He stated that it was troubling from his review of the depositions of the staff involved in

the Plaintiff's case that they could not even agree on what the process was. He noted that one of

the hearing officers in Plaintiff's case had received no training on how to run such a review

hearing, contrary to stated policy. Id. pg. 28. He testified that staff could not agree on what the

EOS policy was and how it was applied in this case. He stated that sometimes the Plaintiff was

accused of attempting to introduce contraband to the facility, and sometimes accused of actually

accomplishing that. Id. pg. 29-30. He testified that a prisoner could be placed in EOS if they

posed a "threat to the safety of others" but that "threat" was not defined, leaving any correctional

official to use their own subjective and personal definition of threat to "immediately remove"

someone from general population. Id. pg. 32. He stated that to him, the definition of "threat" as

applied to the Plaintiff, given the amount of time the Plaintiff was out of general population, had

to mean that he had made a "physical threat." However, he noted there was just no evidence that

Plaintiff had made such a threat. Given this lack of succinct, concrete definitions, staff had a very

9 (

difficult time following the policy, and a prisoner could not fairly defend him or herself against

an allegation of being a "threat". '

He also concluded that the Plaintiff's due process rights were violated in that the review

hearings were done by staff that were not impartial, and that the allegations against Plaintiff were

consistently and repeatedly misidentified throughout the process. More fundamentally, he stated

that the Plaintiff's due process rights were violated in that throughout his extended stay in

segregation they could articulate no reason for keeping him there. In other words, as stated

above, over a 22-month period he exhibited no conduct that would suggest that he was a threat to

anyone. Id. pg. 43. He noted the lack of planning in the reviews conducted for Plaintiff's return

to general population which meant that the Plaintiff could have no way to know what, if

anything, he could do to work or earn his way out of segregation. That is, instead of providing

objective criteria - including a case management plan with goals, recording of observation of

how he progressed in the plan, and how he interacted with others - for Plaintiff there was "no

light at the end of the tunnel." Id. pg. 70

In June of 2015 Ryan Thornell was hired by the Department of Corrections as Director of

Correctional Programming, and shortly thereafter was tasked with reviewing and then reforming

the prison's "restrictive housing initiatives." (June 12, 2019 transcript, pg. 106). Now the Deputy

Commissioner of DOC, he recalls being directed by then Commissioner Fitzpatrick to change the

segregation practices at the Maine State Prison "which stemmed back to the Frontline

documentary that was aired worldwide showing the conditions of restrictive housing at the

Maine State Prison." Id. pg. 108. At the same time, the Department of Justice in early 2016

·Mr.Reid testified that initially he had concluded that Plaintiff had not actually been placed in EOS status based on the documents provided but two days before his testimony the EOS documents were located and, he amended his opinion accordingly.

10 established "the framework and goals" nationally for restrictive housing. Id. pg. 109. In March of

2016 he and Commissioner Fitzpatrick attended a training put on by the National Institute of

Corrections where Plaintiff's expert Larry Reid was one of the presenters. Id. pg. 110.

Mr. Thornell described the numerous changes he soon implemented. He established what

he described as a system of "accountability" that included layers of review "that take place at

different intervals and time from emergency observation statuses to administrative segregation

statuses ....And we modified the makeup of those boards. They were traditionally done by

security staff, correctional officers and sergeants, and we wanted a multidisciplinary

approach ... and we also integrated behavioral health staff into those reviews." Id. pg. 112.

Importantly, anyone who was in segregation had their status reviewed every week by a group of

up to 20 individuals from a variety of disciplines. He explained that "the philosophy I was

putting in place is every client in restrictive housing, whether those existing in there or coming

in, should have an idea - a legitimate idea of why they're there and what it's going - what's

going to be expected of them while they're there and then what it's going to take to transition out

of there, depending on how long their stay is." Id. pg. 113.

When Mr. Thornell began implementing the reforms, the ACU existed, but he stated that

"it mirrored more of the administrative segregation process" and needed reform. Id. pg. 115, 116.

He developed what he described as "a parole sort of process" where the board would meet and

review information, and "the client would come in and present his case to the board, questions

would be asked, clarifications, all of that, if it (sic) necessary. And then the client would step out

and the board would deliberate, the client would step back in and then a decision would be

communicated ... " Id. at 116, 117.

11 In addition, Commissioner Fitzpatrick ordered that "any placement of a prisoner into a

segregation unit had to be approved by myself at any time of day, any day of the week, there

were no exceptions to that." Id. at pg. 118. This meant that "restrictive housing was to be

reserved for those who were the most serious and violent threats to the safety and security of the

facility, the safety and security of staff and other prisoners, or a threat to escape from the facility.

And that was a change, because (while) those criteria were laid out in policy, there's a lot of

leeway in interpreting those criteria." Id. at 118 . He further explained that in his view "threat"

meant "not any sort of secondary or indirect incidents or violence associated with that. .. was he

or she the aggressor, were they bystanders ... those sorts of questions, to make sure we were

really reserving restrictive housing for those who were violent, you know, predators, really

within the facility, those who were completing harm against others within the facility." Id. at

119-120.

In addition, the conditions of the ACU are now completely different than they were when

Plaintiff was confined there, as it now is a "more modern, open dayroom setup" that houses

fewer inmates (16 in each instead of 50) that are more open, and prisoners have access to a

recreation yard. Id. pg. 126. He described it as a "programmatic unit" where the prisoner begins a

step-progression back towards general population. Id. pg. 126. In 2018 Mr. Thornell testified that

they hit an "all time low" population of just six prisoners in restrictive housing. He noted that it

had increased since to between 16 and 20 but that the increase corresponded to an increased

prison population overall during the same time frame. Id. at 132.

