MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2016	ME	122	
Docket:	      Kno-15-505	
Submitted	
  On	Briefs:	 June	22,	2016	
Decided:	     August	2,	2016	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                JORGE	A.	TORRES	
                                        	
                                       v.	
                                        	
                           DEPARTMENT	OF	CORRECTIONS	
	
	
GORMAN,	J.	

       [¶1]		Jorge	A.	Torres	appeals	from	an	order	of	the	Superior	Court	(Knox	

County,	 Billings,	 J.)	 dismissing,	 for	 failure	 to	 pay	 an	 initial	 partial	 filing	 fee,	

Torres’s	petition	seeking	judicial	review	of	a	final	Department	of	Corrections	

decision.	 	 We	 vacate	 the	 judgment	 and	 remand	 the	 case	 for	 further	

proceedings.	

                                     I.		BACKGROUND	

	      [¶2]	 	 This	 case	 has	 an	 exceedingly	 muddled	 procedural	 history,	

compounded	by	confounding	actions	by	the	Department	of	Corrections.		In	an	

effort	 to	 ensure	 that	 this	 series	 of	 events	 is	 not	 repeated,	 we	 describe	 the	

events	that	occurred	in	some	detail.	
2	 	

		     [¶3]		Torres	is	incarcerated	at	the	Maine	State	Prison.		On	July	20,	2015,	

pursuant	 to	 5	 M.R.S.	 §§	 11001-11008	 (2015)	 and	 M.R.	 Civ.	 P.	 80C,	 he	 filed	 a	

petition	 in	 the	 Superior	 Court	 (Knox	 County)	 for	 judicial	 review	 of	 a	 final	

Department	 of	 Corrections	 decision	 finding	 him	 guilty	 of	 the	 disciplinary	

offense	 of	 tattooing.	 	 With	 the	 petition,	 he	 filed	 an	 application	 to	 proceed	

without	 payment	 of	 fees,	 an	 indigency	 affidavit,	 and	 a	 certified	 prisoner	

account	 statement.	 	 See	4	M.R.S.	 §	 1058(1)	 (2015);	 M.R.	 Civ.	 P.	 91(a)(1),	 (2).		

The	 account	 statement	 showed	 that	 he	 had	 $0.03	 available	 in	 his	 general	

account,	that	the	average	monthly	balance	in	that	account	during	the	previous	

six	 months	 was	 $3.14,	 and	 that	 the	 average	 monthly	 deposits	 during	 those	

months	equaled	$25.83.	

	      [¶4]	 	In	 an	 order	 dated	 July	 22,	 2015,	 the	court	(Billings,	J.)	 found	 that	

Torres’s	 application	 to	 proceed	 without	 payment	 of	 fees	 was	 complete,	 that	

the	 petition	 for	 review	 was	 not	 frivolous,	 and	 that	 Torres	 was	 proceeding	 in	

good	faith.		Based	on	the	information	in	Torres’s	account	statement,	the	court	

ordered	 him	 to	 pay	 an	 initial	 partial	 filing	 fee	 of	 $5.16	 by	August	 12,	 “failing	

which	the	matter	shall	be	dismissed	for	lack	of	prosecution.”	

	      [¶5]		Through	a	motion	dated	July	29,	but	not	received	by	the	court	until	

August	 7,	 2015,	 Torres	 requested	 that	 the	 court	 “clarify	 prisoner	 funds	 and	
   	                                                                                             3	

inability	 to	 pay	 partial	 filing	 fee,”	 arguing	 that	 because	 he	 did	 not	 have	 the	

means	to	pay	the	initial	partial	filing	fee,	the	court	could	not	prevent	him	from	

proceeding	 with	 his	 petition	 for	 review.	 	 He	 included	 an	 updated	 certified	

account	 statement	 showing	 that	 he	 had	 no	 money	 available	 in	 his	 general	

account,	that	the	average	monthly	balance	during	the	previous	six	months	was	

$2.15,	 and	 that	 the	 average	 monthly	 deposits	 during	 those	 months	 was	

$25.83.	

