MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:    2019 ME 114
Docket:      Ken-18-487
Submitted
  On Briefs: June 26, 2019
Decided:     July 18, 2019

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.



                                FITZGERALD CARRYL

                                            v.

                          DEPARTMENT OF CORRECTIONS


MEAD, J.

         [¶1] Fitzgerald Carryl, an inmate at the Maine State Prison, appeals from

a judgment of the Superior Court (Kennebec County, Stokes, J.) denying his

petition for review of a final agency action and affirming a disciplinary action

that resulted in the imposition of sanctions against him for the offense of

assault. Because the record before us contains no competent evidence to

support the hearing officer’s determination that Carryl committed an assault,

we vacate the judgment.

                                   I. BACKGROUND

         [¶2] The following facts are drawn from the procedural record. See

Dubois v. Dep't of Envtl. Prot., 2017 ME 224, ¶ 3, 174 A.3d 314. In a disciplinary

incident report dated April 15, 2018, a corrections officer stated that
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      On the above date and time after finding out about the assault on
      Prisoner [Y] I reviewed the camera system to try to determine who
      assaulted him. On the date and time around the assault [Carryl] is
      seen on the A-pod Camera 1 at 10:41 leaving cell 108 in A-pod and
      goes upstairs to cell 204, at 10:43 he is seen exiting the cell which
      meets the time frame of the assault. Due to this new information
      Carryl . . . will be receiving a write up for assault.

      [¶3] Carryl was then scheduled for a formal disciplinary hearing on the

assault violation, and he requested to call the victim, Prisoner Y, as a witness.

A disciplinary hearing was held on May 1, 2018. The disciplinary hearing

officer denied Carryl’s request to call Prisoner Y as a witness, stating that

Prisoner Y “is the victim and won’t be called because if he was to say that

[Carryl] did do anything that would put him in danger.”

      [¶4] The hearing officer determined that Carryl “is guilty based on the

officer[’]s report. I do believe that base[d] on the report from the officer it is

more probable th[a]n not that [the] prisoner did do what’s in the report.” The

recommended disposition was a thirty-day disciplinary restriction. Carryl

appealed the finding of guilt and the recommended disposition to the

Chief Administrative Officer who affirmed the hearing officer’s decision.

      [¶5] Carryl appealed to the Superior Court in accordance with 5 M.R.S.

§ 11001-11008 (2018) and M.R. Civ. P. 80C. The court denied Carryl’s petition

for review of the agency action and affirmed the disciplinary action. Carryl now
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appeals to us, see 5 M.R.S. § 11008; M.R. Civ. P. 80C(m), challenging the legality

of the denial of his request to call a witness at the disciplinary hearing and the

sufficiency of the evidence. “When the Superior Court acts in an intermediate

appellate capacity pursuant to M.R. Civ. P. 80C, we review the administrative

agency’s decision directly for errors of law, abuse of discretion, or findings not

supported by substantial evidence in the record.” Richard v. Sec’y of State,

2018 ME 122, ¶ 21, 192 A.3d 611 (quotation marks omitted).

                                 II. DISCUSSION

A.    Right to Call Witnesses

      [¶6] Carryl first argues that the hearing officer impermissibly denied his

request to call Prisoner Y as a witness at his disciplinary hearing. Although an

“inmate facing disciplinary proceedings should be allowed to call witnesses,”

Wolff v. McDonnell, 418 U.S. 539, 566 (1974); see also 34-A M.R.S. § 3032(6)(D)

(2018), “the inmate’s right to present witnesses is necessarily circumscribed by

the penological need to provide swift discipline in individual cases . . . [and] by

the very real dangers in prison life which may result from violence or

intimidation directed at either other inmates or staff,” Ponte v. Real,

471 U.S. 491, 495 (1985). The inmate’s request may be denied so long as the
4

prison official’s “reasons are logically related to preventing undue hazards to

institutional safety or correctional goals.” Id. at 497 (quotation marks omitted).

        [¶7] Here, the hearing officer’s stated reason for withholding Prisoner Y

as a witness was that Prisoner Y “is the victim and won’t be called because if he

was to say that [Carryl] did do anything that would put him in danger.” The

hearing officer’s explanation—the risk of danger to Prisoner Y—is logically

related to the need for institutional safety.1 See id.; see also Wolff, 418 U.S. at

569 (recognizing that where courts are presented with prison officials’

assessments as to the dangers involved, there is a limited basis for upsetting

such judgments). Thus, because the denial was an effort to shield the alleged

victim from possible harm, Carryl’s right to call witnesses was not

unreasonably restricted.