Mr. Thornell testified that while he believed Plaintiff's status in the ACU in June of 2015

"was appropriate" under the policy in place at the time, as he had been allowed by then to come

12 out of his cell and engage in programming, it would not in his view meet the criteria established

by the new regulations .

In February of 2016 Mr. Thornell sat on a review board involving the Plaintiff's

placement in ACU which found against the Plaintiff. When the Plaintiff appealed, Mr. Thornell

discussed Plaintiff' s case with Commissioner Fitzpatrick , and it was decided that it was time to

place him back in general population. Id. at 149.

Standard of Review

A prisoner subjected to prolonged solitary confinement is entitled to periodic meaningful

review to ensure that segregation is not a "pretext for indefinite confinement." Hewitt v. Helms,

459 U.S. 460, 477 (1983). The Court previously held in this case that Plaintiff had a Ii berty

interest in not being confined in segregation for over 20 months without due process. [Order on

Motion to Dismiss, 3/25/15, relying on Wilkinson v . Austin, 545 U.S. 209 (2005)1. No evidence

presented by either party at trial persuades the Court to reverse that preliminary finding.

As noted above, the parties do not really dispute the conditions under which Plaintiff was

housed during these 22 months, and it is not lost on the Court that the thrust of Defendant's

argument at this stage of the proceedings is that they came to recognize that the conditions at the

MSP endured by Plaintiff merited urgent reforms which they claim have now been

accomplished. More fundamentally, the Court has cone! uded after reviewing the evidence that

the Plaintiff's due process rights were violated in that the process for reviewing his segregation

status was not meaningful as required by law . No prisoner in Plaintiff's position could know

what it was he or she had to do to leave the highly restrictive confinement imposed on him given

13 the processes in place at the prison during the times pertinent to this case. The process, as Mr.

Reid noted, was inconsistent and incoherent, and important decision-makers could not agree on

when Plaintiff was in disciplinary segregation, when he was in administrative segregation, and

what exactly he had done to justify his separation from general population for such an extended

time. The clearest violation of his due process rights was the failure on the part of the Defendants

to provide basic, meaningful information to Plaintiff about how he could earn his way out of

segregation. The Court notes that former Commissioner Fitzpatrick, current Deputy

Commissioner Ryan Thornell, and Mr. Reid all agree that it was inappropriate to keep Plaintiff

in segregation until he admitted something he was not likely to ever admit. They agree that this

kind of coercion serves no legitimate purpose, particularly after whatever discipline process

occurred was deemed defective by the prison. Considering this evidence as a whole, the Court

concludes that the review process provided fell below the constitutional standard.

Available Remedies

The issue before the Court then becomes whether the Plaintiff is entitled to the equitable

relief he seeks. Damages are no longer a viable remedy as on January 26, 2017 Summary

Judgment was entered for Defendants on Count III on Plaintiff's claim against Corporal Mark

Engstfeld. In that Order the Court concluded that even viewing the evidence in the light most

favorable to Plaintiff, no reasonable juror could conclude that Corporal Engstfeld played a

substantial role in causing Plaintiff to be retained in segregation. As the Court noted, the

evidence in the Summary Judgment record showed "at worst, that Cpl. Engstfeld backdated the

Disciplinary Report to justify" Plantiff's initial placement on EOS. The Court concluded that

14 Corporal Engstfeld was "not responsible for or contributed to the decision" to keep Plaintiff in

segregation for such a lengthy period of time.'

Defendants argue that given the undeniably significant changes that have occurred at the

MSP regarding segregation practices, the Court's prior finding of a public interest exception to

the mootness doctrine based on the Summary Judgment record is now "inapposite." (Defendant's

Trial Brief, pg.I) Alternatively, they argue that even if the Court finds that Plaintiff's rights have

been violated that the Court should decline his request for any form of equitable "relief from a

restrictive housing program that no longer exists," and that the doctrine of separation of powers

"strictly limit the circumstances in which the judiciary may superintend the policy choices of

executive agencies." " Id. pg. 2.

Defendants also argue that in any event what happened to Plaintiff does not amount to a

violation of his constitutional rights justifying any equitable relief because "unlike disciplinary

segregation, administrative segregation is forward-looking and is utilized to protect the security

and safety of correctional staff and residents." Id. This argument is undercut in two ways, the

first being that it contradicts the original position taken by the Defendants that the Plaintiff's

prolonged stay in segregation was pursuant to their discipline policy; secondly, and more

importantly, is by the finding made above by the Court as to how urgently the Defendants made

significant changes to their segregation practices during the pendency of this litigation. In any

event, it is simply not accurate to describe the chaotic and inconsistent process that resulted in 22

months of segregation as simply "one-off infringements of policies and procedures, that, while

regrettable, do not justify the judicial intervention he seeks." Id.

' The Defendants conceded that it had not adhered to certain time frames required by the disciplinary process and the Court on January 26, 2017 also entered Judgment for the Plaintiff on Count I, the Rule SOC appeal.

15 However, the Court does have to consider whether the remedy sought by Plaintiff is

permissible under Maine law. While the Court does not agree with the Defendants that no

constitutional violation occurred, it does agree that the remedy requested presents significant

concerns regarding the Court's authority to order any relief in addition to that already provided

under the Administrative Procedures Act and Rule 80C of the Maine Rules of Civil Procedure.

