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Wool v. Menard

Supreme Court of Vermont

September 9, 2017

Kirk Wool
v.
Lisa Menard, Commissioner, Vermont Department of Corrections

         On Appeal from Superior Court, Washington Unit, Civil Division Mary Miles Teachout, J.

          Kirk Wool, Pro Se, Baldwin, Michigan, 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., Skoglund, Robinson, Eaton and Carroll, JJ.

          REIBER, C.J.

         ¶ 1. Plaintiff Kirk Wool is an inmate in the custody of the Vermont Department of Corrections (DOC). He appeals the dismissal of his claim that DOC and its Commissioner violated a statutory obligation to negotiate and award a contract to provide telephone services to inmates in state correctional facilities in a manner that provides for the lowest reasonable cost to inmates. We affirm the trial court's dismissal of plaintiff's claim for money damages, but reverse the dismissal of plaintiff's claim for mandamus relief and remand for further proceedings.

         ¶ 2. In June 2016, plaintiff filed a complaint against defendants in the civil division. He alleged that for the past several years, DOC had violated 28 V.S.A. § 802a(d) and Vermont law by failing to use a competitive process to obtain telephone services for inmates. Instead, he alleged, DOC had purchased telephone services from the only company from which it sought a bid. Plaintiff alleged that under "Vermont law, " such "sole source" contracts may only be used in "extraordinary circumstances, " which did not exist here. According to plaintiff, the company with which DOC contracted charged approximately $8.00 per hour for a telephone call, while competing firms offered rates closer to $3.00 per hour. He argued that DOC had not negotiated and awarded the contract in a manner that provided for the lowest reasonable costs to inmates, as required by § 802a(d), which states that "[a]ny contract to provide telephone services to inmates in state correctional facilities shall be negotiated and awarded in a manner that provides for the lowest reasonable cost to inmates, to their families, and to others communicating with inmates." Plaintiff sought damages equivalent to the difference between the current rates and the lower rates he alleged would be offered by other contractors for calls he had placed.[1]

         ¶ 3. Defendants moved to dismiss plaintiff's claim. Defendants argued that plaintiff lacked standing to challenge the contract because he was not an intended third-party beneficiary of the contract. They further argued that plaintiff's claim for damages was barred by sovereign immunity because it was based upon defendants' performance of a discretionary function and did not have a private analog. Plaintiff opposed the motion to dismiss, arguing that § 802a(d) limited DOC's discretion. He also filed a claim for a writ of mandamus, asserting that DOC had a nondiscretionary duty to provide telephone services at the lowest reasonable costs to inmates.[2]

         ¶ 4. The trial court ruled that plaintiff's damages claim was barred by the State's sovereign immunity. It held that plaintiff's claim for relief in the nature of mandamus also failed because plaintiff did not seek enforcement of a purely ministerial act. The court therefore dismissed plaintiff's claims.

         ¶ 5. On appeal, plaintiff argues that the trial court erred in dismissing his claims for damages and mandamus relief. Although his brief is not a model of clarity, we understand his argument to be that DOC had a nondiscretionary duty to negotiate and award the telephone services contract in a manner that led to the lowest reasonable costs for inmates, specifically by using a competitive bidding process to select the contractor, and that DOC violated this duty. He seeks damages and an order compelling DOC to reopen the bidding process.

         ¶ 6. We review the trial court's determination of a motion to dismiss de novo, accepting as true all allegations made by the non-moving party. Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040; In re Estate of Holbrook, 2016 VT 13, ¶ 14, 201 Vt. 254, 140 A.3d 788. "Motions to dismiss for failure to state a claim are disfavored and should be rarely granted." Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). A court should not grant a motion to dismiss for failure to state a claim "unless it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997) (quotation omitted).

          I. Damages Claim

         ¶ 7. We first consider whether the trial court properly dismissed plaintiff's damages claim. We conclude that plaintiff failed to demonstrate that the State waived its sovereign immunity such that he may obtain money damages for the alleged violation of § 802a(d), and affirm the trial court's ruling on this issue.

         ¶ 8. Sovereign immunity protects the State and its components from liability for money damages unless immunity is waived by statute. Jacobs v. State Teachers' Ret. Sys. of Vt., 174 Vt. 404, 408, 816 A.2d 517, 521 (2002). "[I]f a statute is silent regarding a waiver of sovereign immunity, then no such waiver exists." Depot Square Pizzeria, LLC v. Dep't of Taxes, 2017 VT 29, ¶ 5, Vt., 169 A.3d 204. The statute at issue here, 28 V.S.A. ยง 802a, does not provide for an aggrieved party to obtain money damages in such an action. It therefore does not provide an avenue for plaintiff to obtain ...


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