Stein v. Maine Criminal Justice Academy Bd. of Trustees

• Court: Superior Court of Maine
• Decided: September 17, 2013
• Docket: CUMap-12-53
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-12~5i~. L TJ)vJ -Cu/Vi- 1f/~/;JOIJ, NICHOLAS STEIN,

Plaintiff V. ORDER

CRIMINAL JUSTICE ACADEMY BOARD } ~ ' .

OF TRUSTEES,

Defendant

Before the court is plaintiff Nicholas Stein's motion for the taking of additional

evidence pursuant to M.R.Civ.P. 80C(e).

Specifically, the additional evidence that Stein seeks to have the court consider in

connection with his appeal involves evidence as to the actions of the Criminal Justice

Academy Board of Trustees with respect to suspension or revocation of certificates of

eligibility of other corrections officers. 1

Stein's initial motion outlined the general subject matter of the additional

evidence he sought but did not contain an offer of proof that set forth what he expected

to prove. In his reply memorandum, however, Stein asserted that there were four

similarly situated corrections officers who had also been alleged to have assaulted

inmates and that those individuals had received "much shorter, if any, suspensions of

their certificates of eligibility." Reply Memorandum dated December 24, 2012 at 2-3. In

1 In his original motion Stein stated that he was seeking additional evidence relating to the entire decision-making process of the Board in the other cases. Motion to Take Additional Evidence filed December 3, 2012 1 9. However, he thereafter clarified that he is not seeking evidence as to the mental processes of the Board members but only the record of Board actions in those other cases. Id.

longer suspension than similarly situated individuals.

This is a very general offer of proof, especially since Stein admits that he does not

have more detailed information with respect the four officers who he alleges are

similarly situated. Reply Memorandum dated December 24, 2012 at 3. Whether the

circumstances of the alleged assaults in the other cases bear any resemblance to the

circumstances involving Stein, therefore, is not known and in that respect Stein appears

to be engaged in a fishing expedition.

Even assuming that Stein's offer of proof is sufficient and that his request does

not constitute a fishing expedition, Stein's motion to take additional evidence is denied

for three reasons:

1. Plaintiff did not seek to offer the additional evidence he now seeks- records

relating to suspensions or revocations of certificates of eligibility of other corrections

officers- at the administrative level. Issues not raised at the administrative level are not

preserved for appellate review. New England Whitewater Center v. Department of

Inland Fisheries and Wildlife, 550 A.2d 56, 58 (Me. 1998). 2

2. Under 5 M.R.S. § 11006(1)(B) a court may order the taking of additional

evidence before the agency if the evidence "could not have been presented or was

erroneously disallowed in the proceedings before the agency." Assuming that evidence

relating to proceedings involving other corrections officers would have been available

and would have been material to the proceedings involving Stein, Stein has not

demonstrated that he could not have presented such evidence before the agency.

2 Although this issue is only mentioned obliquely by the Board, evidence relating to other correction officers- except for written decisions at the conclusion of adjudicatory proceedings- appears to be subject to statutory confidentiality pursuant to 25 M.R.S. § 2806(8) and it is not necessarily clear that Stein would have the right to access such evidence.

2 3. To allow Stein to convert this administrative appeal into an exercise comparing

and contrasting his case to the cases of other corrections officers would go far beyond

the role of the court in judicially reviewing administrative actions under Rule SOC. See

Hall v. Board of Environmental Protection, 498 A.2d 260, 266 (Me. 1985). 3 Moreover,

even assuming that the Board imposed a more severe sanction on Stein in this case than

it imposed on other corrections officers in past cases, that would not be a basis to

reverse the decision here. The Board is entitled to conclude either than Stein's behavior

was more egregious than that of other corrections officers or that its prior sanctions had

been too lenient. If the Board were required to be lenient in this case because it had

previously been lenient, it would never be able to conclude that it had been too lenient

in the past and that repeated instances of assaults on inmates required a change in

policy to more severe discipline.

The entry shall be:

Plaintiff's motion to take additional evidence is denied.

Plaintiff's brief is due within 40 days from the date of this order. The Board's brief is due 30 days after service of plaintiff's brief. Plaintiff shall have 14 days after service of the Board's brief in which to file a reply brief.

The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: March I~ 2013

Thomas D. Warren Justice, Superior Court

3 To the extent that Stein were to argue that the Board's actions in this case constituted selective prosecution in violation of equal protection, he would have to show at a minimum that the Board was motivated by a discriminatory purpose, Polk v. Town of Lubec, 2000 ME 152 <[ 14, 756 A.2d 510, and he has made no offer of proof to that effect.