Plaintiff is effectively asking the Court to order the Defendants to create and implement certain

policies which have not been duly enacted as part of any rule-making process. Those would

include, but not be limited to, requiring the Department to adopt a policy prohibiting the

Defendants from holding a person in segregation in order to extract an admission of culpability

from them, and one setting a limit on the number of days in which a person can be held in

segregation. The fundamental problem with the argument, however, is that this Court concludes

that it lacks any sort of authority to create policy, or to engage in rule-making. While the Court is

aware that under some extraordinary circumstances some courts outside of this jurisdiction have

intervened to take over in some way the day-to-day decision making of prison officials, it is clear

to the Court that it cannot do any of those things given the significant changes implemented by

Defendants to reform their segregation practices while this litigation has unfolded.

In Bates v. Department of Behavioral & Developmental Services, 2004 ME 154 the

Superior Court, after twice having found the Defendant in that case in contempt of the Augusta

Mental Health Institute (AMHI) Consent Decree, appointed a receiver to take over many of the

day-to-day operations of the AMHI. The Law Court reversed the order appointing the receiver,

and made it clear that any such intervention by the Courts in the operational decisions of another

branch of government, even under the exceptional circumstances presented in that case, runs

afoul of the separation of powers enshrined in Article III of the Maine Constitution. The Court

16 noted that the judicial power under the Maine Constitution is a "limited power" which requires

that "any exercise of judicial authority over the Executive and Legislative Branches of State

Government must be undertaken respecting these constraints." Par. 83, 84. Importantly for

purposes of this case, in vacating the Superior Court order appointing a receiver, the Law Court

noted that by the time the Superior Court considered what remedies to impose for violation of the

Consent Decree, it failed to account for "review of the adequacy of the State's current efforts and

expanded resource commitments." Id. at par. 88.

In this case, the Court finds the testimony of Deputy Commissioner Ryan Thornell to be

particularly credible and compelling regarding the current and ongoing efforts made by the

Defendants to review and reform its restrictive housing policies. While it is not possible to be

certain what motivated these changes, it seems likely to the Court that it was the Frontline

documentary which Mr. Thornell and Dr. Fitzpatrick agreed placed the Maine State Prison in a

very negative light for its conditions and rates of segregation. This, together with training that

Mr. Reid provided to Dr. Fitzpatrick and Mr. Thornell, has undeniably resulted in a more

coherent and consistent discipline process, with many fewer prisoners spending extended time in

segregation. The Plaintiff seems to concede that conditions have significantly changed, but

nevertheless asks the Court to do what it is not permitted to do, which is to write rules and make

policy even after the offending conditions have clearly been ameliorated.

Conclusion

To be clear, the Court finds that Plaintiff has a protected liberty interest in not being

confined in segregation without due process, and the United States Supreme Court has found that

to require a process of "meaningful periodic review." The Court further finds that the process of

review provided fell short of that constitutional standard for the reasons articulated best by Mr.

17 . '

Reid, and the Defendants only makes a tepid attempt to argue to the contrary. However, the only

remedy that the law permits this Court to provide, given the significant changes that have taken

place at the MSP, is the one provided previously in this litigation, namely an entry of Judgment

in Plaintiff's favor on Count I of the Complaint for relief of agency action, and final entry of the

Order on that Court that requires the return of good time, and the vacating of any fine imposed .

The entry will be: Judgment will be entered for the Plaintiff on Count I of the Complaint.

Judgment will be entered for Defendants on Counts II and III of the Complaint.

ttl J...'11c~ DATE s CE

18 STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. LOCATION: AUGUSTA I)ocketNo. AP-14-57

) I)0UGLASBURR, ) ) Petitioner, ) ) V. ) ORDER ON RESPONDENTS'MOTION ) TO DISMISS ROI)NEY BOUFF ARI), et al, ) ) Respondent. ) )

Respondents Maine I)epartment of Corrections ("I)epartment"), !)avid Allan,

Harold Abbott, Kenneth Vigue, Mark Engstfield, Troy Ross, and Rodney Bouffard move

to dismiss the Petition for Review and Complaint of Petitioner I)ouglas Burr. Count I of

the Petition is styled as a M.R. Civ. P. SOC appeal, which requests that the court find the

Respondents have continuously and systemically violated the polices and procedures of

the Maine I)epartment of Corrections ("I)epartment") and requests that: 1) Mr. Burr be

re-classified to medium custody, removed from the Special Management Unit ("SMU''),

and transferred to the Windham Correctional Center, 2) have his contact visits re-instated,

3) have his good time re-instated, 4) have the disciplinary infraction expunged from his

file, and 5) award him costs and attorney's fees. Count II of the Petition is a "42 U.S.C. §

1983" claim against the Respondents seeking injunctive relief to transfer Mr. Burr from

SMU to the Maine Correctional Center. Count II also seeks the payment of Mr. Burr's )

attorney's fees incurred in bringing the present action. Count ill is another 42 U.S.C. §

1 1983 claim asserted against respondent Mark Engstfield, a corporal at the Maine State

Prison, claiming he falsified a disciplinary report causing injury to Mr. Burr.

