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Fleming v. Dept. of Corrections
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 74
Docket:		Kno-01-56
Submitted
  on Briefs:	October 2, 2001
Decided:		May 3, 2002

Panel:	CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.




DAVID G. FLEMING v. COMMISSIONER, DEPARTMENT OF CORRECTIONS et al.



CALKINS, J.

	[¶1]  David Fleming appeals from the judgment entered in the Superior
Court (Knox County, Mead, C.J.) granting a motion to dismiss his complaint
for failure to exhaust administrative remedies and for failure to state a claim
upon which relief can be granted.  Fleming, a Maine State Prison inmate, seeks
judicial review of certain conditions surrounding his confinement in the
prison's Special Management Unit (SMU).  We vacate the dismissal of
Fleming's complaint insofar as it seeks review pursuant to M.R. Civ. P. 80C
and 5 M.R.S.A. § 11001 (2002).  
I. FACTS AND PROCEDURAL BACKGROUND
	[¶2]  According to his complaint, on March 3, 1999, Fleming was accused
of assaulting a correctional officer, placed on administrative segregation
status, and moved to the SMU.  Fleming's complaint names Martin
Magnusson, Commissioner of the Department of Corrections (DOC); Jeffrey
Merrill, Warden of Maine State Prison; Nelson Riley, Chief Administrative
Officer of the Maine Correctional Institute (MCI); and Stephen Mahoney, Chief
of MCI Security, as defendants.  The gravamen of Fleming's complaint is that
the DOC officials denied him, inter alia, hot and nutritious food and the
opportunity for exercise in violation of Maine statutes and DOC policies.{1}  He
alleges that he was "denied the same property, food, care and treatment [that]
others on administrat[ive] segregation status are allowed."{2}  He argues that the
DOC officials violated 34-A M.R.S.A. § 3031(1) and (5) (Pamph. 2001) which
provides that persons residing in a correctional or detention facility have a
right to "[n]utritious food in adequate quantities" and "[a] reasonable
opportunity for physical exercise."  His complaint asked the court to order the
DOC officials to provide him with the same necessities that other
administrative segregation inmates are allowed.  He also sought an order
requiring the DOC officials to obey the constitutions and laws.  
	[¶3]  Although the complaint was filed in March 1999, it was not served
until seventeen months later, when after several motions, Fleming was granted
leave to proceed in forma pauperis in the Superior Court.  Between the filing
and service of the complaint, Fleming proceeded with several administrative
grievances primarily concerning the denial of hot food and opportunity for
exercise.  Although his complaint does not contain allegations concerning the
grievance proceedings, Fleming supplied the Superior Court with copies of his
grievances along with decisions of the DOC officials, including the denial of
two of his grievances at level three by Commissioner Magnusson; Fleming
attached these documents to his memorandum in opposition to the DOC
officials' motion to dismiss.
	[¶4]  The DOC officials responded to Fleming's complaint with a motion
to dismiss for failure to exhaust administrative remedies and failure to state a
claim.  Fleming then filed a memorandum in opposition,{3} and the court
entered the following order: 
After review of the parties' submissions without hearing, the court
is satisfied that the Plaintiff's Complaint is subject to dismissal for
failure to state a claim and for failure to exhaust administrative
remedies.  As such, Defendants' Motion to Dismiss is granted.
The court did not state the reasons for its conclusion.
II.  FEDERAL CLAIMS
	[¶5]  Fleming mentioned the United States Constitution in his
complaint, and the DOC officials initially construed the complaint primarily as
one brought pursuant to 42 U.S.C.A. § 1983 (Pamph. 2001).  Thus, in their
memorandum in the Superior Court the DOC officials focused almost
exclusively on Fleming's failure to plead exhaustion of administrative remedies
as required to avoid dismissal of a prisoner's claim under § 1983,
42 U.S.C.A. § 1997e(a) (Supp. 2001); Massey v. Wheeler, 221 F.3d 1030, 1034
(7th Cir. 2000),{4} and his failure to plead facts sufficient to allege a violation of
the Eighth Amendment's ban on cruel and unusual punishment.
	[¶6]  Fleming, however, was not pursuing federal claims.  In his
memorandum objecting to defendants' motion to dismiss, he stated that the