       [¶6]		At	the	same	time,	Torres	filed	a	“motion	on	acceptance	of	service”	

and	a	“motion	to	request	service.”		In	these	motions,	he	asserted	that	he	was	

unable	to	pay	for	service	by	certified	mail	as	required	by	5	M.R.S.	§	11003(1),	

but	 had	 mailed	 four	 copies	 of	 his	 petition,	 eight	 copies	 of	 service	

acknowledgement	forms,	four	self-addressed	stamped	envelopes,	and	a	letter,	

by	ordinary	first	class	mail,	to	the	Assistant	Attorney	General	representing	the	

Department.1		Attached	to	one	of	these	motions	was	a	letter	Torres	received	

from	the	Department’s	counsel	after	he	attempted	to	serve	the	Department	by	

regular	mail.		The	letter,	dated	July	1,	2015,	states:	

        	     I	 am	 responding	 to	 your	 letter	 dated	 June	 26,	 2015	 asking	
        me	 to	 accept	 service	 by	 regular	 mail	 of	 a	 Rule	 80C	 that	 you	 may	
        have	filed	in	court.	
        	

  1		Torres	also	alleged	that	the	Department	does	not	send	prisoners’	mail	by	certified	mail.	
4	 	

     	      I	have	checked	your	facility	account	and	have	been	told	that	
     you	 received	 $100.00	 as	 recently	 as	 May	 11,	 2015	 and	 then	
     proceeded	 to	 spend	 most	 of	 it	 on	 canteen	 purchases	 on	 May	 15	
     and	May	21.		Therefore,	I	will	not	accept	service.2	
     	
Torres	 requested	 that	 the	 court	 serve	 his	 petition	 on	 the	 Department	 of	

Corrections	or	that	it	order	the	Attorney	General’s	Office	to	accept	service	of	

his	petition	by	regular	first	class	mail.		

    	   [¶7]		On	September	8,	2015,	one	month	after	filing	his	motions,	Torres		

filed	 a	 “motion	 to	 request	 status	 update	 on	 previous	 motions.”	 	 And,	 after	

hearing	nothing	from	the	court,	on	September	23,	2015,	Torres	filed	a	“motion	

to	 request	 leave	 to	 amend	 original	 complaint.”	 	 Two	 days	 later,	 the	 court	

issued	 an	 order	 dismissing	 the	 petition,	 based	 on	 its	 finding	 that	 Torres	 had	

failed	 to	 pay	 $5.61	 by	 August	 12.	 	 The	 court	 made	 no	 finding	 regarding	

Torres’s	 ability	 to	 pay	 the	 initial	 partial	 filing	 fee.	 	 The	 court	 also	 did	 not	

address	Torres’s	motions	about	service	costs	or	amended	pleadings,	declaring	

that	all	pending	motions	were	moot.	

	       [¶8]		On	October	13,	2015,	Torres	filed	a	timely	notice	of	appeal,	along	

with	 an	 application	 to	 proceed	 with	 the	 appeal	 without	 payment	 of	 fees,	 an	


    2		The	trial	court	file	contains	a	statement	of	the	“facility	account,”	showing	that	$25	of	that	$100	

was	 used	 to	 make	 a	 payment	 towards	 Torres’s	 fine	 obligations,	 $69.36	 was	 spent	 in	 the	 prison	
canteen,	and	the	remainder	was	used	for	telephone	calls.		The	statement	also	shows	that,	other	than	
the	 $100	 he	 received	 on	 May	 11,	 the	 only	 other	 deposit	 of	 money	 greater	 than	 $10	 since	
December	29,	2014,	was	a	$45	deposit	made	on	April	29,	2015.		From	that	sum,	$11.25	was	taken	
for	fine	payments.	
    	                                                                                                            5	

indigency	 affidavit,	 and	 an	 updated	 certified	 account	 statement.	 	 The	 same	

day,	the	court	found	that	the	appeal	was	not	frivolous	and	was	taken	in	good	

faith,	and	ordered	that	Torres	pay	an	initial	partial	appeal	filing	fee	of	$4.83	by	

October	 30,	 2015,	 “failing	 which	 the	 matter	 shall	 be	 dismissed	 for	 lack	 of	

prosecution.”		

