MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2018	ME	141	
Docket:	      Kno-17-547	
Submitted	
  On	Briefs:	 September	26,	2018	     	
Decided:	     October	16,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                GARY	SWEENEY	
                                       	
                                      v.	
                                       	
                          DEPARTMENT	OF	CORRECTIONS	
	
	
MEAD,	J.	

       [¶1]	 	 Gary	 Sweeney	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Knox	County,	Mallonee,	J.)	dismissing	as	untimely	his	petition	seeking	review	

of	a	rule	promulgated	by	the	Department	of	Corrections	(DOC),	which	Sweeney	

asserts	is	in	violation	of	a	Maine	statute	and	several	provisions	of	the	federal	

and	state	constitutions.		We	agree	with	Sweeney’s	contention	on	appeal	that,	

given	the	clear	import	of	his	challenge	to	the	DOC	rule,	the	court	should	have	

treated	his	petition	as	a	complaint	for	declaratory	judgment	and	allowed	him	

to	amend	his	petition	to	that	effect.		Accordingly,	we	vacate	the	judgment	and	

remand	for	further	proceedings.	
2	

                                           I.		BACKGROUND	

	        [¶2]	 	 On	 April	 4,	 2017,	 Sweeney,	 a	 prisoner	 at	 the	 Maine	State	 Prison,	

brought	 a	 petition	 for	 judicial	 review	 of	 final	 agency	 action	 citing	

M.R.	Civ.	P.	80B	in	the	Superior	Court,	claiming	that	DOC	had	promulgated	and	

enforced	a	rule	that	violated	34-A	M.R.S.	§	3039	(2017)1	and	several	provisions	

of	the	United	States	and	Maine	Constitutions.		The	rule,	with	some	exceptions	

not	applicable	to	Sweeney,	required	any	prisoner	who	earned	money	for	work	

to	have	ten	percent	of	his	earnings,	up	to	$1,000,	collected	and	deposited	into	a	

“personal	 savings	 escrow	 account,”	 to	 be	 returned	 to	 the	 prisoner	 upon	 his	

release.		1A	C.M.R.	03	201	011-5	§	2.12(VI)(F)	(2017)	(effective	Oct.	12,	2016).	

	        [¶3]	 	 Sweeney’s	 petition	 alleged	 that	 a	 letter	 he	 wrote	 to	 the	

Commissioner	 asking	 that	 the	 rule	 be	 rescinded	 and	 that	 the	 Commissioner	

“return	all	funds”	collected	pursuant	to	the	policy	had	gone	unanswered.		The	

petition	sought	as	relief	“to	have	the	policy	in	question,	the	forced	savings	to	be	

declared	unconstitutional	as	it	exceeds	the	statutory	authority	of	the	agency,”	

and	“[t]hat	the	[DOC]	be	ordered	to	return	the	assets	to	the	.	.	.	prisoners.”		In	



     1		Title	34-A	M.R.S.	§	3039	(2017)	provides,	in	part:	“When	any	client	confined	in	a	correctional	or	

detention	facility	receives	money	from	any	source,	including	compensation	for	work[,]	.	.	.	the	money	
must	be	deposited	in	the	department’s	general	client	account	or	.	.	.	in	the	department’s	telephone	
call	account.	.	.	.	The	commissioner	shall	adopt	rules	for	use	of	the	general	client	account.		These	rules	
must	 include	 a	 provision	 allowing	 a	 client	 to	 remove	 that	 client’s	 money	 from	 the	 general	 client	
account	and	place	it	in	any	type	of	investment	outside	the	facility	chosen	by	the	client.”	
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moving	to	dismiss	the	petition	pursuant	to	M.R.	Civ.	P.	12(b),	DOC	recognized	

that	Sweeney	was	challenging	enforcement	of	the	rule	as	being	in	violation	of	

constitutional	and	statutory	provisions,	but	asserted	that	Sweeney	had	written	

directly	 to	 the	 Commissioner	 instead	 of	 filing	 a	 formal	 grievance	 and	 had	

therefore	failed	to	exhaust	his	administrative	remedies.		Sweeney’s	opposition	

to	the	motion	established	that	DOC	was	incorrect	in	its	assertions.		He	had	filed	

a	grievance—before	he	wrote	to	the	Commissioner—that	had	been	dismissed	

as	untimely	by	a	grievance	review	officer	at	the	prison.	

