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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-375

                                        MARCH TERM, 2013

 Jermaine Holder                                       }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito                                        }    DOCKET NO. 228-4-12 Frcv

                                                            Trial Judge: Martin A. Maley

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

        Plaintiff filed suit against the Department of Corrections (DOC) seeking an injunction
mandating his placement at work camp and requiring the DOC to reclassify him as a Level A
offender. The trial court dismissed his complaint, and plaintiff appeals. Because we conclude
that the DOC’s decisions were not subject to court review, we affirm the dismissal in part, and
remand.

        Plaintiff is an inmate under the supervision of the DOC. He is serving a three-to-ten year
sentence following convictions for attempted assault, robbery and resisting arrest. The DOC
classified him as a Level B offender and denied him placement at work camp. In April 2012, he
filed a pro se complaint against the Commissioner of the DOC claiming that the DOC had
discriminated against him in denying him the right to go to work camp, and that DOC had
wrongly classified him as a violent offender. He alleged that other individuals in a situation
similar to his own were in work camp and the DOC’s denial of work camp amounted to
discrimination. The Commissioner moved to dismiss for failure to state a claim, arguing that the
DOC’s decisions regarding work camp and plaintiff’s classification were matters within the
DOC’s discretion and not reviewable by a court. The DOC also claimed that plaintiff’s
complaint was barred by res judicata since plaintiff had previously sued over his failure to be
admitted to work camp and the court had entered judgment in DOC’s favor in that case due to
plaintiff’s failure to exhaust his administrative remedies.

        The court granted the motion to dismiss. The court noted that plaintiff’s case was
essentially the same as the one previously brought and dismissed. The court further concluded
that the DOC had discretion to make decisions regarding eligibility for work camp and that such
decision was not reviewable. Plaintiff appeals.

        On appeal, plaintiff argues that the DOC misclassified him because his offenses are not
violent and that under DOC policy he is entitled to participation in work camp. Plaintiff also
asserts that his rights to equal protection and common benefits under the Federal and Vermont
Constitutions are being denied because other similarly situated inmates have been admitted to
work camp.
        A motion to dismiss for failure to state a claim upon which relief can be granted is
appropriate when there exist no facts or circumstances that would entitle the plaintiff to relief.
Richards v. Town of Norwich, 169 Vt. 44, 48 (1999). On appeal from a dismissal for failure to
state a claim, this Court assumes that all factual allegations in the complaint are true and accepts
all reasonable inferences that may be derived from the pleadings. Id. at 48-49.

        The State contends that plaintiff’s case should be dismissed for failure to exhaust
administrative remedies. The State points to the prior case in which plaintiff’s similar
allegations were dismissed for failure to exhaust administrative remedies and alleges that the
sixty days that elapsed between that dismissal and the filing of this case were insufficient to
exhaust the DOC’s administrative procedures. In the context of a motion to dismiss and without
more to demonstrate that plaintiff has failed to exhaust his administrative remedies, we conclude
that there is an insufficient record to dismiss on this basis.

        Thus, we turn to the substantive basis of plaintiff’s complaint. Plaintiff’s complaint listed
Vermont Rule of Civil Procedure 65 and requested an injunction against the DOC. “An
injunction is generally regarded as an extraordinary remedy and will not be granted routinely
unless the right to relief is clear.” Comm. to Save the Bishop’s House v. Med. Ctr. Hosp. of Vt.,
Inc., 136 Vt. 213, 218 (1978).

        Plaintiff’s complaint did not state the underlying basis for his request for relief based on
statute or rule of DOC. The Legislature has not provided a statutory right of review for DOC’s
decisions regarding inmate classification or work camp eligibility; therefore the only avenue for
plaintiff to seek court review would be through Vermont Rule of Civil Procedure 75. Rule 75
allows judicial review of governmental administrative decisions “if such review is otherwise
available by law.” V.R.C.P. 75(a). The scope of Rule 75 is limited, however, and “[w]e have
held on many occasions that there is no absolute right to appellate review of administrative
decisions.” Mason v. Thetford Sch. Bd., 142 Vt. 495, 498 (1983). “In determining the
availability of review under Rule 75 this Court looks to the applicable law in the substantive area
governing the case.” Id. at 497. Because Rule 75 represents “the modern equivalent of
extraordinary relief by mandamus or certiorari,” there is no right to review where it would not
otherwise fall into the scope of one of these writs. In re Town of Bennington, 161 Vt. 573, 573-
74 (1993) (mem.).

        In Rheaume v. Pallito, after considering the extraordinary writs available at common law,
we held that an inmate may challenge his classification as a “high risk” sex offender, insofar as
such review is expressly granted under 13 V.S.A. § 5411b, but that “the particular programming
requirements promulgated after that designation becomes final are a matter of DOC discretion
and as such are nonreviewable under Rule 75.” 2011 VT 72, ¶ 11, 190 Vt. 245; see 28 V.S.A.
§ 102(b)(2) (charging DOC with exercising supervisory power to establish and administer
programs for treatment of inmates); id. § 102(c)(8) (granting DOC responsibility of classifying
inmates and establishing and reviewing a program for each inmate). Because the programming
decision “falls within the broad discretion of the DOC to determine what mode of treatment best
serves individual inmates,” it is not a quasi-judicial act reviewable under Rule 75. 2011 VT 72,
¶ 11.

        The DOC has authority to determine the work camp eligibility and inmate classification
decisions at issue here. See 28 V.S.A. § 102(b)(2), (c)(8); id. § 102(c)(18) (granting DOC
responsibility of establishing work programs for inmates). These decisions are entirely
discretionary. “Considerations behind such classifications are peculiarly within the province and
professional expertise of prison officials, and courts should ordinarily defer to their expert

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judgment in such matters.” Parker v. Gorczyk, 170 Vt. 263, 277 (1999). Thus, review through
Rule 75 in the nature of mandamus is not available because mandamus “is not available to
compel discretionary decisions.” Vt. State Employees’ Ass’n v. Vt. Criminal Justice Training
Council, 167 Vt. 191, 195 (1997). In addition, review is not available in the nature of certiorari
because neither decision was judicial or quasi-judicial in nature. Therefore, as in Rheaume, there
is no judicial review of the DOC’s decisions made under the statutes and DOC rules and policies,
and Rule 75 is unavailable because the decisions are entirely discretionary and not judicial or
quasi-judicial in nature.

        In his complaint, plaintiff also asserted state and federal constitutional claims related to
the denial of access to the work camp, asserting that he was denied work camp due to racial
discrimination. In response to the State’s motion to dismiss, plaintiff elaborated that he was
denied equal protection of the laws, that the DOC unconstitutionally racially discriminated
against him and that he was entitled to extraordinary relief and an injunction on that basis. See
In re Town Highway No. 20, 2012 VT 17, ¶ 47 n.5, 191 Vt. 231 (explaining that injunctive relief
may be adequate to address constitutional violations). The State’s motion to dismiss did not
provide a substantive basis to dismiss these constitutional claims. Indeed, the State did not
separately address these claims, essentially asserting that they were also unavailable in a Rule 75
proceeding.

       We have routinely addressed constitutional non-damage claims in extraordinary relief
proceedings. See, e.g., In re Search Warrant, 2012 VT 102. We may also have jurisdiction
under 42 U.S.C. § 1983. It was error to dismiss the constitutional claims on a motion to dismiss.

       Remanded for further proceedings on plaintiff’s constitutional claim.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




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