3 D&te Filed 10-25-12 CUMBERLAND Docket No. AP-12-53 County

Action 80C APPEAL

NICHOLAS STEIN BOARD OF TRUSTEES, MAINE CRIMINAL JUSTICE ACADEMY

vs. Plaintiff's Attorney Defendant's Attorney

KRISTINE HANLY ESQ DENNIS SMITH, ESQ. VINCENT KANTZ PITTMAN & THOMPSON ASSISTANT ATTORNEY GENERAL 44 EXCHANGE ST 6 STATE HOUSE STATION SUITE 301 AUGUSTA, ME 04333-0006 PORTLAND ME 04101

Date of Entry STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-12-53

NICHOLAS STEIN, ID 1 ,v ·-· v/ct / 1 ) /2 a 13 c{ fv\- I .

Plaintiff

v. ORDER

MAINE CRIMINAL JUSTICE ACADEMY BOARD OF TRUSTEES, STATE OF MAINE Cumberland. s~. Clerk's Office SEP 17 2013 Defendant RECEIVED Before the court is an appeal by Nicholas Stein from a September 21, 2012

decision of the Maine Criminal Justice Academy Board of Trustees adopting the

recommended decision of Hearing Examiner James E. Smith and suspending Stein's

certificate of eligibility to act as a correctional officer for one year. The recommended

decision found that Stein had engaged in conduct in violation of state law by assaulting

an inmate at the Cumberland County Jail on June 17,2011. 1

The recommended decision of the hearing officer followed two days of hearings

at which the hearing officer heard testimony from Stein, from two supervisors at the

Cumberland County Jail, and from another corrections officer. A number of exhibits,

including photographic and video evidence, were also admitted at the hearing.

The Criminal Justice Academy Board of Trustees had originally proposed to

revoke Stein's certificate in its entirety, State's Ex. Tab 3, but the hearing officer

1 The recommended decision is found at Tab 1 in the volume of the administrative record containing decisions and pleadings. The administrative record consists of four volumes: the one containing decisions and pleadings, one containing the transcripts of hearings held on May 7, 2012 and June 11, 2012, one containing exhibits offered by the State at the hearings, and one containing exhibits offered by Stein at the hearings. recommended that a one year suspension be imposed instead. Recommended Decision

at 10.

Standard of Review

Under Rule SOC and 5 M.R.S. § 11007(4)(C), an agency's decision will be

reviewed for abuse of discretion, error of law, or findings not supported by substantial

evidence in the record. ~ Rangeley Crossroads Coalition v. Land Use Regulation

Commission, 2008 ME 115 <[ 10, 955 A.2d 223, 227. 2 The court may not substitute is own

judgment for that of the agency and must affirm findings of fact if they are supported

by substantial evidence in the record. Id.; 5 M.R.S. § 11007(3). As the party challenging

the agency's decision, Stein bears the burden of proof on this appeal. Friends of Lincoln

Lakes v. Board of Environmental Protection, 2010 ME 18 <[ 15, 989 A.2d 1128.

The court has reviewed the record and concludes that there is substantial

evidence to support the hearing officer's findings that Stein's certificate should be

suspended because on June 17, 2011 Stein engaged in conduct constituting an assault

within the meaning of 17-A M.R.S. § 207 by recklessly causing bodily injury and

offensive physical contact to inmate Brian Cote.

Recklessness

There is no dispute that Stein was working as a correctional officer in the 72 hour

pod when Cote jumped feet first from the top rail of the second deck and landed on the

floor near Stein. There was evidence that before he jumped Cote had made a statement

2 Agency decisions may also be reversed for constitutional or statutory violations, if they are in excess of statutory authority, or are made upon unlawful procedure. 5 M.R.S.§ 11007(C)(l)-(3). Stein does not raise any issues of this nature on this appeal.

2 to the effect that he was going to jump in an attempt to kill himself. June 11, 2012 Tr.

150. In response Stein said, "Well, all you're g?ing to do is break your ankles." Id.

Stein heard Cote's ankle bones break when Cote landed on the concrete floor;

he saw Cote lying on the floor screaming in pain and knew Cote was injured.

State's Ex. 6 at p. 46; June 11, 2012 Tr. 41, 155. There is also no dispute that Stein then

handcuffed Cote and dragged Cote by the shirt collar, with Cote's injured feet dragging

along behind, for a distance of 127 feet to the medical unit. State's Ex. 6 at p. 46; State's

Ex. 10; State's Ex. 22; June 11, 2012 Tr. 151-52; May 7, 2012 Tr. 64-65. While dragging

Cote, Stein repeatedly asked Cote, "Was it worth it?" May 7, 2012 Tr. 72; June 11, 2012

Tr. 54.

While Stein challenges the determination that he acted recklessly, Stein knew

from his corrections and EMT training that, in addition to injuries to his ankles, Cote

could have sustained injuries to his back that would have called for the use of a back

board and that dragging Cote could have caused him additional injury and pain. June

11, 2012 Tr. 42-44. Moreover, there was evidence that as he was being dragged, Cote

was screaming, crying, and attempting to protect his feet. May 7, 2012 Tr. 73; June 11,

2012 Tr. 57; State's Ex. 7 at p. 62. This is consistent with video and still photographic

evidence reflecting that Cote's face was contorted in pain, State's Ex. 10 (med unit

video); State's Ex. 30, and that as he was dragged, Cote's pants pulled down and his

bare buttocks were in contact with the floor. State's Ex. 10; State's Ex. 27-29.