Respondents assert Count I of the Petition should be dismissed as moot because

the Department decided to reverse its decision, restore Mr. Burr's lost good time, refund

the fine imposed against him, and expunge his disciplinary record. In other words,

Respondents claim the matter is moot because Mr. Burr received all possible relief

requested. Respondents also assert that Count II of the Petition fails to state a claim upon

which relief can be granted because the disciplinary proceedings and sanctions imposed

on Mr. Burr do not implicate his due process rights. 1

Mr. Burr contends the appeal is not moot because the Department continues to

hold him in the SMU based upon the now expunged disciplinary complaint. Mr. Burr

further claims his 42 U.S.C. § 1983 claim survives because his confinement in the SMU

constitutes an "atypical and significant hardship" triggering the due process clause.

I. Background

Mr. Burr is an inmate at the Maine State Prison. On or about June 12, 2014,

Deputy Warden Troy Ross directed that Mr. Burr be removed from the general

population at the Maine State Prison and placed on Emergency Observation Status

("EOS") in the SMU. Mr. Burr contends that SMU is the euphemistic name for solitary

confinement at the Maine State Prison. Later that day, at 5:45 p.m. Corporal Engstfield

allegedly wrote a disciplinary report at the request of Deputy Warden Ross, which

ostensibly identified the reasons why Mr. Burr was to be placed in the SMU. Mr. Burr

alleges he was not provided a copy of the' paperwork placing him on EOS in the SMU

1 Respondents do not move to dismiss Count ID of the Petition and Complaint.

2 and did not sign any paperwork acknowledging that he was being placed on EOS in

violation of Department Policy 20.1. Respondents contend Mr. Burr was written up for

the disciplinary offense of trafficking.

Mr. Burr also alleges the Shift Supervisor, Captain Ken Vigue, did not

acknowledge Corporal Engstfield's report until June 19, 2014 at 18:30 hours. This was

more than 168 hours after the alleged behavior was observed or discovered and in

violation of Policy No. 20.1.

Corporal Engstfield' s report allegedly identified Mr. Burr's Housing Unit as

MSP/SMU/B Pod/B 122/B, but Mr. Burr was not assigned to that unit until five days after

Corporal Engstfield wrote the report. Furthermore, Corporal Engstfield allegedly based

the evidence supporting his report as stemming from a "Confidential Report." Corporal

Engstfield, however, indicated that he secured the "Confidential Report" on June 19,

2014, the same date the disciplinary report was acknowledged as received by Captain

Vigue. Mr. Burr contends that given the timing of the events, it appears that Corporal

Engstfield falsifiedJhe information on the June 12, 2104 disciplinary report, which led to

Mr. Burr's placement in the SMU.

Respondents contend that a disciplinary hearing was held on June 20, 2014, at

which Mr. Burr was found guilty of trafficking and sanctioned the loss of20 days good

time, 20 days disciplinary cell restrictions, and fined $100.00. Mr. Burr timely appealed

the decision pursuant to the Administrative Procedures Act, 5 M.R.S. § 11001 and M.R

3 Civ. P. 80C.2 Mr. Burr contends the untimely nature of this hearing required Captain

Vigue to dismiss the Disciplinary Report under Policy No. 20.1.

Following Captain Vigue's review of the Disciplinary Report, the Department

scheduled a disciplinary hearing for July 8, 2014. The hearing was subsequently

postponed until July 14, 2014, but Mr. Burr allegedly did not receive a continuance form.

The hearing officer unit manager David Allan, who allegedly had not received the

required training by the State of Maine Attorney General's Office, conducted the hearing.

Hearing Officer Allan and Captain Harold Abbot allegedly refused to provide Mr. Burr

an opportunity to review and contest the evidence used against him. Hearing Officer

Alan subsequently found Mr. Burr guilty of a disciplinary infraction.

Mr. Burr timely appealed the July 14, 2014 decision and on August 8, 2014,

Deputy Warden Troy Ross denied Mr. Burr's appeal and affirmed the recommended

decision ·of the disciplinary officer. As noted above, Mr. Burr contends Deputy Warden

Ross was the individual who had directed that a disciplinary report be brought against

him in the first place. Mr. Burr timely appealed Deputy Warden Ross's decision.

Following the appeal, the Department decided to reverse the aforementioned

decision. The Department contends that it restored Mr. Burr's lost good time, refunded

the fine imposed, and expunged the discipline from Mr. Burr's record.3 Furthermore, the

Department contends it will reimburse Mr. Burr's filing fee if the case is dismissed. The

Department has not, however, permitted Mr. Burr's wife to visit, or moved him out of

SMU. As of February 3, 2015, Mr. Burr remained in the SMU and Respondents' counsel

2 Mr. Burr does not mention the June 20, 2014 disciplinary hearing, but does not dispute it took place. , , 3 In the process of expunging Mr. Burr's disciplinary record, the Department claims it expunged the underlying administrative record.

4 indicated there were no plans to remove Mr. Burr therefrom. To the contrary, counsel for

Respondents represented that Mr. Burr could be held in the SMU indefinitely.

II. Argument

Respondents move to dismiss Mr. Burr's Petition and Complaint, "[h]owever, if a

party files a motion to dismiss and documents outside the pleadings are presented to, and

not excluded by, the trial court, [it is] treat[ed] as one for a summary judgment." Libner

v. Maine County Comm 'rs Ass 'n, 2004 ME 39, ,r 7, 845 A.2d 570. Here, while the

Respondents did not submit any documents outside the pleadings, their entire motion to

dismiss is premised on a contention that is outside the pleadings. Namely, that following

Mr. Burr's appeal, the Department decided to reverse its decision imposing disciplinary

sanctions on him. Because Mr. Burr does not dispute that the Department reversed its

decision, the court will accept this fact as true for purposes of the present motion.

