STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CIVIL ACTION DOCKET NO. AP-2018-22
MICHAEL PARKER, Petitioner
V. DECISION AND ORDER MAINE DEPARTMENT OF CORRECTIONS, Respondent.
INTRODUCTION
The matter before the court is an appeal by Michael Parker, an inmate at the Maine
State Prison ("MSP"), from a disciplinary proceeding that resulted in the imposition of
sanctions against him for the offense of "trafficking," a Class A violation under the
Prisoner Discipline Policy. This appeal has been brought in accordance with 5 M.R.S. §§
11001-11008 (Administrative Procedure Act) and Maine Rule of Civil Procedure BOC.
FACTUAL BACKGROUND
On February 2, 2018, Michael Parker ("Parker" or "Petitioner"), an inmate at MSP,
was notified of a disciplinary hearing scheduled to occur February 8, 2018, for a
trafficking violation. 1 (Certified Record ("C.R.") 1.) The alleged incident occurred on
January 20, 2018. (C.R. 2.)
1 MDOC policy states that a "Trafficking violation" is as follows: Trafficking of a drug, rega1·dless 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.
Policy 20.1, Proc. E. Suboxone (buprenorphine) is a Schedule W drug. 17-A M.R.S. § 1102(1)(!). Trafficking is a Class A violation. Policy 20.1, Proc. E. Note also that planning, attempt, participation as an accessory, or solicitation of another prisoner are all included in the violation. MDOC Policy 20.1, Proc. E.
1 According to the Maine Department of Corrections' ("MDOC") Disciplinary
Report, on January 20, 2018, Julie McAssey ("McAssey"), a visitor to MSP, was stopped
by the Special Investigations and Intelligence office ("SII") and questioned about
trafficking Suboxone. (C.R. 2.) McAssey admitted to swallowing five strips of Suboxone
in the lobby when confronted by officers. (C.R. 2.) The Disciplinary Report references an
attached report "for full details." (C.R. 2.) That attached report was filed under seal in
this court for in camera review. The following details come from the confidential report.
On December 1, 2017, SII was informed by a confidential informant that trafficking
was occurring at MSP. Based on this information SII surveilled visits and telephone
conversations between McAssey and prisoner J.S.. They discussed plans to traffic
Suboxone into MSP. They additionally discussed how to have Tammy Shaw ("Shaw"),
who sometimes rode with McAssey to MSP, bring in Suboxone to Parker, whom Shaw
visited. At least once, J.S. and McAssey discussed whether it was "confirmed" that Shaw
would bring Suboxone to Parker. On December 14, 2017, Parker asked Shaw whether she
would traffic contraband into MSP for him and attempted to convince her to do so by
using money as a lure and telling her that there was nothing to think about. McAssey and
J.S. had conversations later in the month about whether Shaw was "going to do it."
Ultimately, Shaw never brought drugs into MSP.
On February 22, 2018, the disciplinary hearing occurred. (C.R. 6-8.) According to
the hearing summary, Parker pled not guilty, declined to make a statement "because
there maybe [sic] outside charges," and indicated that the witnesses he had listed were
not needed. (C.R. 6.) Based on the "staff[']s detailed report," 2 the Hearing Officer ("HO")
2 The court presumes this is the confidential SII report.
2 found Parker guilty of trafficking. (C.R. 6.) On the same date, Parker signed the summary
on the third page, and did not waive his right to appeal. (C.R. 8.)
After receiving the hearing summary, a prisoner has fifteen days to appeal the
decision to the Chief Administrative Officer. 3 MDOC Policy 20.1, Proc. C(17). Upon
timely appeal, the Chief Administrative Officer will review the appeal, and may affirm,
modify, or reverse the decision. MDOC Policy 20.1, Proc. C(19), (21). The prisoner must
be notified of the Warden's decision on appeal in writing. MDOC Policy 20.1, Proc. C(22).
Nothing in the Certified Record, nor anything provided by Parker other than his own
unsworn statements, indicates that he pursued a timely appeal in accordance with the
Prisoner Discipline Policy. If the prisoner fails to submit a timely appeal, no appeal will
be considered. MDOC Policy 20.1, Proc. C(18). Staff are required to maintain appropriate
records for all cases in which a prisoner is found guilty. MDOC Policy 20.1, Proc. C(24).