complaint was based upon Maine law and DOC policies.  He further stated:
"This cause of action was not brought forth under . . . U.S.C.A. 42 § 1983."
	[¶7]  As Fleming's complaint pleads neither exhaustion of nor resort to
administrative remedies, his federal claims, if any, under § 1983 or other
federal law, were subject to dismissal.{5}  To the extent, if any, that Fleming
attempted to state claims under federal law, the court's dismissal was proper.  
III. RULE 80C AND THE ADMINISTRATIVE PROCEDURE ACT
	[¶8]  Although Fleming's complaint did not explicitly refer to M.R. Civ. P.
80C or the Administrative Procedure Act (APA), 5 M.R.S.A. §§ 8001-11008
(2002), it is apparent that he was seeking judicial review of the actions of the
DOC officials in their treatment of him while he was in administrative
segregation.  The DOC officials argue in this Court that the following
procedural defects are fatal to Fleming's attempt to seek judicial review: (1) he
filed a complaint rather than a petition for review, as required by Rule 80C and
5 M.R.S.A. § 11002; (2) he sought injunctive relief and damages; (3) he served
the four named defendants only, but did not serve the DOC or the Attorney
General;{6} and (4) he "did not ensure that a record was filed by the agency as
required by 5 M.R.S.A. § 11005."{7}  We do not agree with the DOC officials that
these grounds require dismissal of Fleming's complaint for failure to state a
claim.
	[¶9]  First, we have never held that the failure to designate a Rule 80C
complaint as a "petition" requires dismissal nor have we ever suggested that a
document entitled "complaint" may not serve as a petition for review for
purposes of initiating an action pursuant to the APA.  Second, a request for
damages in a Rule 80C complaint does not require a dismissal of the
complaint.  Indeed, Rule 80C anticipates that a plaintiff (or petitioner) may
add an independent claim for damages, and the rule provides a procedure for
handling that independent claim.  M.R. Civ. P. 80C(i).  It does not appear that
Fleming complied with the requirement to proceed with a damages claim, but
that failure only defeats his claim for damages.  It does not require dismissal of
the entire complaint.  Furthermore, Fleming's request for injunctive relief is
not inconsistent with 5 M.R.S.A. § 11007(4)(B), which gives the court, in an
action pursuant to Rule 80C or section 11001, the power to "direct the agency
to . . . take such action as the court deems necessary."
	[¶10]  Third, with regard to Fleming's failure to serve the DOC itself and
the Attorney General, a technical violation of a statutorily prescribed manner
of notice is not necessarily fatal when it does not prejudice the party receiving
the notice, and a court may disregard nonprejudicial failure to comply with
strict notice requirements.  Town of Ogunquit v. Dep't of Pub. Safety, 2001 ME
47, ¶ 11, 767 A.2d 291, 294.  Fleming's service of the complaint upon the
Commissioner of the DOC was effective to provide the DOC with notice of the
claim.  The docket entries indicate that an Assistant Attorney General accepted
service on behalf of the DOC officials.  The Attorney General's office promptly
entered an appearance by filing the motion to dismiss Fleming's complaint. 
There is no reason to believe that either the DOC or the Attorney General was
without notice or prejudiced by Fleming's failure to effect direct service of
process.   
	[¶11]  Fourth, 5 M.R.S.A. § 11005 places the burden on the DOC to
provide the court with the record of the proceedings Fleming seeks to challenge. 
Nothing in section 11005, Rule 80C(f), or the cases interpreting them requires,
as the DOC officials argue, that a petitioner "ensure" the agency's filing of the
record.  Therefore, Fleming was not required to supply the court with the record
of his grievance proceedings.
	[¶12]  Because Fleming's complaint can be fairly read to seek judicial
review of the actions of the DOC officials who Fleming claims violated his
rights under Maine statutes, primarily 34-A § 3031(1) and (5), and DOC rules,
he has stated a claim for review of final agency action at least with regard to
those matters that he pursued through the grievance process.{8}  Therefore, his
case must be allowed to proceed.{9}
	The entry is:
Judgment vacated and remanded to the Superior Court
for further proceedings consistent with this opinion.