Accordingly, Mr. Burr must establish a prima facie case for each element of his

claims in order to survive Respondents' motion. Bonin v. Crepeau, 2005 ME 59, ,r 8, 873

A.2d 346. In adjudicating Respondents motion, the court views the evidence in the light

most favorable to Mr. Burr and must draw all reasonable inferences in his favor. Inkel v.

Livingston, 2005 ME 42, ,r 4, 869 A.2d 745.

A. Whether Count I of the Petition is Moot

Respondents contend the Petition is moot because the Department restored the

lost good time, refunded the fine imposed, and expunged Mr. Burr's disciplinary record.

The Department also notes that it will reimburse Mr. Burr for any filing fee he has paid.

Accordingly,'the Department contends Mr. Burr's Petition is moot as he received all the

relief the court could have ordered.

5 Mr. Burr counters that the Petition is not moot because he remains in the SMU

and has not been allowed to see his wife for over 180 days. He challenges the

Department's alleged justification for continuing to impose restrictions under Department

Policy No. 20.1, which provides, in pertinent part:

Conduct constituting a disciplinary violation may result in changing a prisoner's custody level, housing status and/or programs, or the taking of any other action based on a determination that such action is in the interest of the prisoner, the interest of the prison population, or the interest of safety, security, or orderly management of the facility, regardless of whether the disciplinary process is initiated and if initiated, regardless of whether the conduct leads to an informal resolution or formal resolution of the violation. A dismissal or a finding of not guilty does not preclude taking such action. Such action is not in the nature of punishment.

03-201 C.M.R. ch. 20, §20.1, Procedure F. Mr. Burr contends that regardless of what the

Department calls the continued restrictions allegedly imposed under Policy No. 20.1, they

constitute punishment.

Mr. Burr further contends that the court need not reach the aforementioned issue

because it is sufficient that the Department "expunged" the discipline from Mr. Burr's

record, but continues to impose the aforementioned restrictions. If the event was

expunged, and thus never happened, there is no basis for the Department's continued

imposition of restrictions.

Respondents reply that the continued restrictions are permissible because 34-A

M.R.S. § 3032 only requires that documentation of a disciplinary complaint be expunged

if the prisoner is found not guilty or the complaint is otherwise withdrawn. Respondents

contend Mr. Burr's argument that when the Department expunges a disciplinary

complaint it is required to treat the incident as if it never happened represents a

"somewhat naYve view of the necessities of prison managem~nt." Accordingly, the

6 Department contends the restrictions are warranted and supported by Department Policy

No. 20.1.

The Law Court has stated that courts "should decline to decide issues which by

virtue of valid and recognizable supervening circumstances have lost their controversial

vitality." Eastern Maine Medical Center v. Maine Health Care Fin. Comm 'n., 601 A.2d

99, 101 (Me. 1992) (quotation omitted). "An issue is deemed to be 'moot' when there is

no 'real and substantial controversy, admitting of specific relief through a judgment of

conclusive character."' Anthem Health P !ans ofMaine, Inc. v. Superintendent ofIns.,

2011 l\.ffi 48, ,r 4, 18 A.3d 824 (quotation omitted). "When determining whether a case is

moot, [the court] examine[s] whether there remain sufficient potential effects flowing

from resolution of the litigation to justify application of the court's limited resources."

Id. ( quotation omitted).

The relief available to Mr. Burr in the present matter is governed by the

Administrative Procedures Act, which provides that the court may affirm an agency's

decision, remand the case for further proceedings, or reverse or modify the decision upon

certain enumerated grounds. 5 M.R.S.A. § 1107(4).

Here, the determination of whether Mr. Burr's Petition is moot turns on whether

he could be entitled to relief beyond that already granted by Respondents. In particular,

the court must assume the allegations in Mr. Burr's Petition are true, view those

allegations in the light most favorable to Mr. Burr, and determine whether the court could

order Mr. Burr be removed from SMU and have his visitations with his wife reinstated.

Stated differently, the court must decide whether tne Department can continue to impose

7 the aforementioned restrictions on Mr. Burr pursuant to Policy No. 20.1. 4 For the reasons

discussed below, the court finds that the Petition is not moot.

As Respondents point out, Policy No. 20.1 grants the authority to change a

prisoner's custody level, housing status, or take other action-regardless of the outcome

of the discipline process-if it is in the interest of the prisoner, the prison population, or

in the interest of safety, security, or orderly management of the facility. Under this broad

grant of discretion and authority, the Department can transfer Mr. Burr to SMU and cut

off his visits with his wife if it is for one of the interests listed in Policy No. 20.1. While

counsel for Respondents stated at oral argument that ending Mr. Burr's visits with his

wife and placement in the SMU were carried out in the interest of safety, Respondents

have failed to point to any conduct on the part of the Petitioner which justifies the

continuing restrictions pursuant to Policy No. 20.1. While such a justification could

emerge after factual development, the Court is not persuaded that Policy No. 20.1 on its

face authorizes the Respondents to indefinitely place Mr. Burr in the SMU. Therefore,

depending on factual development, the Court could have the authority to reverse the

Department's actions. 5

Further, the court is not convinced that even if Respondents presented evidence

demonstrating their rationale for imposing the restrictions on Mr. Burr that this, alone,

would moot Mr. Burr's Petition. This is because Policy No. 20.1 conceives of

4 At the hearing, counsel for Respondents went so far as to assert that Mr. Burr could

be held in the SMU indefinitely, for no reason. 5 Although not necessary for the disposition of this motion, the court agrees with respondents.that 34-A M.RS.A § 3032(6)(1) simply requires that "all documentation relating to the complaint must be expunged" if the prisoner is "cleared of the charges in a ·complaint, or the complaint is withdrawn.'; The statute does not speak to its impact on any restrictions imposed prior to the resolution of the complaint.

