Pratt v. Pallito

         On 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 Plaintiff-Appellant.

          William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, and Robert C. Menzel, Jr., Assistant Attorney General, Waterbury, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          ROBINSON, JUDGE

         ¶ 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/ policies/rpd/correctional-services-301-550/401-500-programs-security-and-supervision/410-01-facility-rules-and-inmate-discipline.pdf [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 action." Id.

         ¶ 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."^[1] 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 ...