Appeal from Superior Court, Washington Unit, Civil Division
Mary Miles Teachout, J.
Wool, Pro Se, Baldwin, Michigan, Plaintiff-Appellant.
J. Donovan, Jr., Attorney General, Montpelier, and Robert C.
Menzel, Jr., Assistant Attorney General, Waterbury, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
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.
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.
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
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).
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. § 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