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Ingerson v. Pallito

Supreme Court of Vermont

June 7, 2019

James Ingerson
v.
Andrew Pallito, Commissioner, Vermont Department of Corrections and Leanne Salls

          On Appeal from Superior Court, Windsor Unit, Civil Division Robert P. Gerety, Jr., J.

          Daniel D. McCabe of Adler & McCabe, PLC, St. Johnsbury, for Plaintiff-Appellant.

          Thomas J. Donovan, Jr., Attorney General, and David R. Groff, Assistant Attorney General, Montpelier, for Defendant-Appellee.

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

          EATON, J.

         ¶ 1. Plaintiff-appellant, James Ingerson, sued the Department of Corrections (DOC) for negligence in investigating allegations that plaintiff was being sexually exploited by a DOC employee while he was an inmate at a DOC correctional facility. The trial court granted summary judgment to the State, holding that plaintiff's claim was barred by the discretionary function exception to the Vermont Tort Claims Act (VTCA), 12 V.S.A. § 5601(e)(1). Plaintiff appealed the summary judgment ruling to this Court. We affirm.

         ¶ 2. The undisputed facts taken in the light most favorable to plaintiff are as follows. During the spring of 2011, plaintiff was incarcerated and housed in Echo Unit at the Southeast State Correctional Facility (SESCF). Leanne Salls worked as a correctional officer (CO) at the same facility and was assigned to one or two shifts per week in the Echo Unit. Under Vermont law, sexual activity between an inmate and a supervising officer, such as a CO, is illegal and constitutes criminal conduct by the supervising officer. 13 V.S.A. § 3257 (criminalizing sexual exploitation of inmates). Both parties agree that in April or May 2011, Salls began sexually exploiting plaintiff.[1] Salls and plaintiff state that sexual intercourse occurred several times in the staff bathroom of Echo Unit. Plaintiff confirms that he knew Salls's actions violated prison rules, but he never reported any inappropriate conduct to DOC employees or officials.

         ¶ 3. In late May 2011, DOC supervisors at the facility began receiving reports of boundary violations regarding plaintiff and Salls, including reports that plaintiff and Salls spent an inappropriate amount of time talking to each other and sitting together at meals. In response to the May reports, two supervisors met with Salls on June 3, 2011. During the meeting, Salls was reminded of work rules prohibiting inappropriate conduct, and she denied any inappropriate conduct was occurring with plaintiff. Supervisors instructed Salls to avoid excessive contact with plaintiff. From June 3 until June 12, 2011, supervisors continued to observe inappropriate interactions between Salls and plaintiff, and they referred the matter to the Department of Human Resources (DHR) for investigation. Specifically, the reports, which were documented in emails between the staff, indicated that Salls volunteered to work overtime but said she would only do so if she could work in Echo Unit, and that while Salls was working the overtime shift in Echo Unit, she and plaintiff spent a significant amount of time together-either standing at Salls's desk after lock in, which is a rule violation, or in unmonitored areas in the facility cameras' blind spots.

         ¶ 4. In response to these reports, DHR notified Salls to appear for an interview on June 21. During the interview with DHR, Salls denied that she was sexually exploiting plaintiff; she later admitted this was a lie. DHR investigators also interviewed plaintiff on June 21. Plaintiff told the investigators, "There's no sexual relationship whatsoever going on between me and Ms. Salls." Plaintiff later acknowledged that he lied several times during the interview in a deliberate effort to hide the ongoing sexual interactions between Salls and him, stating that he "tried to hide it" and that he "lied to everybody during this whole process." Plaintiff does not dispute that he hid Salls's misconduct from DOC staff and that Salls did not ask him to do so.

         ¶ 5. After the June 21 interviews, supervisors continued to monitor contact between plaintiff and Salls. Email reports from facility staff between June 22 and September 4 indicated additional concerns and boundary violations, including reports of Salls eating in the dining hall with plaintiff, reports of Salls spending too much time in the cells, and reports about Salls's strange behavior with plaintiff in the recreation room-spending time alone with him in unmonitored areas. At one point, DOC supervisors attempted to shift one of the facility's cameras to monitor the SESCF staff. However, the new positioning offended staff members due to the camera's angle, and it was returned to its original setting before it yielded any investigative results.

         ¶ 6. On September 5, 2011, an inmate alleged that he witnessed Salls make inappropriate sexual contact with plaintiff during a softball game at the facility. This was the first written report that specifically alleged direct sexual conduct by Salls against plaintiff-the previous reports indicated suspicions of boundary violations but did not include reports of sexual contact. The next day, Salls was assigned to work at the facility's control post, a position that does not involve direct contact with inmates. Salls did not work at the facility on September 7 or 8 because those were her regularly scheduled days off. From September 6 through September 8, facility staff investigated the September 5 allegations of sexual misconduct. On September 9 when Salls reported to the facility, she was temporarily relieved from duty pending an investigation into the allegations. Salls was sent home and did not return to work at SESCF.

         ¶ 7. Subsequently in August 2014, plaintiff filed suit seeking monetary damages alleging that Salls sexually exploited him and DOC failed to keep him safe from sexual exploitation by properly supervising Salls. DOC moved for summary judgment, arguing in part that DOC was immune from suit. The trial court concluded that, based on the undisputed facts, the discretionary function exception in the VTCA applied to the investigation and DOC was immune from suit. The court granted DOC's motion for summary judgment and dismissed plaintiff's claim against DOC. Plaintiff now appeals the court's ruling to this Court.