	       [¶9]		Also	on	October	13,	although	no	portion	of	the	filing	fee	had	been	

paid,	the	clerk’s	office	electronically	sent	the	notice	of	appeal	and	copies	of	all	

of	 Torres’s	 filings	 to	 the	 Office	 of	 the	 Clerk	 of	 the	 Law	 Court.3	 	 That	 office	

issued	 a	 “notice	 of	 docketing”	 to	 Torres	 and	 to	 the	 Office	 of	 the	 Attorney	

General,	on	behalf	of	the	Department	of	Corrections.		On	October	22,	2015,	we	

received	a	letter	from	the	Department	of	Corrections	stating,	inter	alia:	

        	     The	Department	of	Corrections	was	not	served	and	is	not	a	
        party	 to	 the	 case.	 	 Therefore,	 we	 will	 not	 be	 participating	 in	 the	
        appeal	unless	the	court	directs	us	to	do	so.	
        	
        [¶10]		Meanwhile,	back	in	the	trial	court,	Torres	again	moved	“to	clarify	

prisoner	funds	and	inability	to	pay	partial	filing	fee,”	arguing	that	he	did	not	

have	the	means	to	pay	the	initial	partial	appeal	filing	fee	and	that	he	could	not	

be	prevented	from	proceeding	with	the	appeal	on	that	basis.		On	November	4,	

2015,	the	court	denied	the	motion	without	comment.		On	November	17,	2015,	

    3		Maine	Rule	of	Appellate	Procedure	3(a)	requires	a	trial	court	clerk	to	“transmit	a	copy	of	the	

notice	 of	 appeal”	 to	 the	 Clerk	 of	 the	 Law	 Court	 “[u]pon	 receipt	 of	 the	 notice	 of	 appeal	 and,	 when	
required,	the	requisite	fee	or	waiver.”		(Emphasis	added.)	
6	 	

Torres	 filed	 an	 “objection”	 to	 the	 denial	 of	 the	 motion.	 	 One	 month	 later,	 on	

December	 16,	 the	 court	 ordered	 Torres	 to	 provide	 yet	 another	 updated	

certified	account	statement;	stated	that	it	would	“reassess	[Torres’s]	financial	

status	 and	 issue	 an	 appropriate	 order”;	 and	 stayed,	 pending	 receipt	 of	 the	

updated	 account	 statement,	 the	 previous	 order	 requiring	 the	 initial	 partial	

appeal	filing	fee.	

	      [¶11]		Given	the	Department’s	assertion	that	it	was	“not	a	party	to	the	

case,”	 and	 that	 it	 would	 “not	 be	 participating	 in	 the	 appeal	 unless	 the	 court	

direct[ed]	[it]	to	do	so,”	we	invited	the	Attorney	General’s	Office	to	file	a	brief	

as	 amicus	 curiae,	 and	 ordered	 that	 the	 Department	 “will	 be	 a	 party	 to	 this	

action	unless	the	dismissal	is	affirmed.”		The	Department,	while	continuing	to	

assert	that	it	was	“not	a	party	to	this	appeal”	because	it	had	not	been	served,	

filed	a	motion	to	dismiss	the	appeal,	arguing	that	neither	we	nor	the	trial	court	

had	 subject	 matter	 jurisdiction	 over	 the	 case.	 	 We	 decided	 to	 consider	 the	

Department’s	motion	with	the	merits	of	the	appeal.	