	       [¶4]	 	 The	 court	 held	 a	 hearing	 on	 October	 3,	 2017,	 at	 which	 Sweeney	

appeared	without	counsel.		DOC	acknowledged	that	Sweeney	had	in	fact	filed	a	

grievance,	characterizing	its	dismissal	by	the	grievance	review	officer	as	a	“final	

agency	action.”		DOC	argued	that	the	court	lacked	jurisdiction	because,	whether	

or	not	the	dismissal	of	the	grievance	was	proper,	Sweeney’s	petition,	filed	on	

April	 4,	 2017,	 was	 untimely	 given	 the	 dismissal	 of	 the	 grievance	 on	

January	18,	2017.2		When	addressing	another	prisoner	who	had	filed	a	similar	



    2		DOC’s	argument	was	based	on	M.R.	Civ.	P.	80C(b),	governing	the	timing	of	a	“review	of	final	

agency	action.”		The	Rule	incorporates	a	time	limit	set	out	in	the	Administrative	Procedure	Act:	“The	
petition	for	review	shall	be	filed	within	30	days	after	receipt	of	notice	[of	the	challenged	final	agency	
action].”		5	M.R.S.	§	11002(3)	(2017).		The	time	limits	established	in	the	Act	are	jurisdictional.		Mutty	v.	
Dep’t	of	Corr.,	2017	ME	7,	¶	8,	153	A.3d	775.		DOC	has	since	acknowledged	that	the	trial	court	had	no	
evidence	 of	 when	 Sweeney	 received	 notice	 that	 his	 grievance	 had	 been	 dismissed,	 although	 it	
asserted	at	the	motion	hearing	that	the	filing	of	his	petition	for	judicial	review	was	“clearly	beyond	
the	30	days.”	
4	

petition,	which	was	addressed	simultaneously	with	Sweeney's	petition	at	the	

hearing,	the	court	framed	what	it	viewed	as	the	threshold	timeliness	issue	in	

the	same	way.		It	dismissed	Sweeney’s	petition	without	reaching	the	merits	of	

his	statutory	and	constitutional	arguments,	ruling:	“The	grievance	was	denied.		

And	then	you	didn’t	timely	take	action	to	challenge	that.		And	that’s	where	the	

door	closes	for	me.”	

	     [¶5]		Sweeney	filed	motions	to	reconsider,	for	M.R.	Civ.	P.	60(b)	relief,	and	

to	 amend	 his	 action.	 	 The	 Rule	 60(b)	 motion	 and	 motion	 to	 amend	 stated	

explicitly	 that	 Sweeney	 sought	 to	 convert	 his	 action	 into	 a	 complaint	 for	

declaratory	 judgment.	 	 See	 14	 M.R.S.	 §§	 5951-5963	 (2017);	 M.R.	 Civ.	 P.	 57.		

DOC	opposed	the	motions,	arguing	in	part	that	a	declaratory	judgment	action	

would	be	“futile”	because	Sweeney’s	failure	to	raise	a	timely	challenge	to	the	

dismissal	 of	 his	 grievance	 constituted	 a	 failure	 to	 exhaust	 his	 administrative	

remedies	 and	 deprived	 the	 Superior	 Court	 of	 jurisdiction,	 thus	 subjecting	 a	

prospective	declaratory	judgment	complaint	to	dismissal.		Sweeney’s	response	

directed	 the	 court	 to	 5	M.R.S.	 §	 8058	 (2017),	 which	 provides	 that	 “[j]udicial	

review	of	an	agency	rule	.	.	.	may	be	had	by	any	person	who	is	aggrieved	in	an	

action	for	declaratory	judgment	in	the	Superior	Court.”	
                                                                                              5	

	      [¶6]		The	court	denied	the	motions,	and	Sweeney	timely	appealed.		DOC	

subsequently	moved	us	to	vacate	the	trial	court’s	judgment	and	remand	on	the	

ground	that	the	record	did	not	indicate	the	date	that	Sweeney	received	notice	

of	the	dismissal	of	his	grievance	by	the	grievance	review	officer,	and	therefore,	

on	 the	 authority	 of	 Mutty	 v.	 Department	of	 Corrections,	 2017	 ME	 7,	

153	A.3d	775,	“[t]he	Superior	Court’s	decision	to	dismiss	the	petition	was	not	

supported	by	the	record.”		We	denied	the	motion,	indicating	that	it	was	clear	

Sweeney	was	challenging	the	legality	of	the	DOC	rule	itself,	not	DOC’s	action	in	

denying	his	grievance.	