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,
Lakes v. Bd. of Envtl. Prat., 2010 ME 18,
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. Dept. of Envtl. Prat., 2005 ME 50,
seeking to vacate a state agency decision has the burden of persuasion on appeal.
3 The Chief Administrative Officer is the Warden or the Warden's designee. The terms are used interchangeably in this Decision.
3 Anderson v. Maine Public Employees Retirement System, 2009 ME 134,
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,
In his Rule BOC appeal, Parker maintains that he appealed the HO's decision on
March 9, 2018, but his appeal was never processed. MDOC contends that Parker should
be denied judicial review for two reasons. First, he did not exhaust the administrative
remedies available to him under the Prisoner Discipline Policy because he failed to appeal
the HO's decision. Second, MDOC argues that the court should affirm the HO's finding
that Parker committed the trafficking offense because there is substantial evidence in the
record to support the HO's decision finding Parker guilty.
I. Failure to Exhaust Administrative Remedies
MDOC asserts that because Parker did not appeal the HO's decision to the Chief
Administrative Officer for review, he did not exhaust the internal appeal process
available to him, and therefore his petition should be dismissed. To support its
contention, MDOC refers to the HO's attestation of its event log records 4 that show no
appeal of the HO's decision, and that the decision was affirmed on March 2t when
Parker did not file a timely appeal. MDOC additionally points to Parker's lack of evidence
to support a timely appeal because he has not produced a copy of the Warden's written
notice affirming the HO's decision, despite MDOC's Policy that such decisions must be
in writing and provided to the prisoner.
4 The event log tracks the history of a disciplinary case. See MDOC's July 26, 2018, Motion to Dismiss.
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STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CIVIL ACTION DOCKET NO. AP-2018-22
MICHAEL PARKER, Petitioner
V. DECISION AND ORDER MAINE DEPARTMENT OF CORRECTIONS, Respondent.
INTRODUCTION
The matter before the court is an appeal by Michael Parker, an inmate at the Maine
State Prison ("MSP"), from a disciplinary proceeding that resulted in the imposition of
sanctions against him for the offense of "trafficking," a Class A violation under the
Prisoner Discipline Policy. This appeal has been brought in accordance with 5 M.R.S. §§
11001-11008 (Administrative Procedure Act) and Maine Rule of Civil Procedure BOC.
FACTUAL BACKGROUND
On February 2, 2018, Michael Parker ("Parker" or "Petitioner"), an inmate at MSP,
was notified of a disciplinary hearing scheduled to occur February 8, 2018, for a
trafficking violation. 1 (Certified Record ("C.R.") 1.) The alleged incident occurred on
January 20, 2018. (C.R. 2.)
1 MDOC policy states that a "Trafficking violation" is as follows: Trafficking of a drug, rega1·dless 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.
Policy 20.1, Proc. E. Suboxone (buprenorphine) is a Schedule W drug. 17-A M.R.S. § 1102(1)(!). Trafficking is a Class A violation. Policy 20.1, Proc. E. Note also that planning, attempt, participation as an accessory, or solicitation of another prisoner are all included in the violation. MDOC Policy 20.1, Proc. E.
1 According to the Maine Department of Corrections' ("MDOC") Disciplinary
Report, on January 20, 2018, Julie McAssey ("McAssey"), a visitor to MSP, was stopped
by the Special Investigations and Intelligence office ("SII") and questioned about
trafficking Suboxone. (C.R. 2.) McAssey admitted to swallowing five strips of Suboxone
in the lobby when confronted by officers. (C.R. 2.) The Disciplinary Report references an
attached report "for full details." (C.R. 2.) That attached report was filed under seal in
this court for in camera review. The following details come from the confidential report.
