Rose v. Touchette
| Decision Date | 08 October 2021 |
| Docket Number | 2020-274 |
| Citation | 2021 VT 77 |
| Court | Vermont Supreme Court |
| Parties | Zachary Rose v. Michael Touchette, Commissioner, Department of Corrections et al. |
On Appeal from Superior Court, Chittenden Unit, Civil Division Helen M. Toor, J.
Matthew F. Valerio, Defender General, and Annie Manhardt Prisoners' Rights Office, Montpelier, for Plaintiff-Appellant.
Thomas J. Donovan, Jr., Attorney General, Montpelier, and Robert C Menzel, Jr., Assistant Attorney General, Waterbury, for Defendant-Appellee.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. Plaintiff Zachary Rose challenges the decision of the Vermont Department of Corrections (DOC) to terminate him from treatment programming without a hearing. He argues that his program termination constituted punishment under 28 V.S.A. § 851 and therefore required a hearing and due process under § 852. The superior court granted summary judgment to DOC, concluding that the termination was not punishment and that plaintiff's claim was not reviewable under Vermont Rule of Civil Procedure 75. We conclude that DOC's decision is reviewable, but on this record, neither party is entitled to summary judgment. Accordingly, we reverse and remand.
¶ 2. The following facts are drawn from the statement of undisputed facts submitted by plaintiff in connection with his motion for summary judgment.[1] Plaintiff is currently an inmate under the custody and control of DOC. In 2018, plaintiff enrolled in the Vermont Treatment Program for Sexual Abusers at Northwest State Correctional Facility. Plaintiff must complete the program to be eligible for release before the end of his maximum sentence. During a class session in February 2019, when asked to commit to and follow through with something before the next session, plaintiff turned to a classmate and whispered, "escape." Plaintiff later explained that he was only joking and had no intent to escape.
¶ 3. A program staff member heard the comment and reported it to prison officials. Northwest State Superintendent Greg Hale ordered that plaintiff be placed in administrative segregation pending an investigation of the incident. Plaintiff was served notice of an administrative segregation hearing, but a few days later, he was returned to general population.
¶ 4. Plaintiff then received a Notice of Corrective Action Plan and Removal. The notice pointed to several program infractions, including being late to group, not completing practice work, misusing group bathroom breaks, and expressing complaints in a non-constructive manner, as well as the escape comment. Because of his "behavior and statements," Northwest State security officials determined that plaintiff posed a security risk. Consequently, he was unable to access the facility's programming units and was terminated from the program. The notice stated that once plaintiff was no longer deemed a security risk, he could re-apply for the program. As a result of his removal, plaintiff's caseworker added six months to his projected release date. Plaintiff never received a disciplinary report related to his escape comment.
¶ 5. Shortly thereafter, plaintiff received a program termination letter and was transferred to the Northern State Correctional Facility, where he was placed in general population. Upon intake at Northern State, plaintiff received a Conviction Violation Summary (CVS) score of 3 or "minimum." This score is used to assign a custody level to inmates of minimum, medium, or close. Vermont Department of Corrections Directive 371.04, Custody/Security Assignment in a Correctional Facility [hereinafter Directive 371.04], https://doc.vermont.gov/sites/correct/files/ documents/policy/correctional/371.04-Security-and-Custody-Assignment.pdf [https://perma.cc/ L9BN-AWTV]. Plaintiff's CVS score was based on his institutional behavior, including his risk of escape. See id.
¶ 6. Plaintiff submitted an informal complaint seeking to be allowed back into the program. He contended that he had not been found guilty in the investigation following his escape comment and that his placement in minimum security at Northern State showed that he was not considered to pose a security threat. He then filed a formal grievance raising the same issue. The investigating officer reviewed plaintiff's security designation and recommended that his grievance be denied because there was already a plan in place to review plaintiff's designation one year from the date on which he was deemed a security risk.
¶ 7. Plaintiff appealed the decision to the facilities executive. He filed an additional grievance about a week later, contending that being reviewed one year after his security designation was excessive. Again, based on the one-year review plan, the investigating officer recommended plaintiff's grievance be denied. Plaintiff then appealed the decision to the DOC Commissioner on July 12.