8 disciplinary sanctions, including disciplinary segregation, as having limits. See 03-201

C.M.R. ch. 20, § 20.1, Procedure D. In particular, Policy No. 20.1 explains that

The purpose of this section is to define and grade violations in order to limit official discretion and to give fair warning to the prisoner of what conduct is prohibited and what the possible consequences of disciplinary violations are. It is also the purpose of this section to prescribe punishments that are proportionate to the seriousness of the violation.

Id. at§ 20.1, Procedure D(l). Policy No. 20.1 goes on to list the four classes of

punishments that may be imposed upon a finding that a prisoner committed a disciplinary

violation. Id. at§ 20.1, Procedure D(8). The most serious of the classes carries with it a

punishment of "[d]isciplinary segregation or disciplinary restriction or both, up to a total

of thirty (30) days" and "[l]oss of privileges for no more than thirty (30) days." Id. 6 In

light of the limitations imposed on discipline when a prisoner is found to have committed

a disciplinary violation, it is debatable, certainly at this stage of the litigation and on this

record, that Procedure F in Policy No. 20.1 was intended to go beyond those limitations

when no violation is found. This interpretation is further supported by additional, detailed

Department policies governing the placement of prisoner's in administrative segregation

and/or protective custody. These policies suggest that placement in the SMU is a tightly

regulated decision that cannot continue indefinitely based on an expunged disciplinary

violation.

In particular, Policy No. 15.1 provides that a prisoner may be placed on

administrative segregation if he or she meets one of four criteria:

a. The prisoner constitutes an escape risk in a less restrictive status;

6Policy No. 20.1 does admit thEi possibility of disciplinary segregation lasting longer, than 30 days, but that is only if the prisoner is found guilty of more than one charge and the punishments are applied consecutively. Id. at§ 20.1, Procedure D(3).

9 b. The prisoner may pose a threat to the safety of others if in a less restrictive status; c. The prisoner may pose a threat to his /her own safety if in a less restrictive status; or d. There may be a threat to the safety of the prisoner if in a less restrictive status.

03-201 C.M.R. ch. 15, § 15.1. Procedure A(l), Procedure C(3). In addition to meeting

one of the aforementioned criteria, Policy No. 15.1 lays out a number of requirements

that must be met in connection with placing a prisoner on administrative segregation.

These requirements include providing the prisoner with copies of the relevant paperwork

supporting the prisoner's placement-and continued retention-in administrative

segregation. Id. at§ 15.1, Procedure C(5), (11), (12), (14).

Similarly, Policy No. 15.3 provides that an individual may be placed in protective

custody based on:

a. Reports indicating the prisoner has been assaulted or that there is a substantial risk of the prisoner being assaulted; b. Reports indicating that the prisoner has been threatened or harassed; c. Reports indicating the prisoner is perceived as an informant or trial witness; d. The circumstances of the prisoner's crime indicate that there is a substantial risk of the prisoner being threatened or harassed; e. Reports indicating the prisoner has been or that there is a substantial risk of the prisoner being the victim of sexual assault or sexual harassment; f. The prisoner's profile indicates that there is a substantial risk of the prisoner being victimized due to his/her chronological age or due to the prisoner's mental, psychological, social or physical level of functioning or characteristics.

03-201 C.M.R. ch. 15 § 15.3, Procedure A(4). The rationale for placing a prisoner in

protective custody must be documented during the shift in which the placement occurs

and, if the prisoner has not been removed from protective custody status, "the staff j

member who approved the placement shall ensure that the prisoner is served within

seventy-two (72) hours bf placement with written notification of the reasons for

10 placement and the date and time of the initial protective custody status review." Id. at§

15.3, Procedure A(5), (8). Furthermore, at a review of the prisoner's placement in

protective custody by the prisoner's Unit Management, the rationale for placing the

prisoner in protective custody must be read to him or her and the prisoner must be

provided a copy of the Protective Custody Status Review Minutes form generated at the

Unit Management team's review. Id. at§ 15.3, Procedure A(13), (14), (17). If a decision

placing the prisoner in protective custody status becomes final, the prisoner must be

advised that he or she will remain on protective custody status unless the Chief

Administrative Officer, or designee, decides to remove the prisoner from such status. Id.

at§ 15.3, Procedure A(l8).

As noted above, Respondents cannot point to anything in the pleadings or

otherwise that suggests that the above-described procedures were followed or even

attempted. The Court therefore concludes that it could, depending on factual

development, find that Petitioner is entitled to relief beyond what has already been

afforded him by the Respondents, and that his claim under Count I is therefore not moot.

Furthermore, as discussed in section B, infra, the Petition is not moot because Mr. Burr

has made allegations, which taken as true, are sufficient to state a claim for relief for

violation of his rights to due process under 42 U.S.C. §1983.

