Ladd v. Pallito, No. 294-5-15 Wncv (Tomasi, J., Aug 25, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text
and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                        VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                  CIVIL DIVISION
Washington Unit                                                                 Docket No. 294-5-15 Wncv

                                                                │
Eugene Ladd,                                                    │
 Plaintiff,                                                     │
                                                                │
    v.                                                          │
                                                                │
Andrew Pallito, Commissioner,                                   │
Vermont Department of Corrections,                              │
 Defendant.                                                     │
                                                                │

                 Opinion and Order on Cross-Motions for Summary Judgment

          In this case, Inmate Eugene Ladd seeks reimbursement from the Vermont

Department of Corrections (DOC) for charges against his inmate account for

photocopies he requested of his legal papers (presumably, filings for his various

lawsuits).1 He asserts that the charges violate a final judgment in a prior case and,

otherwise, that such charges could only be lawful if the Legislature specifically

authorized them, and it has not. The parties have filed cross-motions for summary

judgment.

          Mr. Ladd’s basic claim is straightforward. He believes that the DOC under

no circumstances can charge him for making photocopies of his legal papers that he

requests unless the Legislature has adopted a statute that expressly so provides.


1 The DOC estimates the amount in dispute in this case is $18.85 as of November
23, 2015. Mr. Ladd suggests that the amount has grown since then. In the
complaint, Mr. Ladd also sought reimbursement for certain charges for postage
($2.93). The parties agree that the postage charges now have been reimbursed, and
Mr. Ladd has withdrawn that claim.
Based on that belief, he filed a small claims action in 2011 seeking reimbursement

for several years’ worth of photocopy charges. He prevailed in that case. After the

adverse small claims judgment, the DOC evidently continued charging him for

photocopying, which led to this case.

      Mr. Ladd now argues that, because the legal issue was finally determined by

the small claims judgment and the DOC otherwise lacks authority to levy him for

photocopies, the charges violate his due process rights and amount to

unconstitutional takings. He sued the DOC and the Commissioner in both his

official and individual capacities.

      The prior judgment and Mr. Ladd’s extrapolations in this case have caused

the State to brief numerous arguments, including several constitutional issues and

immunity doctrines. In the Court’s view, however, the case first boils down to three

potentially dispositive issues: (a) whether Mr. Ladd properly exhausted his

administrative remedies; (b) whether the small claims judgment has any preclusive

effect here; and, (c) if not, whether the photocopy charges are unlawful.

      It is important to note at the outset, though, what this case is not about. This

case has nothing to do with Mr. Ladd’s right to access the courts or his ability to

access photocopy services while in jail. There is no allegation of any denial of such

access.

      1.     Summary Judgment Standard

      Summary judgment is appropriate if the evidence in the record, referred to in

the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine



                                           2
issue as to any material fact and that any party is entitled to a judgment as a

matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)

(summary judgment will be granted if, after adequate time for discovery, a party

fails to make a showing sufficient to establish an essential element of the case on

which the party will bear the burden of proof at trial). The Court derives the

undisputed facts from the parties’ statements of fact and the supporting documents.

Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A

party opposing summary judgment may not simply rely on allegations in the

pleadings to establish a genuine issue of material fact. Instead, it must come

forward with deposition excerpts or affidavits to establish such a dispute. Murray

v. White, 155 Vt. 621, 628 (1991).

      2.     Exhaustion of Administrative Remedies

      The State argues that Mr. Ladd failed to exhaust his administrative remedies

because he failed to pursue the final step of the grievance policy, the appeal to the

Commissioner. See Directive 320.01 Procedural Guidelines § 15(b)(iii) (“Upon

return of a Commissioner’s decision, the disposition is considered final in regard to

administrative remedy. There are no further administrative appeals.”). The record

is more complicated.

      Mr. Ladd reached the step of the grievance policy at which he should have

filed a “decision appeal to corrections executive,” Grievance Form #5, one step

before the appeal to the Commissioner. He asserts that he was unable to identify

the correct corrections executive, or whether one existed, and so proceeded directly



                                           3
to appeal to the Commissioner. He so noted his confusion in the appeal to the

Commissioner.

      The DOC grievance coordinator, recognizing that Mr. Ladd had not already

appealed to the corrections executive, spontaneously routed Mr. Ladd’s appeal to

the Commissioner to the corrections executive instead. The corrections executive

denied the appeal. There is no evidence or allegation, however, that either the

grievance coordinator or the corrections executive clarified the procedural status of

the appeal at any point or told Mr. Ladd that he still needed to appeal to the

Commissioner if he wanted to pursue his grievance further. Mr. Ladd then filed

this case.