                                      II.		DISCUSSION	

	      [¶7]		We	consider	in	turn	whether	the	trial	court	should	have	(1)	taken	

Sweeney’s	initial	pleading	as	a	complaint	for	declaratory	judgment	challenging	

the	 legality	 of	 the	 DOC	 rule	 or	 (2)	 granted	 Sweeney’s	 motion	 to	 amend	 his	

action	to	state	a	complaint	for	declaratory	judgment.	

A.	    Initial	Pleading	

	      [¶8]		Pursuant	to	the	Declaratory	Judgments	Act,	“[a]ny	person	.	.	.	whose	

rights,	 status	 or	 other	 legal	 relations	 are	 affected	 by	 a	 statute	 .	 .	 .	 may	 have	

determined	any	question	of	construction	or	validity	arising	under	the	.	.	.	statute	

.	.	.	and	obtain	a	declaration	of	rights,	status	or	other	legal	relations	thereunder.”		
6	

14	M.R.S.	 §	 5954	 (2017).	 	 Specifically	 concerning	 rules	 promulgated	 by	 state	

agencies	 such	 as	 DOC,	 the	 Administrative	 Procedure	 Act	 provides	 that	

“[j]udicial	 review	 of	 an	 agency	 rule	 .	 .	 .	 may	 be	 had	 by	 any	 person	 who	 is	

aggrieved	 in	 an	 action	 for	 declaratory	 judgment	 in	 the	 Superior	 Court	 .	 .	 .	 .	

Insofar	as	the	court	finds	that	a	rule	exceeds	the	rule-making	authority	of	the	

agency	.	.	.	it	shall	declare	the	rule	invalid.”		5	M.R.S.	§	8058(1).	

	        [¶9]	 	 Accordingly,	 “[w]hen	 an	 agency	 enacts	 a	 rule	 pursuant	 to	 its	

rule-making	authority,	persons	aggrieved	thereby	are	entitled	to	challenge	the	

rule	through	a	declaratory	judgment	action.”		Conservation	Law	Found.,	Inc.	v.	

Dept.	of	 Envtl.	 Prot.,	 2003	 ME	 62,	 ¶	 19,	 823	A.2d	551.	 	 That	 is	 the	 case	 here,	

where	Sweeney,	contending	that	DOC	enacted	a	rule	that	violated	34-A	M.R.S.	

§	3039(1)	 by	 denying	 him	 control	 of	 money	 that	 he	 earned,	 petitioned	 the	

Superior	Court	“to	have	the	policy	in	question	.	.	.	declared	unconstitutional	as	

it	exceeds	the	statutory	authority	of	the	agency.”	

	        [¶10]	 	 The	 court,	 however,	 disposed	 of	 Sweeney’s	 petition	 as	 a	

M.R.	Civ.	P.	80C	action,3	dismissing	it	for	lack	of	jurisdiction	after	finding	that	

Sweeney	had	failed	to	timely	challenge	DOC’s	denial	of	his	grievance.		See	Mutty,	

2017	ME	7,	¶	8,	153	A.3d	775	(stating	that	the	time	limit	for	filing	an	appeal	


     3		The	Rule	governs	“[a]	review	of	final	agency	action.”		M.R.	Civ.	P.	80C(a).	

     	
                                                                                                                  7	

from	a	final	agency	action	is	jurisdictional).		That	is	the	correct	analysis	“[w]hen	

an	agency	acts	in	its	adjudicatory	role	and	makes	a	decision	affecting	the	rights,	

duties,	 or	 privileges	 of	 [a]	 specific	 person[],”	 Conservation	 Law	 Found.,	 Inc.,	

2003	 ME	 62,	 ¶	 19,	 823	 A.2d	 551,	 but	 a	 declaratory	 judgment	 action	 is	 the	

appropriate	 vehicle	 when,	 as	 here,	 it	 is	 clear	 from	 the	 pleadings	 that	 the	

challenge	 is	 to	 the	 legality	 of	 the	 rule	 itself	 as	 opposed	 to	 the	 agency’s	

application	of	the	rule,	see	id.4		We	conclude	that,	given	the	allegations	made	

and	the	relief	requested	in	Sweeney’s	petition,	the	court	erred	in	dismissing	it	

for	lack	of	jurisdiction	rather	than	treating	Sweeney’s	pleading	as	a	complaint	

for	declaratory	judgment.		See	Mutty,	2017	ME	7,	¶	9,	153	A.3d	775	(“We	review	

de	novo	.	.	.	a	dismissal	for	lack	of	jurisdiction.”).	