For plaintiff: David G. Fleming Maine State Prison 807 Cushing Road Warren, ME 04864-4600 Attorneys for defendants: G. Steven Rowe, Attorney General Susan A. Sparaco, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The record does not contain any DOC rules, policies, or directives other than those attached to Fleming's brief and to an earlier memorandum in support of Fleming's motion for reconsideration of the court's (Marsano, J.) denial of leave to proceed in forma pauperis. Whether those attached policies were current and applicable to Fleming is impossible to discern from this record. {2} . Specifically, he states that (1) he was "denied hot food and sufficient nutritious food," toothpaste, toilet paper, a cup for drinking, shoes, and a pen; (2) he was prevented from engaging in any exercise; and (3) he was allowed a pencil and paper only between 6 and 10 p.m. Fleming's complaint also alleges that he was denied access to the court, law books, and contact with his attorney. It is primarily the food and exercise issues that he has pursued on appeal. {3} . The DOC officials, apparently believing that Fleming's objection was untimely and that Fleming improperly failed to provide them with copies of the exhibits he included with the motion, responded with a motion to strike the objection and memorandum, to which Fleming filed a further objection. The court did not grant the motion to strike. {4} . The exhaustion requirement of § 1997e(a), erected in 1996 pursuant to the Prison Litigation Reform Act, reads: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. The requirement mandates dismissal of a prisoner's claim without prejudice for failure to plead exhaustion of all administrative remedies. Massey, 221 F.3d at 1034; see also Perez v. Wis. Dep't of Corr., 182 F.3d 532, 534 (7th Cir. 1999) (requiring dismissal despite exhaustion during pendency of case). Furthermore, to the extent that a prisoner seeks to bring a claim directly under a federal constitutional provision, the prisoner must exhaust administrative remedies. Porter v. Nussle, 122 S. Ct. 983, 988 (2002). {5} . The DOC officials have not argued that Fleming was required to plead exhaustion of administrative remedies with respect to any State claim. {6} . Rule 80C(a) requires service "as provided by 5 M.R.S.A. § 11003," which requires the following service: 1. Petition served. The petition for review shall be served by certified mail, return receipt requested, upon: A. The agency; B. All parties to the agency proceeding; and C. The Attorney General. M.R. Civ. P. 4(d)(12) also requires service upon the Attorney General. {7} . Title 5 M.R.S.A. § 11005 states in part: The agency shall file in the reviewing court within 30 days after the petition for review is filed, or within such shorter or longer time as the court may allow on motion, the original or a certified copy of the complete record of the proceedings under review. Within 20 days after the petition for review is filed, all parties to the agency proceeding who wish to participate in the review shall file a written appearance which shall state a position with respect to affirmance, vacation, reversal or modification of the decision under review. {8} . Although there is some question as to whether Fleming was attempting to seek review of the agency rulemaking process, we have interpreted his complaint as one pursuant to M.R. Civ. P. 80C and 5 M.R.S.A. § 11001 seeking review of the actions of the DOC officials in denying him the opportunity for exercise and certain items such as hot nutritious food. To the extent that he is claiming that the actions of the DOC officials are in excess of statutory authority, section 11007(2) permits a challenge to agency action on that basis. The record is insufficient for a determination as to whether any of the rules, policies, or directives complained about by Fleming are rules within the scope of the rulemaking provisions of the APA. 5 M.R.S.A. § 8002(9). {9} . The DOC officials have not suggested that Fleming's appeal is moot. Although mootness seems likely, given the fact that Fleming's appeal concerns his placement in the SMU in 1999, the record is devoid of sufficient facts to allow us to dismiss the appeal on that basis. Obviously, on remand the Superior Court will need to consider whether the claim is moot, and if so, whether exceptions to the mootness doctrine may apply.