Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-475

                                     NOVEMBER TERM, 2016

 Douglas S. Cavett                                     }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito                                        }    DOCKET NO. 710-7-15 Cncv

                                                            Trial Judge: Helen M. Toor

                          In the above-entitled cause, the Clerk will enter:

        Plaintiff, an inmate committed to the custody of the Commissioner of the Department of
Corrections (DOC), appeals pro se from a superior court order dismissing his complaint seeking
an injunction to compel the DOC to provide him with three meals per day on court days. We
affirm.

        The material facts may be summarized as follows. On July 8, 2015, plaintiff filed a
grievance with correctional staff alleging that, while attending a court hearing, he did not receive
a bag lunch or an additional meal when he returned to the prison later that day. Correctional staff
responded on the same day, admitting the oversight and stating that a bag lunch would be provided
in the future. Plaintiff filed an additional grievance the next day, July 9, 2015, alleging that he had
again been deprived of a bag lunch. Correctional staff responded the following day, indicating
that any omission was based on their information concerning plaintiff’s court schedule, and that in
the future he would either be provided a bag lunch or “double up meals” when he returned if the
court date ran over. On July 14, 2015, plaintiff appealed the grievance decisions to the “corrections
executive,” and the next day, July 15, 2015, he filed an appeal with the Commissioner. Under
DOC policy, the Commissioner had twenty days to respond to an appeal.

        On July 21, 2015, less than a week after filing the administrative appeal and before any
ruling by the Commissioner, plaintiff filed in the superior court a complaint for injunctive relief,
seeking an order “to provide 3 meals for [plaintiff] on court days.” Plaintiff also filed a motion
seeking to compel disclosure of an audiotape that allegedly showed the correctional officer at court
denying his meal request. In September 2015, the State moved to dismiss, asserting that plaintiff
had failed to exhaust his administrative remedies before filing the complaint, and that the matter
was moot because correctional staff had already granted plaintiff’s request. Attached to the State’s
motion were plaintiff’s grievance forms and the correctional staff responses, as well as the
Commissioner’s decision, issued in August 2015, which acknowledged that plaintiff should have
been provided an extra meal on the days in question, and affirmed that procedures had been put in
place to assure that it did not happen again. Plaintiff filed an opposition to the State’s motion,
together with a number of additional exhibits. In December 2015, the court issued a brief order,
concluding that plaintiff had failed to state a claim for relief, and dismissing the case. The court
also denied plaintiff’s motion to compel disclosure of the alleged audiotape. This appeal followed.

        “This Court has consistently held that when administrative remedies are established by
statute or regulation, a party must pursue, or ‘exhaust,’ all such remedies before turning to the
courts for relief.” Jordan v. State, 166 Vt. 509, 511 (1997). Furthermore, “[a] party’s failure to
exhaust administrative remedies permits a court to dismiss the action for lack of subject matter
jurisdiction.” Id. It is undisputed here that plaintiff had not exhausted his administrative remedies
before filing his complaint in superior court, and therefore the complaint was properly dismissed
for lack of subject matter jurisdiction. The record shows, furthermore, that the DOC has granted
the relief requested, and the case is therefore moot. See In re Young’s Tuttle Street Row, 2007
VT 118, ¶ 4, 182 Vt. 631 (mem.) (“[W]hen a tribunal has already granted the relief requested, the
appellate case is moot, because the reviewing court can no longer grant effective relief.”)
(quotation omitted).1

        Plaintiff’s arguments on appeal are unavailing. He contends the court erred in failing to
order discovery and hold a hearing. The court acted well within its discretion, however, in deciding
the matter without a hearing under V.R.C.P. 78(b)(2),2 as there was no genuine issue of material
fact, and plaintiff has not shown how additional discovery would have altered the result. Plaintiff
also suggests that the State violated the Eighth Amendment prohibition against cruel and unusual
punishment and his right to due process. As noted, the only prospective relief that plaintiff
sought—an order requiring that he be provided with three meals a day in the future—has already
been granted. Accordingly, these claims are equally moot. We thus discern no basis to disturb the
judgment.

       Affirmed.

                                                 BY THE COURT:

                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




       1
          We note that, in relying on the State’s exhibits, the court essentially converted the motion
to dismiss to one for summary judgment under V.R.C.P.12(c). Although the court did not notify
the parties of the changed status of the motion, plaintiff was afforded an opportunity to oppose the
motion, submitted extra-pleading materials of his own, and readily acknowledged that he had filed
the grievances appended to the State’s motion. Accordingly, any procedural defect in this regard
was effectively cured. Fitzgerald v. Congleton, 155 Vt. 283, 293-94 (1990).
       2
         V.R.C.P. 78(b)(2) provides that the court need not conduct an evidentiary hearing on a
motion where it “finds there to be no genuine issue as to any material fact” and “[i]n any case, . . .
may decline to hear oral argument and may dispose of the motion without argument.”
                                                 2