B. Whether Count II Alleges a Violation of Mr. Burr's Due Process Rights

Respondents contend that the disciplinary proceedings and sanctions imposed on

Mr. Burr in this case do not implicate the protections of the Due Process Clause under

Sandin v. Conner, 515 U.S. 472, 487 (1995) and, accordingly, fail to state a claim upon

which relief can be granted pursuant to 42 U.S.C. § 1983. In support, ;Respondents point

11 to case law holding that state statutes and correctional regulations providing for notice

and an opportunity to be heard in a disciplinary proceeding do not in themselves create a

constitutional right in a 42 U.S.C. § 1983 action and that violation of a state law, even

where arbitrary, capricious, or undertaken in bad faith does not in itself give rise to a

denial of substantive due process under the Constitution.

Mr. Burr responds that Sandin acknowledges that solitary confinement for

punitive purposes is a type of atypical, significant deprivation that triggers the Due

Process Clause. Accordingly, Mr. Burr contends his confinement in the SMU implicates

a liberty interest invoking the Due Process Clause and the Department's failure to comply

with the mandatory prescriptions of Policy No. 20.1 deprived Mr. Burr of that interest. In

addition, Mr. Burr asserts there is a significant question as to whether the extended length

of his solitary confinement violates the Eighth Amendment prohibition on cruel and

unusual punishment.

Respondents reply that Mr. Burr selectively cites to Sandin, which when read in

its entirety does not acknowledge that solitary confinement for punitive purposes is a type

of atypical, significant deprivation implicating a constitutional liberty interest. Indeed, in

Sandin itself, the Supreme Court held that the prisoner's disciplinary placement in

segregation in that case did not present the type of atypical, significant deprivation in

which a State might create a liberty interest. Sandin, 515 U.S. at 485-86. Respondents

also argue that a prison does not necessarily create a protected liberty interest when it

adopts a mandatory policy. Id. at 483-84 (citations omitted).

Respondents further claim that the Supreme Court has recognized the authority of

prisop officials to place inmates in segregated confinement for administrative rather than

12 punitive reasons citing Hewitt v. Helms, 459 U.S. 460, 468 (1983) and Kentucky Dep 't. of

Corrections v. Thompson, 490 U.S. 454,461 (1989)). Accordingly, Respondents contend

that the Department's continued placement of Mr. Burr in the SMU and prohibition of

visits from his wife do not violate his rights under the Due Process Clause and his claim

under 42 U.S.C. § 1983 should be dismissed.

42 U.S.C. § 1983 provides, in pertinent part, that every person who, under color

of statute, ordinance or regulation, causes any other person to suffer a "deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the injured party" in a lawsuit. One of the rights protected under section 1983 is the right

to Due Process. The "Due Process Clause protects persons against deprivations oflife,

liberty or property; and those who seek to invoke its procedural protection must establish

that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A

liberty interest may arise from the Constitution itself, or it may arise from an expectation

or interest created by state laws or policies. Id.

Prior to 1995, the existence and scope of an inmate's liberty interest, and

therefore whether there was a due process violation, was determined by the language of

the applicable regulations. E.g. Matthews v. Wiley, 744 F.Supp.2d 1159, 1171 (D. Colo.

2010). However, in Sandin, the United States Supreme Court held that the touchstone of

the inquiry into the existence of a protected, state-created liberty interest in avoiding

restrictive conditions of confinement is not the language ofregulations regarding those - conditions, but whether the conditions "impose[] atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life." 515 U.S. at 484. In other

words, an inmate asserting a Due Process claim bas~d on restrictive conditions of

13 confinement must show that the conditions constitute an "atypical and significant

hardship" when compared to the ordinary incidents of prison life.

In Sandin, the prisoner was refused the ability to present witnesses during a

disciplinary hearing and then sentenced to 30 days disciplinary segregation for his

misconduct despite a regulation that instructed the committee to find guilt when a

misconduct charge is supported by substantial evidence. 515 U.S. at 475-76. Applying

the above-mentioned inquiry, Sandin determined that the prisoner's "discipline in

segregated confinement did not present the type of atypical, significant deprivation in

which a State might conceivably create a liberty interest." Id. at 486. The Court

explained that this was due in part to the fact that disciplinary segregation mirrored the

conditions imposed on inmates in administrative segregation and protective custody. Id.

The Court also found it noteworthy that the State expunged the prisoner's disciplinary

record regarding the "high misconduct'' charge nine months after the prisoner served his

30 days in segregation. Id Thus, the Court found that the prisoner's confinement "did

not exceed similar, but totally discretionary, confinement in either duration or degree of

restriction." Id. "Indeed, the conditions [at the prison] involve significant amounts of

'lockdown time' even for inmates in the general population" and as a result, the state's

actions "in placing [the prisoner] there for 30 days did not work a major disruption in his

environment." Id; see also Hewitt v. Helms, 459 U.S. 460, 468 (1983) ("It is plain that

transfer of an inmate to less amenable and more restrictive quarters for non-punitive

reasons is well within the terms of confinement ordinarily contemplated by a prison

sentence"). The Court also found some comfort in the fact that the prisoner "requested

that he be placed in protective custody aft(;r he had been released from disciplinary

14 segregation" and that his "expectations have at times reflected a personal preference for

the quietude of the [solitary confinement]." Id. at 486 n. 9.

In Wilkinson, the Supreme Court noted that courts have had a difficult time

locating the appropriate baseline from which to measure what constitutes an atypical and

significant hardship in a prison system under Sandin. 545 U.S. at 223. Wilkinson did

not, however, resolve that issue because it found that assignment to the Ohio Supermax

facility, known as the Ohio State Penitentiary ("OSP"), imposed an atypical and

significant hardship under any plausible baseline. Id at 223. This was because:

For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, s reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken · together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP.

Id. at 223-24 (internal citations omitted).