¶ 8. The facilities executive denied plaintiff's appeal, explaining that plaintiff was removed for "not following multiple [program] expectations" and because of his "security designation for mentioning escape," noting that plaintiff's "actions and comments impacted [his] presence in that part of the institution." Likewise, the Commissioner denied plaintiff's appeal because plaintiff's access to the program units was restricted "due to security concerns after [plaintiff] had mentioned escape," which was "a clear threat to the safety and security of the institution." The Commissioner encouraged plaintiff to return to the program when he became eligible.
¶ 9. Plaintiff filed this appeal for review of governmental action under Civil Rule 75 in the superior court, contending that DOC's decision to remove him from programming was punishment for his escape comment and thus he was entitled to the statutory due process protections under 28 V.S.A. §§ 851-853. Both parties moved for summary judgment.
¶ 10. The superior court granted summary judgment to DOC. The court held that plaintiff's termination from the program did not constitute punishment within the meaning of 28 V.S.A. § 851. The court explained that to determine whether an action was punishment, this Court adopted a test articulated by the United States Supreme Court. See Conway v. Cumming, 161 Vt. 113, 119, 636 A.2d 735, 738 (1993) (adopting test outlined in Bell v. Wolfish, 441 U.S. 520, 538-39 (1979)). Looking to Conway, the court determined that this Court established two prerequisites to the Bell punishment analysis: (1) the alleged punishment must implicate some liberty interest, and (2) the punishment must involve something more than incarceration pursuant to the lawfully imposed sentence. See id. The court reasoned that here, plaintiff failed to establish either prerequisite. The court also distinguished plaintiff's claim from another punishment case, Borden v. Hofmann, because that case did not involve a programming decision. 2009 VT 30, 185 Vt. 486, 974 A.2d 1249. Instead, the court explained that programming decisions are left to DOC's discretion, and thus concluded that DOC's decision to remove plaintiff from programming without bringing a formal disciplinary proceeding was not an "extreme, arbitrary abuse of administrative discretion" warranting Rule 75 review.
¶ 11. On appeal, plaintiff argues the trial court incorrectly concluded that his claim was not reviewable under Rule 75. He contends that Rule 75 review is appropriate because DOC failed to comply with its legal duty to grant him a hearing and formal finding under 28 V.S.A. §§ 851-853 before punishing him. Further, plaintiff challenges the trial court's application of the constitutional due process "prerequisites" from Conway, arguing that the proper inquiry is limited to the test set forth in Bell, 441 U.S. at 538-39. Under this test, plaintiff contends that DOC's decision constituted punishment because, in deeming him a security risk and terminating him from the program, it intended to punish him for joking about escape.
¶ 12. We review summary judgment decisions de novo, applying the same standard as the trial court. In re Barrows, 2007 VT 9, ¶ 5, 181 Vt. 283, 917 A.2d 490. Summary judgment is appropriate if the moving party demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. V.R.C.P. 56(a). "In applying this standard, we regard as true all allegations of the nonmoving party supported by admissible evidence and give the nonmoving party the benefit of all reasonable doubts and inferences." King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt. 220, 825 A.2d 16.
¶ 13. We begin by addressing whether jurisdiction exists under Rule 75. Rule 75 provides for review of "action or failure or refusal to act by an agency of the state or a political subdivision thereof, including any department board, commission, or officer, that is not reviewable or appealable under Rule 74." V.R.C.P. 75(a). Rule 75 does not explain which decisions are reviewable but "provides a procedure applicable whenever county court review . . . is available as a matter of general law by proceedings in the nature of certiorari, mandamus, or prohibition." Reporter's Notes, V.R.C.P. 75. Mandamus review is available for allegedly arbitrary abuses of discretion that "amount to a practical refusal to perform a 'certain and clear' legal duty." Inman v. Pallito, 2013 VT 94, ¶ 15, 195 Vt. 218, 87 A.3d 449.
¶ 14. DOC contends that the court lacked jurisdiction to consider plaintiff's claim because programming decisions are not reviewable under Rule 75. See Inman, 2013 VT 94, ¶ 18 (...
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