                                     II.		DISCUSSION	

A.	    Motion	to	Dismiss	the	Appeal	

	      [¶12]	 	 We	 first	 note	 that	 the	 Attorney	 General’s	 Office,	 in	 its	 brief,	 has	

now	 requested	 leave	 to	 withdraw	 the	 Department’s	 motion	 to	 dismiss	 this	
      	                                                                                     7	

appeal.		That	request	is	granted,	and	we	therefore	do	not	address	the	motion	

further.	

B.	       Dismissal	for	Failure	to	Pay	Initial	Partial	Filing	Fee	

	         [¶13]		Torres	argues	that	because	he	has	no	funds	with	which	to	pay	the	

initial	 partial	 filing	 fee,	 the	 court	 abused	 its	 discretion	 when	 it	 dismissed	 his	

petition	for	failure	to	pay	that	fee.		The	Attorney	General’s	Office	agrees	with	

Torres	 and	 recommends	 that	 the	 case	 be	 remanded	 for	 the	 trial	 court	 to	

determine	whether	Torres	has	the	ability	to	pay	the	filing	fee.		“We	review	the	

court’s	 dismissal	 of	 an	 action	 for	 failure	 to	 prosecute	 for	 an	 abuse	 of	

discretion.”	 	 West	 Point-Pepperell	 v.	 State	 Tax	 Assessor,	 1997	 ME	 58,	 ¶	 7,	

691	A.2d	 1211.	 	 We	review	 the	 Superior	 Court’s	 authority	 de	 novo,	 City	 of	

Biddeford	v.	Holland,	2005	ME	121,	¶	6,	886	A.2d	1281,	and	we	also	interpret	

statutes	and	court	rules	de	novo,	Carrier	v.	Sec’y	of	State,	2012	ME	142,	¶	12,	

60	 A.3d	 1241	 (statutes);	 Cayer	 v.	 Town	 of	 Madawaska,	 2009	 ME	 122,	 ¶	 7,	

984	A.2d	207	(rules).	

	         [¶14]		Any	person	seeking	to	proceed	with	an	action,	motion,	or	appeal	

without	payment	of	fees	or	costs	may	file	or	renew	an	application	in	the	court	

where	the	action,	motion,	or	appeal	is	to	be	filed.		M.R.	Civ.	P.	91(a)(1),	(f)(1).		

The	person	must	include	an	affidavit	disclosing	his	or	her	assets,	income,	and	
8	 	

expenses,	 and	 certifying	 that	 the	 filing	 is	 made	 in	 good	 faith.	 	 M.R.	 Civ.	P.	

91(a)(2),	 (f)(1).	 	 Although	 nonincarcerated	 persons	 may	 have	 filing	 fees	 and	

service	 costs	 waived	 altogether,	 there	 is	 no	 such	 option	 for	 incarcerated	

persons	 seeking	 to	 “bring	 a	 civil	 action	 arising	 under	 federal	 or	 state	 law	 in	

any	court	in	this	State	with	respect	to	a	condition	of	that	person’s	confinement	

or	the	effect	of	an	action	or	inaction	by	a	government	official	on	the	life	of	that	

person	confined.”		4	M.R.S.	§	1058(1).		The	only	relief	available	to	them	is	to	

have	an	extended	period	of	time	to	pay	the	entire	fee.		4	M.R.S.	§	1058(2)-(5)	

(2015).		In	order	to	receive	that	relief,	incarcerated	persons	seeking	to	bring	

certain	 civil	 actions	 without	 prepayment	 of	 the	 filing	 fee	 must	 submit,	 in	

addition	 to	 the	 documents	 required	 by	 Rule	 91,	 a	 certified	 prisoner	 account	

statement.		4	M.R.S.	§	1058(1).		Section	1058	governs	the	process	by	which	the	

court	must	then	review	the	prisoner’s	application.		See	4	M.R.S.	§	1058(2)-(5).	

