Leo P. Pratt, III
Andrew Pallito, Commissioner, Department of Corrections
Appeal from Superior Court, Washington Unit, Civil Division
Timothy B. Tomasi, J.
Timothy B. Tomasi, J. Matthew Valerio, Defender General, and
Kelly Green, Prisoners' Rights Office, Montpelier, for
William H. Sorrell, Attorney General, and Benjamin D.
Battles, Assistant Attorney General, Montpelier, and Robert
C. Menzel, Jr., Assistant Attorney General, Waterbury, for
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. The central question in this appeal is whether a
petitioner can raise in the trial court a challenge to a
Department of Corrections' (DOC) disciplinary conviction
that was not presented in the underlying DOC proceedings.
Petitioner appeals the trial court's dismissal of his
Vermont Rule of Civil Procedure 75 appeal of a DOC
disciplinary determination. Because petitioner did not
preserve before the DOC the issue he raised for the first
time before the trial court, we affirm.
2. The record reflects the following. Petitioner was
incarcerated and in the custody of the DOC, and was housed in
a single-bed room in the prison's infirmary. A
correctional officer alleged that he instructed petitioner to
move from his room to a multi-bed room in the infirmary in
order to free up the single-bed room. Petitioner refused and
said he would not move. The officer ordered petitioner to
move a second time, and petitioner refused again. The officer
gave the order a third time and advised petitioner that he
would be cited for a disciplinary violation if he did not
comply. Petitioner, however, again refused to follow the
order. The officer filed an incident report and cited
petitioner with a rule violation.
3. The DOC follows detailed administrative procedures after
an inmate is charged with violating a rule. First, a hearing
officer holds a hearing on the alleged rule violation. The
hearing officer reviews all available evidence, and may find
the inmate guilty of the violation, guilty of a lesser or
equal violation, or not guilty of any violation. The hearing
officer imposes a sanction if the officer finds the inmate
guilty of a violation by a preponderance of the evidence.
Vermont Department of Corrections Directive 410.01, Facility
Rules and Inmate Discipline 11-12 [hereinafter Facility Rules
and Inmate Discipline], http://www.doc.state.vt.us/about/
[https://perma.cc/4WZ6-3JH6]. Next, the hearing officer
submits a Hearing Report Form to the Disciplinary Committee.
The Committee reviews the officer's decision to determine
whether the charges are supported by a preponderance of the
evidence, whether there was compliance with DOC policies, and
whether the sanction was proportionate to the violation. The
Committee then forwards its decision to the Superintendent.
The Superintendent may affirm the Committee's decision,
reverse the decision, order a new hearing, or modify the
proposed sanction. He or she then forwards the decision to
the inmate. Id. at 14.
4. The prisoner may file a written appeal with the
Superintendent within seven days of receiving the final
decision. The policy provides that "[t]he Superintendent
will specifically address all appeal issues raised by the
inmate in the appeal, " and may deny the prisoner's
requested relief or "direct any other appropriate
5. The DOC charged petitioner with violating rule Major B-16,
which prohibits "[c]onduct, which disrupts or interferes
with inmate safety, security, or the orderly running of the
facility." Id. at 20. The rule provides that
it is "[o]nly to be used if another Major 'B'
violation is not applicable." Id. The hearing
officer made findings of fact, including that "[y]ou
refused multiple direct orders from staff to move from a
single cell in the infirmary to a ward, " and
"[y]our actions of refusing to move interfered with the
orderly running of the facility causing an officer to take
time from his normal duties to be present for your continued
refusals to move." The hearing officer found petitioner
guilty of violating rule Major B-16 and recommended four days
of disciplinary segregation, with credit for time petitioner
had already spent in segregation for the violation. The
Disciplinary Committee, and subsequently the Superintendent,
upheld the hearing officer's decision.
6. Petitioner appealed his disciplinary conviction to the
Superintendent, arguing that the disciplinary hearing was
untimely under DOC policy. The Superintendent rejected
petitioner's argument and upheld the conviction.
Petitioner then filed a petition in the trial court for
review of government action under V.R.C.P. 75, in which he
again argued that the conviction should be reversed because
the hearing was untimely. After petitioner filed this
petition, counsel entered an appearance for petitioner and
filed an amended petition. The only issue raised in the
amended petition was that the DOC did not have sufficient
evidence to convict petitioner of the rule violation.
7. Petitioner then moved for summary judgment. Petitioner
argued that Major B-16 may be used only if another rule does
not apply, and another rule applied in this case-Major
B-14-which prohibits "any disobedience or refusal of an
officer's instruction or order that threatens or disrupts
institutional security or interferes with the taking of an
official institutional headcount." Id. at 20.
The DOC also moved for summary judgment, arguing that there
was sufficient evidence to support the DOC's conclusion
that petitioner violated Major B-16. The trial court denied
both parties' motions for summary judgment, concluding
that there were material facts in dispute regarding whether
petitioner violated Major B-14 and therefore whether the
application of Major B-16 was appropriate.
8. Next, the DOC filed a motion to dismiss, arguing that the
trial court lacked subject matter jurisdiction to hear the
case because petitioner failed to exhaust all administrative
remedies before filing in the court. The DOC contended that
petitioner appealed only the issue of timeliness to the
Superintendent, and that the issue of whether petitioner
could have been convicted of a different rule was raised for
the first time on appeal to the trial court, so petitioner
did not exhaust his administrative remedies. The trial court
granted the DOC's motion, determining that petitioner did
fail to exhaust all administrative remedies. The court
concluded that exhaustion requires petitioner to submit all
claims of error to the DOC before the issues may be heard by
the trial court. Petitioner appealed.
9. Petitioner argues that he exhausted his administrative
remedies because he followed all DOC processes relating to
the appeals of disciplinary convictions. He contends that the
issue here is one of preservation, and not exhaustion. To the
extent that he failed to preserve the argument he now relies
upon, he argues on several grounds that his nonpreservation
should not defeat review of the argument by the trial court.
The DOC argues that exhaustion ...