Appeal from Superior Court, Orleans Unit, Civil Division A.
Gregory Rainville, J.
Clark, Pro Se, Newport, 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. Petitioner appeals pro se from the dismissal of his
complaint regarding his eligibility for prison work camp. The
trial court concluded that it lacked authority to review this
Department of Corrections (DOC) programming decision. We
agree and affirm.
2. Petitioner is an inmate under the custody and control of
the DOC. He pled guilty to driving under the influence,
fourth offense, in July 2016 pursuant to a plea agreement.
The plea agreement included a "recommendation to work
camp." The DOC subsequently deemed petitioner ineligible
for work camp because petitioner had an earlier conviction
that involved a violent assault against a law enforcement
officer. Petitioner grieved this decision within the DOC, and
his grievances were denied.
3. In January 2017, petitioner filed a complaint under
Vermont Rule of Civil Procedure 75 against the DOC
Commissioner, challenging the DOC's eligibility decision.
Petitioner noted that he was recommended to work camp as part
of his plea agreement and that he was incarcerated for a
nonviolent offense. He argued that he should not continue to
suffer the consequences from his earlier assault conviction.
Petitioner also asserted that the DOC's decision was
unfair because another prisoner, who had been convicted of
bank robbery, was participating in work camp.
4. The State moved to dismiss petitioner's complaint for
lack of subject matter jurisdiction. It argued that work camp
was a DOC program and the DOC's programming decisions
were not subject to judicial review. See Rheaume v.
Pallito, 2011 VT 72, ¶ 11, 190 Vt. 245, 30 A.3d
1263 (holding that "promulgation of programming
requirements falls within the broad discretion of the DOC to
determine what mode of treatment best serves individual
inmates," and "[n]othing in the statutes limits
that discretion"); Charbonneau v. Gorczyk, 2003
VT 105, ¶ 6, 176 Vt. 140, 838 A.2d 117 (explaining that
work camp is DOC program that provides "rehabilitation
through community service"). The court agreed with the
State and granted its motion to dismiss. This appeal
5. We review the trial court's dismissal for lack of
subject matter jurisdiction "de novo, with all
uncontroverted factual allegations of the complaint accepted
as true and construed in the light most favorable to the
nonmoving party." Rheaume, 2011 VT 72, ¶
2. We agree with the trial court that dismissal was
appropriate because the DOC's work-camp eligibility
determination is a nonreviewable programming
6. Petitioner contends that the DOC's decision violated
his equal protection rights. We have recognized that a
petitioner's constitutional claims are reviewable under
Rule 75, and "[t]he fact that a colorable constitutional
claim implicates a programming decision committed to the
DOC's discretion does not insulate the alleged
constitutional violation from judicial review." In
re Girouard, 2014 VT 75, ¶ 12, 197 Vt. 162, 102
A.3d 1079. In this case, however, petitioner waived his
constitutional argument by failing to raise it with
specificity below. See State v. Ovitt, 2005 VT 74,
¶ 13, 178 Vt. 605, 878 A.2d 314 (mem.) ("An issue
is not preserved for appeal unless a party raises it with
specificity and clarity below, thereby ensuring that the
trial court will have an opportunity to fully develop the
relevant facts and to reach considered legal
conclusions."). Petitioner did not mention the Equal
Protection Clause below. Instead, he asserted that it was
unfair that someone convicted of bank robbery was eligible
for work camp while he was not. This was insufficient to
preserve the constitutional claim petitioner now raises on
appeal. See State v. Ben-Mont Corp., 163 Vt. 53, 61,
652 A.2d 1004, 1009 (1994) (concluding that single mention of
"fairness" in brief was insufficient to preserve
due process challenge for appeal).
7. Petitioner next asserts that he was promised placement in
work camp as part of his plea agreement. According to
petitioner, this promise created a liberty interest in
participating in work camp and receiving the good time
credits associated with work camp, and he was deprived of
this interest without due process. Petitioner cites
Sandin v. Conner in support of his argument. 515
U.S. 472 (1995). The Sandin Court held that
"States may under certain circumstances create liberty
interests which are protected by the Due Process
Clause," but such interests are "generally limited
to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life." Id. at 483-84 (citations omitted).
Petitioner asserts that, given the terms of his plea
agreement, DOC had to find him eligible for work
8. At the outset, we reject the premise of petitioner's
argument. Petitioner's plea agreement does not contain
any promise that he would be deemed eligible for work camp,
nor would the court be in any position to make such promise.
It contains only a "recommendation" for work camp,
not a guarantee, assuming arguendo that such a guarantee
could be made. We discern no "liberty interest"
that petitioner acquired in work camp through his plea
agreement or otherwise. See Conway v. Gorczyk, 171
Vt. 374, 376-79, 765 A.2d 463, 465-67 (2000) (concluding that
inmate has no liberty interest in participating in
rehabilitative programs that may result in sentence
9. Our case law makes clear that it is for the DOC to assess
petitioner's eligibility for work camp. We held in
Rheaume that "particular programming
requirements . . . are a matter of DOC discretion and as such
are nonreviewable under Rule 75." 2011 VT 72, ¶ 11.
Work camp is a DOC program "whose mission is
rehabilitation through community service"; the program
enables inmates to "reduc[e] their sentences at a faster
rate than inmates at other facilities."
Charbonneau, 2003 VT 105, ¶ 6. The DOC has
discretion in administering the work camp program, and ...