Fellows v. Pallito, No. 598-9-15 Wncv (Tomasi, J., Feb. 10, 2016)
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                                        VERMONT SUPERIOR COURT
                                           WASHINGTON UNIT
                                            CIVIL DIVISION

                                         │
Frank Fellows,                           │
 Plaintiff,                              │
                                         │
 v.                                      │
                                         │ Docket No. 598-9-15 Wncv
Andrew Pallito,                          │
Commissioner,                            │
Vermont Department of Corrections,       │
 Defendant.                              │
            Opinion and Order on Defendant’s Motion to Dismiss
      Plaintiff Frank Fellows is an inmate within the control and custody of the

Vermont Department of Corrections (the “Department”), who is currently

incarcerated at North Lake Correctional Facility, in Michigan. Plaintiff brings this

action, pursuant to Vt. R. Civ. P. 75, seeking review of the Department’s decision

not to afford him particular dietary options. The Defendant has moved to dismiss,

arguing that Plaintiff has alleged no cognizable injury that can be reviewed under

Rule 75. The Court makes the following determinations.

                                                    Analysis

         Plaintiff’s complaint and his supplemental filings indicate that the food at his

facility is of low quality, is often processed, and is not accurately described in the

menus – e.g., he claims the beef patties actually contain a significant amount of

chicken. He is principally concerned about consuming processed foods, which he

claims can eventually lead to cancer. Plaintiff has not asserted that he has any

particular medical or religious need for a particular diet, and has not claimed that
the food provided fails to meet any established minimum nutrition or health

standards. When he asked the Department to provide him with different menu

options, it refused. He grieved that decision, lost, and subsequently appealed to this

Court.

         In evaluating a motion to dismiss for lack of subject matter jurisdiction under

Vt. R. Civ. P. 12(b)(1), the Court takes “all uncontroverted factual allegations of the

complaint … as true and construed in the light mist favorable to the nonmoving

party.” Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997). In addition,

unlike a motion under Rule 12(b)(6), the Court may also consider materials outside

the complaint in deciding whether it has jurisdiction. See Conley v. Crisafulli, 2010

VT 38, ¶3, 188 Vt. 11, 14.

         Vt. R. Civ. P. 75. allows limited judicial review of governmental

administrative decisions, but only “if such review is otherwise available by law.”

The Vermont Supreme Court has interpreted this provision to mean that review is

allowable if it “is provided by the particular statute establishing an agency,” or falls

under one of the common law writs, namely: certiorari, mandamus, or prohibition.

Rheaume v. Pallito, 2011 VT 72, ¶ ¶ 9-10, 190 Vt. 245, 250. Here, as there is no

statutory right to review, this Court has jurisdiction only if one of those writs is

applicable.

         Review under a writ of certiorari allows judicial examination of decisions

taken by public officers that are quasi-judicial in nature. The Department’s actions

in this instance are not reviewable under certiorari because, in setting its food



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menus, the Department is not acting in a quasi-judicial capacity – i.e., as a court.

Instead, it is fulfilling its duties under Chapters 3 and 11 of Title 28 to make

decisions as to how to provide for the needs of the inmates and to review those

decisions periodically. See Rheaume, 2011 VT 72, ¶ 10, 190 Vt. at 250.

       Nor is review available in this instance under a writ of prohibition. “The

function of a writ of prohibition is to prevent the unlawful assumption of

jurisdiction by a tribunal contrary to common law or statutory provisions.” In re

Mattison, 120 Vt. 459, 463 (1958). Prohibition is plainly inapplicable here because

the Department has the responsibility to provide food to prison inmates. See Ala v.

Pallito, No. 2013–434, 2014 WL 3714892, at *1 (June 2014) (unpub. mem.)

(Department’s conduct in dispensing medications within its authority and not

reviewable under writ of prohibition); cf. Rheaume, 2011 VT 72, ¶ 6, 190 Vt. at 249

(“There is no question that the structuring of programming requirements is within

the agency purview of the [Department]; thus Rule 75 review cannot be derived

from this writ.”).

       Plaintiff’s only possible avenue of review is pursuant to a writ of mandamus.

Mandamus is a remedy wherein the Court “require[s] a public officer to perform a

simple and definite ministerial duty imposed by law.” Sagar v. Warren Selectboard,

170 Vt. 167, 171 (1999). For it to apply, there must be a statutory limitation on the

Department’s discretion. See Rheaume, 2011 VT 72, ¶¶ 9-10, 190 Vt. at 250. Here,

plaintiff can point to no statute constraining the Department’s ability to set menus

in its facilities. Ala, No. 2013–434, 2014 WL 3714892, at *1 (Department’s conduct



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in dispensing medications not reviewable under writ of mandamus as it has no

specific, statutory duty to dispense drugs in a particular manner).

      Furthermore, even under the standard of a so-called “extreme abuse of

discretion,” where mandamus is used to address truly arbitrary abuses of power,

relief would be unavailable. See Vermont State Employees’ Ass’n, Inc. v. Vt. Crim.

Justice Training Council, 167 Vt. 191, 195 (1997). Case law has made clear that an

extreme abuse of discretion must amount “to a practical refusal to perform a certain

and clear legal duty.” Inman v. Pallito, 2013 VT 94, ¶ 15, 195 Vt. 218, 224 (internal

quotation omitted). Absent that, mandamus may not issue, no matter how

seemingly arbitrary or extreme the Department’s decision making may appear. See

Holcomb v. Pallito, No. 2011–316, 2012 WL 390699, at *1 (Vt. Jan. 26, 2012)

(unpublished mem.).

      Plaintiff has submitted to the Court his complaint and two supplemental

filings that further explain his claim. He has pointed to no clear duty that the

Department is shirking in refusing to provide him with his desired choices of food.

He has proffered no specific medical or religious need for such a diet. While he has

noted his concern regarding the long-term consumption of processed foods, he has

not asserted in his submissions that the food being provided fails to meet any

established minimum nutritional or health standards. Under such circumstances,

the Court has no jurisdiction to review the Department’s decision under Rule 75.1


      1Although Plaintiff’s complaint does not contain a constitutional claim, the
Court notes that any such cause of action also would be unlikely to succeed. See
Cunningham v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977) (complaints about the
preparation or quality of prison food are generally “far removed from Eighth
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                                         Conclusion

      In light of the foregoing, the Motion to Dismiss is granted.

      Electronically signed on February 10, 2016 at 09:58 AM pursuant to V.R.E.F. 7(d).


                                                   ________________________
                                                   Timothy B. Tomasi
                                                   Superior Court Judge




Amendment concerns”); Price v. Rees, No. 5:06-CV-P186-R, 2007 WL 2461674, at *5
(W.D. Ky. Aug. 23, 2007) (claim of future harm from ingestion of processed foods
presents no actionable, present injury).

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