         ¶ 8. On appeal, plaintiff primarily argues that the discretionary function exception does not apply to DOC's investigation because DOC failed to establish procedures for investigating allegations of sexual misconduct pursuant to its sexual harassment policy, Policy 126. Plaintiff further argues that even if the discretionary function exception does apply, DOC waived its sovereign immunity because: (1) DOC failed to provide an adequate response to plaintiff's claims by not separating Salls and plaintiff while investigating the boundary-violation reports; and (2) DOC was ministerially negligent "when it made incorrect decisions" during the investigation, specifically regarding DOC's repositioning of facility cameras and misinterpreting Salls's employment contract.[2] The State contends the court was correct and the discretionary function exception applies because, in the absence of directives or standards requiring DOC to take specific steps, DOC reasonably exercised its discretion in investigating the allegations of sexual exploitation. Based on the undisputed facts before the court, the discretionary function exception applied to DOC's investigation in this case; we affirm the court's grant of summary judgment in favor of the State.

         ¶ 9. We review an award of summary judgment de novo. "Summary judgment is appropriate if, with facts taken as alleged by the nonmoving party and reasonable doubts and inferences resolved in favor of the nonmoving party, there is no genuine issue as to any material fact and any party is entitled to judgment as a matter of law." Kennery v. State, 2011 VT 121, ¶ 10, 191 Vt. 44, 38 A.3d 35 (quotations omitted); V.R.C.P. 56(a).

         I. The Discretionary Function Exception Applies to DOC's Investigation

         ¶ 10. First, we consider whether sovereign immunity, specifically the discretionary function exception contained in the VTCA, shielded DOC's investigation.

         ¶ 11. It has long been established that "[l]awsuits against the State are barred unless the State waives its sovereign immunity." Lane v. State, 174 Vt. 219, 222, 811 A.2d 190, 193 (2002). Under the VTCA, the State has waived immunity to the extent that a private analog exists and consented to suit when an injury is "caused by the negligent or wrongful act or omission of an employee of the State while acting within the scope of employment." 12 V.S.A. § 5601(a); see Searles v. Agency of Transp., 171 Vt. 562, 563, 762 A.2d 812, 813-14 (2000) (mem.) (outlining discretionary function exception). There are exceptions to this liability where the State has expressly elected to retain its sovereign immunity. Relevant to this case, the State has specifically retained immunity for acts or omissions by state employees "based upon the exercise or performance or failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved is abused." 12 V.S.A. § 5601(e)(1). This is referred to as the "discretionary function exception." "The purpose of the discretionary function exception is to assure that the courts do not invade the province of coordinate branches of government by passing judgment on legislative or administrative policy decisions through tort law." Earle v. State, 2006 VT 92, ¶ 22, 180 Vt. 284, 910 A.2d 841 (quotation omitted).

         ¶ 12. The exception does not apply to all State action; it shields only acts or omissions by state employees that qualify as "discretionary functions." Discretionary functions are acts that require the exercise of judgment in a situation "where there is no specifically dictated course of action for the employee to follow." Id. (quotation omitted). This Court has adopted the two-part test outlined in United States v. Gaubert, 499 U.S. 315, 322-25 (1991), to evaluate whether a State's act or omission qualifies as a discretionary function. Searles, 171 Vt. at 563-64, 762 A.2d at 813-14.

         ¶ 13. Under the first prong of the test, the court must determine whether a statute, regulation, or policy mandates certain acts, or whether performance of a duty involves an element of judgment or choice. "Generally, statutory duties that involve a predictable standard for decision making are ministerial, and thus subject to tort suits." Sabia v. State, 164 Vt. 293, 307, 669 A.2d 1187, 1197 (1995). "If a statute or regulation or policy specifically prescribes a course of action for an employee to follow, then the discretion requirement is not met." Lane, 174 Vt. at 224, 811 A.2d at 194. Thus, acts that are ministerial and clearly prescribed by policy are not covered by the discretionary function exception. However, if there are no clear mandates guiding state action and "the court determines that the act involved an element of judgment or choice, it must then decide . . . the second prong." Id.

         ¶ 14. The second prong of the test directs the court to determine "whether that judgment is of the kind that the discretionary function exception was designed to shield"-policy-related judgments. Id. (quotation omitted). The discretionary function exception was intended to protect governmental actions and decisions based on public policy considerations; decisions not related to public policy are not immune from suit. Kennery, 2011 VT 121, ¶ 32. However, it is presumed that when a government agent is authorized to exercise discretion, the agent's "acts are grounded in policy when exercising that discretion." Id. (quotation and alteration omitted). "[T]o survive a motion for summary judgment, a plaintiff must allege facts sufficient to overcome the presumption that the discretion involved policy considerations." Earle, 2006 VT 92, ¶ 23 (quotation omitted). "The analysis focuses on whether the actions taken by the government employee are susceptible to policy analysis, not on an employee's subjective intent in exercising the discretion conferred by regulation." Kennery, 2011 VT 121, ¶ 32 (quotation and alteration omitted). If state action "involves negligence unrelated to any plausible policy objectives," then the second prong of the test is not satisfied, and the discretionary function exception does not apply. Coulthurst v. United States, 214 F.3d 106, 111 (2d Cir. 2000); see alsoKennery, 2011 VT ...


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