	      [¶15]		The	court	must	waive	prepayment	of	the	full	filing	fee	if	it	“finds	

that	 the	 action	 or	 appeal	 is	 not	frivolous	 and	 has	 been	 brought	 in	 good	 faith	

and	that	the	person	is	without	sufficient	funds	to	pay	the	filing	fee.”		4	M.R.S.	

§	1058(2).		Where	the	court	makes	these	findings	and	waives	prepayment,	it	

must	 “assess	 the	 person’s	 financial	 status	 and,	 when	 funds	 exist,	 collect	 as	 a	
    	                                                                                                               9	

partial	 payment	 of	 the	 filing	 fee	 an	 initial	 partial	 filing	 fee.”4	 	 4	 M.R.S.	

§	1058(3).		In	any	event,	

      A	 person	 may	 not	 be	 prohibited	 from	 bringing	 a	 civil	 action	 or	
      appealing	a	civil	action	if	the	court	finds	that	the	action	or	appeal	
      is	 not	 frivolous	 and	 has	 been	 brought	 in	 good	 faith	 and	 that	 the	
      person	 has	 no	 assets	 and	 no	 means	 by	 which	 to	 pay	 the	 initial	
      partial	filing	fee.	
      	
4	M.R.S.	§	1058(5).	

	        [¶16]	 	 We	 have	 not	 previously	 examined	 the	 question	 presented	 here:	

whether	a	court	can	dismiss	an	indigent	prisoner’s	action	for	failure	to	pay	the	

initial	 partial	 filing	 fee	 without	 first	 determining	 that	 the	 person	 has	 the	

ability	 to	 pay	 that	 fee.	 	 The	relevant	 provisions	 of	 section	 1058	 are	 virtually	

identical	 to	 provisions	 found	 in	 the	 federal	 statute	 governing	 prisoner	

applications	 to	 proceed	 with	 an	 action	 or	 appeal	 without	 payment	 of	 fees.		

See	28	 U.S.C.S.	 §	 1915(a),	 (b)	 (LEXIS	 through	 Pub.	 L.	 No.	 114-95).		

The	provisions	of	28	U.S.C.S.	§	1915(b)	that	require	eventual	payment	in	full	



    4	 	 The	 statute	 specifies	 that	 the	 initial	 partial	 filing	 fee	 is	 20%	 of	 whichever	 is	 greater:	 “the	

average	monthly	deposits”	to	the	person’s	account	during	the	six	months	preceding	the	filing	of	the	
action	or	appeal,	or	“the	average	monthly	balance”	in	the	person’s	account	during	the	same	period.		
4	M.R.S.	§	1058(3)(A),	(B)	(2015).		Torres	does	not	claim	that	the	court	calculated	the	initial	partial	
filing	fee	incorrectly.	
    	
    Where	the	court	waives	prepayment	of	the	full	filing	fee	and	assesses	an	initial	partial	filing	fee,	
the	applicant	must	still	eventually	pay	the	full	filing	fee.		4	M.R.S.	§	1058(3)	(2015).		To	satisfy	this	
obligation,	after	payment	of	the	initial	partial	filing	fee,	the	person	must	“make	monthly	payments	
of	 20%	of	 the	 preceding	 month’s	 deposits	 to	 the	 general	 client	 account”	 each	 time	 his	 or	 her	
account	balance	exceeds	$10.		4	M.R.S.	§	1058(4)	(2015).	
10	 	

and	 establish	 the	 procedure	 for	 assessing	 and	 collecting	 initial	 partial	 filing	

fees	 were	 enacted	 as	 part	 of	 the	 Prisoner	 Litigation	 Reform	 Act,	 “which	

installed	 a	 variety	 of	 measures	 designed	 to	 filter	 out	 the	 bad	 claims	 filed	 by	

prisoners	and	facilitate	consideration	of	the	good.”		Bruce	v.	Samuels,	136	S.	Ct.	