      Mr. Ladd now argues that the grievance policy is confusing and his

reasonable, good faith efforts at complying with it should be sufficient to satisfy his

obligation to exhaust administrative remedies. See Williams v. Correction Officer

Priatno, No. 14-4777, 2016 WL 3729383, at *7 (2d Cir. July 12, 2016) (concluding

that administrative remedies were sufficiently exhausted where procedures were

too “opaque and confusing” to be followed properly).

      Typically, the Court would find itself without subject matter jurisdiction in a

case like this, where the inmate has not properly exhausted his administrative

remedies. Indeed, the Court does not find the DOC’s grievance policy confusing, as

a general matter. But, in this particular instance, the grievance coordinator

introduced unnecessary confusion by rerouting the appeal to the Commissioner to

the corrections executive without any explanation to Mr. Ladd from either the



                                           4
grievance coordinator or the corrections executive that a second appeal to the

Commissioner still would be required to properly exhaust. In these unique

circumstances, the Court concludes that Mr. Ladd exhausted his administrative

remedies and that it does not lack subject matter jurisdiction.

      3.     The Small Claims Judgment

      The small claims judgment has no binding effect on this case because, as a

general matter, small claims judgments have no estoppel or preclusive effect on

subsequent litigation. See Cold Springs Farm Development, Inc. v. Ball, 163 Vt.

466, 470–72 (1995). As explained in Cold Springs Farm, a small claims judgment

finally resolves the specific damages claim advanced in the small claims case only.

Id. at 472–73. But, it otherwise does not bar the relitigation of any issue

determined in the course of arriving at that judgment in future litigation. Id. at

469–72. This is due largely to the informality of small claims. Id.

      The federal District Court for District of Vermont has suggested that Cold

Springs stands for the proposition that small claims court judgments are entitled to

res judicata effect as to the precise matters litigated but not collateral estoppel

effect. Burke v. Dep’t of Corrections, No. 5:14–cv–00272, 2015 WL 1954268, at *3

(D. Vt. April 29, 2015). As a general matter, this Court agrees and, as a leading

treatise has noted in an analogous context, a small claims judgment will “preclude

any further litigation on the actual claim presented but … [will not] preclude

further litigation on any of the issues presented.” 18A Charles Wright, Arthur




                                           5
Miller and Edward Cooper, Fed. Prac. & Proc. Juris. § 4443 (2d ed.) (citing United

States v. Int’l Bldg. Co., 345 U.S. 502 505–06 (1953)).

      Here, Mr. Ladd is seeking damages for photocopy expenses that were not at

issue in his former small claims case. Accordingly, that small claims judgment has

no impact on this case.2

      Incidentally, the small claims court initially ruled in the DOC’s favor. On

appeal, the civil division interpreted the small claims decision

narrowly as having relied exclusively on two statutes as specific authority for

photocopy charges. It reversed and remanded because it did not appear to the

Court that those two statutes authorized the charges actually at issue and because

additional findings were needed regarding DOC directives, Mr. Ladd’s prison

accounts, and his possible indigence. But, the Superior Court did not make any

final ruling on the larger question of the DOC’s authority to charge for photocopies.

      On remand, the small claims court, limited by the narrow mandate and the

facts, awarded judgment to Mr. Ladd. The State never sought review of the small

claims court’s second judgment.3 As a result, the only final judgment with regard to




2 Similarly, small claims courts are not empowered to award injunctive relief, Vt. R.
Sm. Cl. P. 2(a); and the judgment at issue in the earlier case did not purport to
include equitable relief. The DOC was not bound to conform its subsequent conduct
to that judgment, and that prior ruling does not control the legal issue in this case.


3At the time, Mr. Ladd was housed out of state in a privately operated facility. The
small claims case was defended by private counsel for that facility, not by the Office
of the Vermont Attorney General.
                                           6
the photocopy charge issue is the second ruling from the small claims court, which

is not entitled to preclusive effect.

       4.     Authority for Photocopy Charges—Directive #385.01 § 4.3.2.1.11

       The DOC charges inmates a nominal amount for photocopies unless the

inmate is indigent. See Directives #385.01 § 4.3.2.1.11 (photocopies), #321.01,

Definitions (defining indigency). Directive #385.01 § 4.3.2.1.11 applies by its terms

to photocopies “of inmate court filings pertaining to state or federal post conviction

remedies and civil rights actions involving conditions of confinement.” Essentially,

if the inmate has less than $10 in his accessible inmate accounts for thirty days in a

row, he is indigent and photocopy charges are not assessed. If he is not indigent,

the charges are assessed. See generally Affidavit of Kathy Corriveau (filed Nov. 30,

2015). No inmates are denied photocopies due to an inability to pay.