B.	     Motion	to	Amend	

	       [¶11]	 	 In	 his	 motions	 to	 amend	 and	 for	 Rule	 60(b)	 relief	 following	 the	

dismissal	of	his	initial	petition,	Sweeney	explicitly	asked	the	court	to	treat	the	




     4		See	Capodilupo	v.	Town	of	Bristol,	1999	ME	96,	¶	4,	730	A.2d	1257	(stating	in	a	tax	assessment	

case	that	“[a]	declaratory	judgment	action	is	a	proper	means	to	obtain	a	remedy	when	an	entire	tax	
assessment	is	void	(e.g.,	the	tax	itself	is	unlawful	or	the	taxing	authority	is	invalid)”;	Summit	Realty,	Inc.	
v.	 Gipe,	 315	 A.2d	 428,	 430	 n.2	 (Me.	 1974)	 (“[T]he	 failure	 of	 the	 plaintiff	 to	 follow	 the	 procedural	
mandates	of	Rule	80B	does	not	necessarily	deprive	the	[c]ourt	of	the	right	to	grant	equitable	relief,	
since	 the	 complaint	 may	 be	 considered	 as	 one	 for	 declaratory	 judgment.”);	 Katz	 v.	 Johnson,	
220	A.2d	495,	 499	 (Me.	 1966)	 (stating	 that	 the	 Law	 Court	 would	 “cut	 through	 the	 titles	 of	 the	
complaint	and	judgment”	to	determine	the	true	nature	of	the	plaintiff’s	appeal),	overruled	on	other	
grounds	by	Katz	v.	State	Tax	Assessor,	472	A.2d	428,	431	(Me.	1984).	
8	

petition	 as	 a	 complaint	 for	 declaratory	 judgment.	 	 The	 court	 found	 that	

“[Sweeney]	has	not	presented	a	valid	ground	for	relief”	and	denied	the	motions.	

	     [¶12]	 	 As	 a	 general	 matter,	 permission	 to	 amend	 a	 complaint	 “shall	 be	

freely	given	when	justice	so	requires.”		M.R.	Civ.	P.	15(a).		Sweeney	originally	

brought	his	petition	pursuant	to	M.R.	Civ.	P.	80B,	which	provides	that	“[l]eave	

to	amend	pleadings	shall	be	freely	given	when	necessary	to	permit	a	proceeding	

erroneously	commenced	under	this	rule	to	be	carried	on	as	an	ordinary	civil	

action,”	i.e.,	a	declaratory	judgment	action.		M.R.	Civ.	P.	80B(a).	

	     [¶13]		“We	review	the	denial	of	a	motion	for	leave	to	amend	for	an	abuse	

of	discretion.”		Paul	v.	Town	of	Liberty,	2016	ME	173,	¶	9,	151	A.3d	924.		“On	

appeal,	a	party	who	was	denied	leave	to	amend	must	demonstrate	(1)	that	the	

court	clearly	and	manifestly	abused	its	discretion	and	(2)	that	the	amendment	

was	necessary	to	prevent	injustice.”		Id.	(quotation	marks	omitted).		In	many	

cases,	if	not	most,	a	party	seeking	to	redeem	an	unsuccessful	Rule	80B	or	80C	

action	by	simply	recasting	it	 as	a	complaint	for	declaratory	judgment	will	be	

unable	to	meet	that	burden.		Here,	however,	given	Sweeney’s	clear	challenge	to	

the	 legality	 of	 the	 DOC	 rule	 itself	 and	 not	 its	 application	 to	 his	 individual	

circumstances,	we	conclude	that	the	court	abused	its	discretion	in	declining	to	
                                                                                  9	

allow	Sweeney	to	amend	his	complaint	and	seek	relief	through	a	declaratory	

judgment	action.	

         The	entry	is:	

                            Judgment	vacated.		Remanded	with	instructions	
                            to	 grant	 Sweeney’s	 motion	 to	 amend	 to	 allow	
                            him	 to	 bring	 his	 action	 as	 a	 complaint	 for	
                            declaratory	judgment.	
	
	     	      	      	    	    	
	
Gary	Sweeney,	appellant	pro	se	
	
Janet	T.	Mills,	Attorney	General,	and	James	E.	Fortin,	Asst.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellee	Department	of	Corrections	
	
	
Knox	County	Superior	Court	docket	number	AP-2017-11	
FOR	CLERK	REFERENCE	ONLY	