    1To the extent that Carryl argues that any safety concern was alleviated by the fact that Prisoner Y
had been moved to a different MDOC facility, there is nothing to suggest that the disciplinary hearing
officer was aware of the fact—if true—that Prisoner Y had been moved. See Vasquez v. Coughlin,
726 F. Supp. 466, 469 (S.D.N.Y. 1989) (determining that, when investigation into a witness’s
whereabouts at the time of the hearing might have shown the non-existence of any institutional need
to prevent the witness from testifying, negligence alone does not amount to a due process violation).
Moreover, even if the hearing officer had been aware of that fact, that does not foreclose his finding
of potential danger to Prisoner Y. See Wolff v. McDonnell, 418 U.S. 539, 562 (1974) (“Relationships
among the inmates are varied and complex and perhaps subject to the unwritten code that exhorts
inmates not to inform on a fellow prisoner.”).
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B.    Sufficiency of the Evidence

      [¶8] Carryl next contends that the hearing officer’s finding of guilt was

not supported by substantial evidence in the record. “Substantial evidence

exists when a reasonable mind would rely on that evidence as sufficient

support for a conclusion. We examine the entire record to determine whether

the [hearing officer] could fairly and reasonably find the facts as [he] did.”

Richard, 2018 ME 122, ¶ 21, 192 A.3d 611 (citation and quotation marks

omitted). “Administrative agency findings of fact will be vacated only if there

is no competent evidence in the record to support a decision.” Friends of Lincoln

Lakes v. Bd. of Envtl. Prot., 2010 ME 18, ¶ 14, 989 A.2d 1128. Carryl “bears the

burden of persuasion on appeal because he seeks to vacate the [agency]’s

decision.” Richard, 2018 ME 122, ¶ 21, 192 A.3d 611.

      [¶9]    Pursuant to Maine Department of Corrections policy, the

disciplinary hearing officer’s “finding of guilt or innocence must rest solely

upon evidence produced at the hearing, including, but not limited to, the

disciplinary report, the prisoner’s statement, if any, to the investigator, any

exhibits, and the testimony of any witnesses. . . . [A] finding of guilt must be

based on a determination that it is more probable than not that the prisoner

committed the violation.” 1A C.M.R. 03 201 010-26 § 20.1 (VI)(C)(13) (2016).
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      [¶10] Although “an agency is not obligated to include a complete factual

record with its decision, it must include a written statement of facts sufficient

to show a rational basis for the decision.” Int'l Paper Co. v. Bd. of Envtl. Prot.,

1999 ME 135, ¶ 13, 737 A.2d 1047; see also 5 M.R.S. § 9061 (2018). Here, the

extent of the hearing officer’s findings were that Carryl was “guilty based on the

officer[’]s report. I do believe that base[d] on the report from the officer it is

more probable th[a]n not that [the] prisoner did do what’s in the report.” The

hearing officer’s finding of guilt therefore rested solely on the disciplinary

incident report.

      [¶11] The report states that, after finding out about an assault on

Prisoner Y, a corrections officer reviewed the camera system; the officer saw

Carryl leaving his cell at 10:41, going upstairs to cell 204, and leaving cell 204

at 10:43. The report states that this was the time frame of the assault. The

report is silent, however, on the essential elements of an assault violation,

including any evidence that an assault on Prisoner Y in fact occurred or any

evidence of Carryl’s involvement other than being in the vicinity of cell 204

around the time frame of the assault.

      [¶12] Because the hearing officer relied solely on the corrections officer’s

report in determining Carryl’s guilt, and because that report does not provide
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any evidence that another person was subjected to bodily injury or that Carryl

inflicted or attempted to inflict bodily injury on that person, see

1A C.M.R. 03 201 010-29 § 20.1 (VI)(E) (2016), Carryl has demonstrated that

no competent evidence exists to support the hearing officer’s determination.

Accordingly, we vacate the judgment. See Fissmer v. Town of Cape Elizabeth,

2017 ME 195, ¶¶ 18-19, 170 A.3d 797; cf. Friends of Lincoln Lakes, 2010 ME 18,

¶ 23, 989 A.2d 1128.

        The entry is:

                           Judgment vacated.



Fitzgerald Carryl, appellant pro se

Aaron M. Frey, Attorney General, and James E. Fortin, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellee Department of Corrections


Kennebec County Superior Court docket number AP-2018-38
FOR CLERK REFERENCE ONLY