From this evidence the hearing officer was entitled to find by a preponderance of

the evidence that as Stein was dragging Cote across the floor, Stein was consciously

disregarding a risk that his actions were causing bodily injury and offensive physical

contact to Cote. From the same evidence the hearing officer was entitled to find by a

preponderance that Stein's disregard of the risk represented a gross deviation from the

3 standard of conduct that a reasonable and prudent person would have observed in the

same situation. See May 7, 2012 Tr. 131 and Stein's own admission that his conduct

constituted a "big deviation" from his training. June 11, 2012 Tr. 50.

Conscious disregard of risk and gross deviation from any reasonable and

prudent standard of conduct are sufficient to establish recklessness within the meaning

of 17-A M.R.S. §§ 35(3)(A) and (C), which is the required culpable mental state for

assault under 17-A M.R.S. § 207.

Stein argues that the hearing officer incorrectly applied an objective standard in

determining that Stein had consciously disregarded a risk of bodily injury or offensive

physical contact. The hearing officer was not required to find Stein had not consciously

disregarded the risk simply because Stein testified that he had been so shocked by

Cote's jump that his training went out the window and he had simply attempted to

bring Cote straight to the medical unit to receive medical attention. As the finder of fact,

the hearing officer was entitled to infer from the evidence that Stein had consciously

disregarded a risk of bodily injury or offensive physical contact even if Stein did not

admit to having consciously disregarded that risk. See, ~ Alexander, Maine Jury

Instruction Manual § 6-39 (2013 ed.) (mental state often cannot be proven directly but

fact-finder can infer state of mind from surrounding circumstances).

Thus, there is substantial evidence to support the hearing officer's express

finding that Stein "consciously disregarded the risk by dragging the unsupported

inmate 127 feet across the concrete floor." Recommended Decision at 7. The hearing

officer correctly set forth the statutory definition of recklessness as "conscious disregard

of risk", id. at 2-3, and must be presumed to have followed that definition. His reference

in the next sentence to whether a reasonable person would have recognized the risk

does not demonstrate that he was applying an incorrect standard. That reference is

4 directed to the second aspect of recklessness. - the existence of a gross deviation from

the standard of conduct that a "reasonable and prudent person" would have observed.

170-A M.R.S. § 35(3)(C). Before it can be determined whether there has been a gross

deviation, it is first necessary to determine the standard of conduct that a reasonable

person would have observed.

Bodily Injury and/ or Offensive Physical Contact

The evidence previously discussed also constitutes substantial evidence to

support the hearing officer's finding that Stein's actions - in dragging Cote 127 feet

along a concrete floor by his shirt collar at a time when Cote was crying out in pain

from two broken ankles - more likely than not caused additional pain to Cote.

Recommended Decision at 9. Bodily injury is defined to include physical pain, 17-A

M.R.S. § 2(5), and conduct that causes physical pain therefore meets the bodily injury

element of assault.

Indeed, on this record the court cannot discern any reasonable basis for Stein's

argument that there is insufficient evidence to support a finding of bodily injury. There

is also more than sufficient evidence in the record to support the hearing officer's

alternative finding of offensive physical contact. See Recommended Decision at 9

(finding that a reasonable person would have been offended and felt their dignity

violated by being dragged along the floor like a sack of potatoes with their buttocks at

least partially exposed).

Arbitrary and Capricious

Stein's final argument is that it was arbitrary and capricious for the Board to

suspend Stein's certificate of eligibility without taking similar action against Corrections

5 Officer Avila, who was present when Cote jumped and who the hearing officer found

"froze" and did not attempt to stop Stein from dragging Cote to the medical unit.

Recommended Decision at 4-5, 10.

The distinction between Stein and Avila is not arbitrary or capricious. Stein

committed an assault by dragging an injured inmate 127 feet along the floor, causing

bodily injury and offensive physical contact- conduct that met the elements of assault.

Avila, who "froze," did not engage in any conduct that resulted in bodily injury or

offensive contact.

The decision of the Maine Criminal Justice Academy Board of Trustees is

affirmed. The Clerk is directed to incorporate this order in the docket by reference

pursuant to Rule 79(a).

Dated: September 1'1 2013 ~ Thomas D. Warren Justice, Superior Court

6 Date Filed 10-25-12 CUMBERLAND Docket No. AP-12-53 County

Action SOC APPEAL

NICHOLAS STEIN BOARD OF TRUSTEES, MAINE CRIMINAL JUSTICE ACADEMY

KRISTINE HANLY ESQ DENNIS SMITH, ESQ. VINCENT KANTZ PITTMAN & THOMPSON ASSISTANT ATTORNEY GENERAL 44 EXCHANGE ST 6 STATE HOUSE STATION SUITE 301 AUGUSTA, ME 04333-0006 PORTLAND ME 04101

Date of Entry