On December 1, 2017, SII was informed by a confidential informant that trafficking
was occurring at MSP. Based on this information SII surveilled visits and telephone
conversations between McAssey and prisoner J.S.. They discussed plans to traffic
Suboxone into MSP. They additionally discussed how to have Tammy Shaw ("Shaw"),
who sometimes rode with McAssey to MSP, bring in Suboxone to Parker, whom Shaw
visited. At least once, J.S. and McAssey discussed whether it was "confirmed" that Shaw
would bring Suboxone to Parker. On December 14, 2017, Parker asked Shaw whether she
would traffic contraband into MSP for him and attempted to convince her to do so by
using money as a lure and telling her that there was nothing to think about. McAssey and
J.S. had conversations later in the month about whether Shaw was "going to do it."
Ultimately, Shaw never brought drugs into MSP.
On February 22, 2018, the disciplinary hearing occurred. (C.R. 6-8.) According to
the hearing summary, Parker pled not guilty, declined to make a statement "because
there maybe [sic] outside charges," and indicated that the witnesses he had listed were
not needed. (C.R. 6.) Based on the "staff[']s detailed report," 2 the Hearing Officer ("HO")
2 The court presumes this is the confidential SII report.
2 found Parker guilty of trafficking. (C.R. 6.) On the same date, Parker signed the summary
on the third page, and did not waive his right to appeal. (C.R. 8.)
After receiving the hearing summary, a prisoner has fifteen days to appeal the
decision to the Chief Administrative Officer. 3 MDOC Policy 20.1, Proc. C(17). Upon
timely appeal, the Chief Administrative Officer will review the appeal, and may affirm,
modify, or reverse the decision. MDOC Policy 20.1, Proc. C(19), (21). The prisoner must
be notified of the Warden's decision on appeal in writing. MDOC Policy 20.1, Proc. C(22).
Nothing in the Certified Record, nor anything provided by Parker other than his own
unsworn statements, indicates that he pursued a timely appeal in accordance with the
Prisoner Discipline Policy. If the prisoner fails to submit a timely appeal, no appeal will
be considered. MDOC Policy 20.1, Proc. C(18). Staff are required to maintain appropriate
records for all cases in which a prisoner is found guilty. MDOC Policy 20.1, Proc. C(24).
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,
Lakes v. Bd. of Envtl. Prat., 2010 ME 18,
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. Dept. of Envtl. Prat., 2005 ME 50,
seeking to vacate a state agency decision has the burden of persuasion on appeal.
3 The Chief Administrative Officer is the Warden or the Warden's designee. The terms are used interchangeably in this Decision.
3 Anderson v. Maine Public Employees Retirement System, 2009 ME 134,
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,
In his Rule BOC appeal, Parker maintains that he appealed the HO's decision on
March 9, 2018, but his appeal was never processed. MDOC contends that Parker should
be denied judicial review for two reasons. First, he did not exhaust the administrative
remedies available to him under the Prisoner Discipline Policy because he failed to appeal
the HO's decision. Second, MDOC argues that the court should affirm the HO's finding
that Parker committed the trafficking offense because there is substantial evidence in the
record to support the HO's decision finding Parker guilty.
I. Failure to Exhaust Administrative Remedies
MDOC asserts that because Parker did not appeal the HO's decision to the Chief
Administrative Officer for review, he did not exhaust the internal appeal process
available to him, and therefore his petition should be dismissed. To support its
contention, MDOC refers to the HO's attestation of its event log records 4 that show no
appeal of the HO's decision, and that the decision was affirmed on March 2t when
Parker did not file a timely appeal. MDOC additionally points to Parker's lack of evidence
to support a timely appeal because he has not produced a copy of the Warden's written
notice affirming the HO's decision, despite MDOC's Policy that such decisions must be
in writing and provided to the prisoner.
4 The event log tracks the history of a disciplinary case. See MDOC's July 26, 2018, Motion to Dismiss.
4 In response, Parker maintains that he submitted his appeal via "in-house mail" on
March 9, 2018, and also hand delivered a copy to the Warden on the same date. Parker
claims that MDOC deleted the line in the event log containing his appeal. He submits a
copy of a grievance report against the HO to support his argument. 5
"The doctrine of exhaustion of administrative remedies requires a party to proceed
in the administrative/ municipal arena until all possible administrative remedies are
exhausted before initiating action in the courts." Levesque v. Eliot, 448 A.2d 876, 878 (Me.