627,	629-30	(2016)	(alteration	omitted)	(quotation	marks	omitted).	

	       [¶17]	 	 As	 both	 Torres	 and	 the	 Attorney	 General’s	 Office	 point	 out,	

several	 federal	 appeals	 courts	 have	 directly	 addressed	 the	 issue	 and	 have	

concluded	that	the	trial	court	may	not	dismiss	a	prisoner’s	claim	due	to	failure	

to	pay	a	partial	initial	filing	fee	without	first	finding	that	the	prisoner	has	the	

ability	 to	 pay	 the	 fee.	 	 See	 Thomas	 v.	 Butts,	 745	 F.3d	 309,	 312-13	 (7th	 Cir.	

2014)	 (per	 curiam)	 (concluding	 that	 the	 trial	 court	 “abused	 its	 discretion	 by	

dismissing	 the	 case	 without	 determining	 whether	 [the	 plaintiff,	 a	 prisoner,]	

was	at	fault	for	not	paying	[the]	initial	[partial	filing]	fee”);	Taylor	v.	Delatoore,	

281	 F.3d	 844,	 850	 (9th	Cir.	2002)	 (“[A]	 district	 court	 cannot	 dismiss	 an	

[indigent]	 prisoner’s	 case	 based	 on	 his	 failure	 to	 pay	 the	 initial	 fee	 when	 his	

failure	 to	 pay	 is	 due	 to	 the	 lack	 of	 funds	 available	 to	 him	 when	 payment	 is	

ordered.”);	see	also	Wilson	v.	Sargent,	313	F.3d	1315,	1320-22	(11th	Cir.	2002)	

(per	curiam);	 Hatchet	 v.	 Nettles,	 201	 F.3d	 651,	 654	 (5th	 Cir.	 2000)	

(per	curiam);	 Tucker	 v.	 Branker,	 142	F.3d	 1294,	 1296	 (D.C.	 Cir.	 1998);	
    	                                                                                              11	

Henderson	 v.	 Norris,	 129	 F.3d	 481,	 483-84	 (8th	 Cir.	 1997)	 (per	 curiam);	

Hampton	v.	Hobbs,	106	F.3d	1281,	1284	(6th	Cir.	1997).5	

	       [¶18]		These	decisions	are	grounded	in	the	plain	language	of	provisions	

of	section	1915(b)	that	are	analogous	to	those	found	in	4	M.R.S.	§	1058—the	

court	 is	 to	 collect	 the	 initial	 partial	 filing	 fee	 “when	 funds	 exist,”	 28	 U.S.C.S.	

§	1915(b)(1);	 see	 4	 M.R.S.	 §	 1058(3),	 and	 the	 court	 cannot	 prohibit	 a	 person	

from	 proceeding	 with	 a	 nonfrivolous	 action	 brought	 in	 good	 faith	 where	 the	

person	 “has	 no	 assets	 and	 no	 means	 by	 which	 to	 pay	 the	 initial	 partial	 filing	

fee,”	 28	 U.S.C.S.	 §	1915(b)(4);	 see	 4	 M.R.S.	 §	 1058(5).	 	 As	 the	 Ninth	 Circuit	

Court	of	Appeals	pointed	out,	the	filing	fee	requirements	for	prisoners	do	not	

violate	 the	 constitutional	 right	 of	 access	 to	 the	 courts	 because	 they	 contain	

these	provisions.		Taylor,	281	F.3d	at	847-48.	

