Appeal from Superior Court, Washington Unit, Civil Division,
Mary Miles Teachout, J
Jeffrey Michael Brandt, Pro Se, Tutwiler, Mississippi,
Michael J. Leddy of McNeil, Leddy & Sheahan, P.C.,
Burlington, for Defendant-Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Plaintiff is an inmate in the custody of the Vermont
Department of Corrections (DOC). He filed this action seeking
declaratory and injunctive relief prohibiting defendants (DOC
officials) from interfering with his mail correspondence. The
parties had previously entered into a Stipulation and
Agreement of Dismissal (the Stipulation) in which DOC agreed
not to prohibit plaintiff's correspondence with other
inmates not in the custody of DOC on the basis that this
would violate 28 V.S.A. § 802 and VTDOC Directive 409.5.
However, plaintiff was prevented from corresponding with an
inmate in another jurisdiction's custody when he was
housed in a state-run Pennsylvania facility, subject to the
Interstate Corrections Compact (ICC). The trial court denied
plaintiff's motion seeking to be transferred to a non-ICC
facility where the Stipulation would be enforced. Yet, during
this appeal defendants transferred plaintiff to a non- ICC
facility in Mississippi. We remand for a hearing to determine
whether plaintiff's mail-correspondence privileges are
currently restricted in Mississippi, and, if so, to what
extent and on what basis they have been restricted.
2. Under the Stipulation, defendants agreed not to
"prohibit communication between plaintiff and any inmate
who is not committed to the care and custody of [DOC] on the
basis that said communication constitutes an inmate-to-inmate
correspondence, as set forth in 28 V.S.A. §
802(c) and VTDOC Policy Directive
409.05." In return, plaintiff originally
voluntarily dismissed this case.
3. After entering the Stipulation, DOC transferred plaintiff
to a state-run facility in Pennsylvania. Vermont and
Pennsylvania are members of the ICC. The ICC allows
Pennsylvania to apply its own inmate-correspondence policy.
28 V.S.A. § 1604(e); Daye v. State, 171 Vt.
475, 481-82, 769 A.2d 630, 635-36 (2000). Applying
Pennsylvania corrections policy, Pennsylvania officials
restricted plaintiff's inmate-to-inmate correspondence.
As a result, the trial court granted plaintiff the right to
"reopen the case to pursue post-judgment enforcement of
4. Plaintiff filed a motion seeking to compel DOC to transfer
him back to Vermont, enforce the Stipulation, and hold
defendants in contempt. The trial court denied this motion.
The court concluded-and it was undisputed below-that
Pennsylvania inmate-correspondence policy applied to
plaintiff because Pennsylvania state-run prisons are subject
to the ICC. The court also held that the Stipulation
"did not establish a right that overrides the DOC's
authority to transfer [plaintiff] to a place of confinement
in a different facility in a Compact state, where different
rules would apply."
5. "A case becomes moot-and this Court loses
jurisdiction-when there no longer is an actual controversy or
the litigants no longer have a legally cognizable interest in
the outcome of the case." Paige v. State, 2017
VT 54, ¶ 7, 205 Vt. 287, 171 A.3d 1011. Changes in
facts- even on appeal-can render a case moot. Houston v.
Town of Waitsfield, 2007 VT 135, ¶ 5, 183 Vt. 543,
944 A.2d 260.
6. During the pendency of this appeal, DOC transferred
plaintiff to a private corrections facility in Mississippi.
This facility is not subject to the ICC. The purpose of
plaintiff's post-judgment motion-and this appeal-was to
require DOC to transfer him to a non-ICC facility where the
Stipulation would be enforced. See Paige, 2017 VT
54, ¶ 8 (holding case moot where "the entire
purpose of appellant's case was to prevent the inclusion
of Senators [Cruz and Rubio] on the  primary
ballot" and, on appellate review, general election
already completed). Plaintiff has now been transferred to a
non-ICC facility and defendant agrees that the ICC allows the
facility to apply Vermont's rules regarding inmate
correspondence to him.
7. Now that plaintiff has been transferred to a non-ICC
facility, it is undisputed that plaintiff cannot be
prohibited from sending or receiving mail correspondence with
out-of-state inmates on the basis of 28 V.S.A. § 802 and
VTDOC Directive 409.05. Although there is no legal dispute as
to the enforceability of the Stipulation, there is a dispute
of fact as to whether defendants have abided by the terms of
the Stipulation at the Mississippi facility. At oral
argument, defendants stated through counsel that they had no
information that plaintiff's mail had been restricted in
Mississippi. Plaintiff stated, to the contrary, that
his mail with inmates housed at other institutions had been
returned to him and that staff at the Mississippi facility
have ignored his written complaints.
8. The trial court is better equipped than this Court to
resolve issues of disputed fact. See Hopkinton Scout
Leaders Ass'n v. Town of Guilford, 2004 VT 2, ¶
12, 176 Vt. 577, 844 A.2d 753 (mem.) (remanding, despite
stipulation to facts on appeal, because of need for
"better developed factual record"). We therefore
remand for a hearing on whether and to what extent prison
officials have curtailed plaintiff's mail correspondence
now that he is housed in Mississippi, and what the basis is
for any such restrictions. If the trial court concludes that
defendants are not invoking 28 V.S.A. § 802(c) or VTDOC
Policy Directive 409.05 to prohibit plaintiff's mail
correspondence with any inmate committed to the care and
custody of a department of corrections other than DOC, then
plaintiff's post-judgment motion is moot.
9. On appeal plaintiff has sought to rescind the Stipulation
and vacate the voluntary dismissal, arguing that defendants
transferred him to a jurisdiction-an ICC prison in
Pennsylvania-that they "knew would violate the terms of
the [Stipulation]." Plaintiff did not raise this
argument in the trial court, so we do not consider it.
Brown v. State, 2018 VT 1, ¶ 25, 206 Vt. 394,