1982). The Law Court has recently stated that
[t]he doctrine of exhaustion of administrative remedies requires a party who seeks an administrative remedy or who challenges an admb.ustrative action to pursue that remedy or challenge to a conclusion ... The rule is primarily designed to allow administrative agencies to correct their own errors, clarify their policies, and reconcile conflicts before resorting to judicial relief.
Marshall v. Town of Dexter, 2015 ME 135,
Seymour, 2004 ME 115,
that an agency has not yet had a chance to consider. See Levesque, 448 A.2d at 878.
Similarly, "when a court is asked to intervene in the actions of an administrative body,
the court [should] decline to do so unless the action has achieved, through the
administrative tribunal, the stage at which it is ripe for judicial consideration." Id.
This court declines to accept the suggestion that MDOC has destroyed a record of
a prisoner's appeal in contravention of its own policy to maintain appropriate records in
disciplinary matters. 6 The fact that Parker never appealed is supported by the event log
5 This grievance shows it was dismissed on March 27, 2018.
6 See MDOC Policy 20.1 Proc. C(24).
5 that lacks a line for an appeal of the HO's decision. Additionally, a disciplinary HO at
MSP swore under oath that "[t]here is no record of Michael Parker having appealed the
hearing officer's decision to the prison's Chief Administrative Officer." Certificate of
Harold Abbott, 'II 5.
Because the party seeking to vacate a state agency decision has the burden of
persuasion on appeal, this court denies Parker judicial review. He has not met his burden
of persuasion as he has failed to come forward with evidence that he timely appealed the
HO's decision. Parker could have met his burden by providing a copy of the Chief
Administrative Officer's affirmation of the HO's decision. Parker did not appeal the HO's
decision, nor does he provide any evidence to suggest that he did appeal it. He has
therefore failed to exhaust the administrative remedies available to him. This court
declines to intervene and decide an issue that is not ripe for judicial review.
II. Substantial Evidence in the Record to Support a Finding that Parker Committed the Trafficking Violation
Even assuming that Parker filed a timely appeal to the Chief Administrative
Officer, MDOC argues that the HO's decision was supported by substantial evidence in
the record and therefore should be affirmed. Parker claims a lack of evidence to support
the HO's decision as no contraband was found and no charges were pursued against him
by outside authorities. It is significant that for a prisoner to be found guilty of a trafficking
charge, no drugs actually have to enter MSP. Instead, a trafficking violation includes
planning, attempt, or participation as an accessory. MDOC Policy 20.1, Proc. E.
Judicial review of an administrative agency's interpretation of its own rules is
given "considerable deference" and should only be set aside when the regulation compels
a contrary result, or its interpretation is contrary to the governing statute. Friends of the
Boundary Mts. v. Land Use Regulation Comm'n, 2012 ME 53, 'II 6, 40 A.3d 947.
6 Here, the record reflects substantial evidence contained within the SII report that
Parker attempted to convince Shaw to bring drugs into MSP for him.7 Despite Parker's
argument that no contraband was found, a prisoner may be found guilty of trafficking
for merely planning to traffic. MDOC Policy 20.1, Proc. E. No physical contraband needs
to be seized. Parker's conversations with Shaw provide substantial evidence of his
planning to traffic Suboxone, which supports the HO's decision. MDOC's interpretation
of its rules does not compel a contrary result, nor is its interpretation contrary to the
statute governing disciplinary action, 34-A M.R.S. § 3032(1). 8
CONCLUSION
The entry is:
The Petition for Judicial Review is DENIED.
The clerk is directed to incorporate this Order by reference in .
accordance with M.R. Civ. P. 79(a).
DATED: February 25, 2019 ' 1llia . Stokes Justice, Maine Superior Court
7 Despite the confidential nature of this report, Parker has indicated to the court that he has a copy of it. See Petitioners Motion to Deny Respondent's Motion to File a Portion of the Certified Record Under Seal for In Camera Review. Nonetheless, the court granted MDOC's Motion to Seal the confidential report so that it is not publicly available.
8 Parker's remaining arguments are without merit and are not discussed