	       [¶19]		Based	on	the	plain	language	of	section	1058,	we	reach	the	same	

conclusion	 here.	 	 In	 reviewing	 a	 prisoner’s	 application	 to	 proceed	 with	 a	

motion,	 action,	 or	 appeal	 without	 payment	 of	 fees	 or	 costs,	 where	 the	 court	

finds	that	the	action	or	appeal	is	not	frivolous	and	has	been	brought	in	good	

faith	and	that	the	applicant	does	not	have	sufficient	funds	to	pay	the	full	filing	

fee,	 it	 must	 waive	 prepayment	 of	 the	 full	 fee.	 	 See	 4	 M.R.S.	 §	 1058(2).		

    5		Citing	28	U.S.C.S.	§	1915(b)(4)	(LEXIS	through	Pub.	L.	No.	114-95),	the	United	States	Supreme	

Court	stated	recently	that	“[t]he	initial	partial	filing	fee	may	not	be	exacted	if	the	prisoner	has	no	
means	to	pay	it.”		Bruce	v.	Samuels,	136	S.	Ct.	627,	630	(2016).	
12	 	

The	court	 must	 then	 assess	 an	 initial	 partial	 filing	 fee.	 	 See	 4	 M.R.S.	

§	1058(3)(A),	 (B).	 	 If	 the	 person	 claims	 that	 he	 or	 she	 does	 not	 have	 enough	

money	to	pay	the	initial	partial	filing	fee,	the	court	must	make	a	finding	as	to	

the	 person’s	 ability	 to	 pay.	 	 See	 4	 M.R.S.	 §	 1058(3),	 (5).	 	 The	 court	 cannot	

dismiss	an	action	based	on	nonpayment	of	the	initial	partial	filing	fee	unless	it	

has	found	that	the	person	has	the	ability	to	pay	the	fee.		See	4	M.R.S.	§	1058(3),	

(5);	see	also,	e.g.,	Thomas,	745	F.3d	at	312-13;	Taylor,	281	F.3d	at	850.	

	       [¶20]		Here,	because	the	court	made	no	finding	as	to	Torres’s	ability	to	

pay	when	it	dismissed	his	case,	we	must	vacate	the	judgment	and	remand	the	

case	to	the	Superior	Court	to	determine	whether	Torres	has	means	to	pay	the	

initial	partial	filing	fee,	and	for	the	case	to	proceed	accordingly.	

C.	     Service	

	       [¶21]	 	 On	 remand,	 the	 court	 should	 also	 address	 the	 motions	 pending	

when	 it	 dismissed	 Torres’s	 petition,	 including	 Torres’s	 motions	 requesting	

that	the	court	pay	for	service	costs	or	order	the	Department	to	accept	service	

by	regular	first	class	mail.		

	       [¶22]	 	 Pursuant	 to	 the	 Administrative	 Procedure	 Act,	 a	 petition	 for	

review	 of	 a	 final	 agency	 decision	 “shall	 be	 served	 by	 certified	 mail,	 return	

receipt	requested,	upon”	the	agency,	the	parties	to	the	agency	proceeding	that	
    	                                                                                            13	

gave	 rise	 to	 the	 decision	 to	 be	 reviewed,	 and	 the	 Attorney	 General.	 	 5	 M.R.S.	

§	11003(1).	 	 That	 means	 that,	 in	 cases	 like	 this	 one,	 where	 the	 court	 must	

order	 all	 or	 part	 of	 an	 indigent	 prisoner’s	 service	 costs	 to	 be	 paid	 as	 an	

administrative	 expense	 of	 the	 court,	 see	 M.R.	 Civ.	 P.	 91(c),	 if	 the	 Attorney	

General’s	Office	will	not	accept	service	by	regular	mail,	the	judicial	branch	will	

bear	 the	 cost	 of	 having	 the	 prisoner’s	 suit	 against	 the	 Department	 of	

Corrections	served	on	the	Department’s	counsel	by	certified	mail.		

