Fitzgerald Carryl v. Department of Corrections — 2019 ME 114

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

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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.
1 To 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