       Here, as in the initial small claims case, the only authority Mr. Ladd cites for

his argument that photocopy charges are unlawful unless the legislature specifically

says otherwise is Smith v. Florida Dept. of Corrections, 920 So.2d 638 (Fla. Dist. Ct.

App. 2005). The Smith Court specifically recognized that numerous courts have

recognized that there is no right to “the provision of free and unlimited photocopies

to inmates for the purposes of litigation.” Id. at 639. Based on Florida-specific

statutes and case law, however, it ruled that the Florida corrections department

could not charge for photocopies without express, specific legislative authority to do

so, which did not exist. Id. at 640–43.




                                           7
      The Smith ruling is peculiar to Florida. The Court has been directed to no

court from another state that has followed Smith with regard to this issue. Indeed,

courts have concluded that the rationale in Smith was based on Florida-specific law.

See Olmos v. Ryan, No. CV 10-2564-PHX-GMS, 2013 WL 4602517, at *5–6 (D. Ariz.

Aug. 29, 2013) (Smith is irrelevant to whether Arizona prisoners may be charged for

copies); Searcy v. Idaho State Bd. of Correction, No. 41216, 2015 WL 160361, at *10

(Idaho Ct. App. Jan. 14, 2015), aff’d 2016 WL 3977207 (Idaho July 22, 2016)

(similar and also noting that charging such fees does not require formal

administrative rulemaking).

      As the Idaho Supreme Court recently noted, “courts have recognized that

prison administrators are extended deference when imposing fees that have not

been specifically authorized by statute.” Searcy, 2016 WL 3977207, at *5. Doing so

is generally within the broad scope of a corrections department’s authority to

manage its facilities and the inmates in them. Id. at *7–8; accord Olmos 2013 WL

4602517, at *5–6.

      The Vermont DOC also has been granted such expansive authority. See

generally 28 V.S.A. §§ 101, 102(b); Parker v. Gorczyk, 170 Vt. 263, 278 (1999) (citing

Wolff v. McDonnell, 418 U.S. 539, 566 (1974) for the proposition “that broad

discretionary authority of prison officials is necessary for them to undertake [the]

extraordinarily difficult task of administering prison”); Conway v. Cumming, 161

Vt. 113, 115 (1993) (noting “the necessarily broad discretionary authority of prison




                                          8
officials over prison administration”). The DOC has exercised that authority in

enacting Directive #385.01 § 4.3.2.1.11.

      To the extent that the photocopies at issue in this case fall within the scope of

Directive #385.01 § 4.3.2.1.11, the Court concludes that the modest photocopy

charges at issue here, and the manner by which they are implemented, are

generally within the DOC’s broad authority over prison administration. If there

were some other legal basis for not imposing them in this case, such as his

indigence, it was Mr. Ladd’s burden to come forward with it. He has not done so.

The DOC is entitled to summary judgment insofar as the photocopying charges in

this case fall within Directive #385.01 § 4.3.2.1.11.

      5.     Other Authority for Photocopy Charges

      It is unclear whether this case may involve charges for photocopies falling

outside the scope of Directive #385.01 § 4.3.2.1.11. Directive #385.01 § 4.3.2.1.12,

for instance, appears to more broadly require that “[i]nmates will have access to

photocopying services,” but does not include any provisions instituting charges or

referring to the charges in the previous section. Nor does the record include any

clear evidence that the DOC as a matter of policy generally permits photocopying

and imposes charges in the manner described by Ms. Corriveau. On this limited

record, then, the Court is unable to rule out the possibility that the DOC has

imposed photocopying charges on Mr. Ladd arbitrarily, in violation of its policies

and directives. To the extent that the photocopying charges in this case may fall




                                           9
outside the scope of Directive #385.01 § 4.3.2.1.11, summary judgment is denied at

this time.

      While the Defendant also raises various immunity defenses, without defining

the underlying facts in the preceding paragraph, the Court cannot make a present

assessment of those defenses—with two exceptions. Plaintiff’s stated claims against

Defendant in his individual capacity fail as a matter of law based on absolute

immunity, see Curran v. Marcille, 152 Vt. 247, 249 (1989); and his federal claims for

monetary damages against Defendant in his official capacity are barred because

such claims are construed as being against the State, which is not a “person”

amenable to suit under 42 U.S.C. § 1983, see Bock v. Gold, 2008 VT 81, ¶ 9, 184 Vt.

575, 577 (mem.) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).

                                        Order

      For the foregoing reasons, Mr. Ladd’s summary judgment motion is denied,

in part; and the State’s is granted in part and denied, in part.


      Dated this __ day of August 2016, at Montpelier, Vermont.

                                                _____________________________
                                                Timothy B. Tomasi,
                                                Superior Court Judge




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