	       [¶23]	 	 The	 Attorney	 General’s	 Office	 argues	 that	 the	 certified	 mail	

requirement	“allows	for	an	inexpensive	and	informal	method	of	service”	and	

helps	to	“alert[]	the	agency	as	to	the	nature	of	the	communication”	because	“it	

is	 often	 difficult	 to	 identify	 whether	 the	 communication	 has	 some	 legal	

significance.”	 	 Whether	 it	 is	 “inexpensive”	 to	 accomplish	 service	 by	 certified	

mail	 depends,	 of	 course,	 on	 one’s	 circumstances.	 	 According	 to	 Torres,	 each	

mailing	costs	about	$7.		Moreover,	the	Department	makes	no	claim	that	it	did	

not	 understand	 the	 nature	 of	 Torres’s	 petition	 or	 that	 it	 did	 not	 receive	 it.		

See	Gaeth	v.	Deacon,	2009	ME	9,	¶	27,	964	A.2d	621	(“The	purpose	of	the	rule	

regarding	service	is	to	achieve	due	process	by	giving	sufficient	notice	of	civil	

actions.”);	 Phillips	 v.	 Johnson,	 2003	 ME	 127,	 ¶	 24,	 834	 A.2d	 938	 (“[A]ctual	

notice	 is	 the	 ultimate	 goal	 of	 any	 form	 of	 service	 .	 .	 .	 .”).	 	 Torres’s	 petition	 is	
14	 	

titled	“PETITION	FOR	JUDICIAL	REVIEW	OF	FINAL	AGENCY	ACTION”	and,	in	

the	 caption,	 clearly	 identifies	 the	 Department	 as	 a	 defendant.	 	 Rather	 than	

invoking	 the	 certified	 mail	 requirement	 to	 ensure	 that	 it	 was	 aware	 of	 the	

nature	 of	 Torres’s	 communication,	 however,	 it	 appears	 that	 the	 Department	

used	 the	 requirement	 as	 a	 tool	 to	 punish	 Torres	 for	 (in	 the	 Department’s	

view)	mismanaging	his	personal	funds.	

         [¶24]		At	this	time,	no	statute	or	rule	authorizes	us	or	the	trial	court	to	

order	 the	 Department,	 in	 whose	 custody	 Torres	 is	 confined,	 to	 simply	

acknowledge	 service	 in	 these	 circumstances.	 	 As	 the	 Department’s	 counsel’s	

letter	 to	 Torres	 and	 the	 Attorney	 General’s	 brief	 both	 state,	 however,	 the	

Department	 can	 and	 does	 sometimes	 waive	 the	 certified	 mail	 requirement	

and	accept	service	by	regular	mail.6		In	this	case,	however,	given	the	length	of	

time	 the	 case	 has	 languished,	 and	 the	 obvious	 familiarity	 of	 the	 Department	

with	 Torres’s	 complaint,	 we	 would	 expect	 the	 Department	 to	 acknowledge	

that	it	has	been	served	and	to	move	forward	with	its	defense	to	the	merits	of	

Torres’s	petition.		See	M.R.	Civ.	P.	4(c)(1).	




   6		The	Department	may,	in	general,	wish	to	standardize	a	process	for	accepting	service	by	regular	

mail.	
    	                                                                            15	

         The	entry	is:	

                            Order	 dismissing	 petition	 vacated.	 	 Remanded	
                            for	 further	 proceedings	 consistent	 with	 this	
                            opinion.	
	
	    	     	      	      	     	
	
On	the	briefs:	
	
     Jorge	A.	Torres,	appellant	pro	se	
     	
     Janet	T.	Mills,	Attorney	General,	James	E.	Fortin,	Asst.	Atty.	Gen.,	and	
     Diane	E.	Sleek,	Asst.	Atty.	Gen.,	Office	of	the	Attorney	General,	Augusta,	
     for	amicus	curiae	Office	of	the	Attorney	General	
     	
     The	Department	of	Corrections	did	not	file	a	brief	
	
	
	
Knox	Superior	Court	docket	number	AP-2015-16	
FOR	CLERK	REFERENCE	ONLY	
	