Here, Mr. Burr has adequately alleged a violation of his Due Process rights

regarding his continued confinement in the SMU. First, Mr. Burr has adequately alleged

a liberty interest by asserting that he has been-and continues to be-held in solitary

confinement since June 12, 2014. 7 The Petition categorizes Mr. Burr's placement in the

SMU as equivalent to solitary confinement, but does not provide any additional details I

I I 7 As noted, Respondents acknowledged at the hearing that Mr. Burr remains in the SMU and asserted that they could retain Mr. Burr in the SMU indefinitely.

15 regarding the conditions in the SMU. Department Policy Numbers 15.1 and 15 .2,

however, help to fill in this blank by setting forth certain conditions governing prisoners

placed in administrative and disciplinary segregation. For example, similar to Wilkinson,

tlre policies provide that prisoners are permitted out-of-cell exercise for only "one (1)

hour per day, five (5) days per week, outdoor weather permitting, unless security or

safety considerations dictate otherwise." 03-201 C.M.R. ch. 15, §§ 15.1, Procedure

E(2)(i); 15.2. Procedure D(l)(i). In addition, prisoners are limited to one telephone call

per week and one non-contact visit per week. Id. at§§ 15.1, Procedure E(2)(b), (c); 15.2,

Procedure D(l )(b), ( c). Unlike Wilkinson, and similar to Sandin, however, the policies

provide that prisoners' living conditions in segregation shall "approximate those of

general population prisoners regarding cell size, lighting, heat, and ventilation." Id. at §§

15.1, Procedure E(2); 15.2, Procedure D(l). While the conditions in the SMU may not be

as harsh as those in Wilkinson, this does not mean they do not give rise to a liberty

interest because the conditions in Wilkinson imposed "an atypical and significant

hardship under any plausible baseline." 545 U.S. at 223. In other words, Wilkinson does

not represent a minimum standard that must be met or exceeded in order to establish an

atypical and significant hardship. Instead, it represented a clear-cut case of an atypical

and significant hardship. Accordingly, when the evidence is viewed in the light most

favorable to Mr. Burr and all reasonable inferences are drawn in his favor, the court is

satisfied that Mr. Burr's case has adequately alleged conditions which could, under

Wilkinson, constitute an atypical and significant hardship within the correctional context.

As the Supreme Court explained in Wilkinson, the allegedly harsh conditions of the SMU

"may well be necessary ,and appropriate in light of the danger that [Mr. Burr]

16 pose[s]. ... That necessity, however, does not diminish our conclusion that the conditions

give rise to a liberty interest in their avoidance." 545 U.S. at 224.

Second, although not explicitly challenged by Respondents, the Petition has

sufficiently alleged that the aforementioned liberty interest was deprived without

sufficient process. In particular, the Petition alleges numerous violations of Policy No.

20.1 by the Respondents. For example, Mr. Burr alleges he did not have an opportunity

to review and contest the alleged evidence against him and that information in the

disciplinary report used against him was fabricated. Petition, ,r,r 14-23, 28-33. Finally, as

noted previously, Respondents have not articulated any reason or explanation as to why

Mr. Burr continues to be held in the SMU in the wake of its decision to reverse and

expunge the disciplinary proceedings against him.

Accordingly, the allegations in Count II of Mr. Burr's Petition and Complaint,

taken in the light most favorable to Mr. Burr, adequately allege a constitutional claim

against the Respondents under 42 U.S.C. § 1983, and are sufficient to survive

Respondents' motion to dismiss.

The entry will be: Respondents' Motion to Dismiss Counts I and II is DENIED.

Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to incorporate this Order by

reference in the docket.

Dated: March 23, 2015

Maine Superior Court.

17 Date Filed 9/4/14 Kennebec Docket No. AP-14-57 County

Action: Petition for Review J. Murphy BOC

Douglas Burr vs. Rodney Bouffard, et al.

Plaintiffs Attorney Defendant's Attorney

Eric Mehnert, Esq. James Fortin, MG PO Box458 6 State House Station Orono, ME 0473 Augusta, ME 04333-0006

Date of Entry

9/9/14 Petition for Review of Final Agency Action, filed (9/4/14). s/Mehnert, Esq.

11/25/14 Motion to Dismiss, filed 11 /25/14. s/Fortin, MG

12/19/14 Motion to Extend Time to File Plaintiff's Response to Defendants' Motion to Dismiss, filed. s/Mehnert, Esq.

1/7/15 ORDER, Murphy, J. (12/31/14) (re: Motion to Extend Time filed 12/19/14) Granted. Plaintiffs response to Motion to Dismiss due 1/2/15. Copy to Atty Mehnert and MG Fortin

1/715 Petitioner's Response to Respondents' Motion to Dismiss, filed 1/5/15. s/Mehnert, Esq.

1/9/15 Hearing on Motion to Dismiss scheduled for 2/3/15 at 1:00 p.m. Notice of Hearing sent to Atty Mehnert and MG Fortin

1/14/15 Reply to Response to Motion to Dismiss filed 1/12/15. s/Fortin, MG

2/3/15 Hearing held, J. Murphy presiding. Eric Mehnert, Esq. and James Fortin, MG Tape 2000, Index 4711-6490 Under advisement.

3/24/15 ORDER, Murphy, J. (3/23/15) Respondent's Motion to Dismiss counts I and II is DENIED. Copy to Atty Mehnert and MG Fortin

3/31/15 Copy to repositories.

Page 1 AP-14-57