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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-236

                                      DECEMBER TERM, 2016

 Louis Ray Gilbeau, Jr.                                }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Department of Corrections and Centurion               }    DOCKET NO. 22-1-16 Wncv
 Medical Services

                                                            Trial Judge: Timothy B. Tomasi

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

        Plaintiff appeals the superior court’s dismissal—for failure to exhaust his administrative
remedies—of his complaint alleging that the prison facility in which he is currently incarcerated
failed to provide him with a tomato-free diet that had previously been approved in another facility.
We affirm.

        On January 11, 2016, plaintiff, an inmate committed to the custody of the Commissioner
of the Department of Corrections (DOC), filed a pro se emergency petition for injunctive relief to
enjoin defendants DOC and Centurion of Vermont, LLC, a managed care company that provides
medical and mental health care to inmates in Vermont prisons, from refusing to provide necessary
medical treatment. In an attached affidavit, plaintiff stated that five days earlier, on January 5,
2016, medical personnel at Southern State Correctional Facility (SSCF) decided to change his no-
tomato diet and asked him to submit to blood work to confirm a tomato allergy. The affidavit
further stated that his request to have a cyst removed had been continually denied during the past
five years. At a February 1, 2016 status conference, an attorney for the Defender General’s Office
entered an appearance on behalf of plaintiff, and the superior court converted the petition to a
complaint pursuant to Vermont Rule of Civil Procedure 75.

        Defendants filed a motion to dismiss, arguing that plaintiff had failed to exhaust his
administrative remedies before filing his complaint with the superior court. Defendants supported
their motion with an affidavit describing DOC’s grievance procedures, as well a copy of those
procedures. Plaintiff, now represented by counsel, asked the court to exercise its discretion and
deny defendants’ motion, explaining that plaintiff is allergic to tomatoes and that, following
plaintiff’s recent transfer to SSCF, DOC was refusing to follow its own doctor’s previous decision
to provide plaintiff with a tomato-free diet. Plaintiff also asked that, as an alternative to denial of
the motion, he be allowed to conduct discovery regarding his medical care.

       At a status conference on the motion to dismiss, the superior court allowed plaintiff thirty
days to file a supplemental response to the motion. On May 11, 2016, plaintiff filed an amended
complaint in which he stated that: (1) he suffered from gastroesophageal reflux disease (GERD);
(2) the doctor at Northern State Correctional Facility (NSCF) treated him for GERD and ordered
him not to eat tomatoes; (3) in consideration of the doctor’s order, NSCF provided him with
tomato-free meals; (4) he was transferred to SSCF on December 15, 2015; (5) the medical staff at
SSCF refused to recognize the NSCF doctor’s order regarding his tomato-free diet; (6) under the
mistaken belief that he had a tomato allergy, SSCF’s medical staff refused to order a tomato-free
diet unless he submitted to allergy testing; and (7) he refused to do so because he does not have a
tomato allergy.

        The superior court accepted the amended petition but granted defendants’ motion to
dismiss, stating that it lacked jurisdiction to consider the matter because plaintiff had not contested
the fact that he failed to exhaust the administrative remedies set forth in DOC’s grievance
procedures. In response to plaintiff’s argument that he should not have to exhaust his
administrative remedies because his complaint concerned health care and he had already been
allowed a tomato-free diet at NSCF, the court stated that health care decisions are not insulated
from prison administrative grievance procedures and no regulation precluded DOC from revisiting
its determinations or prevented different facilities from having diverse guidelines.

         On appeal, plaintiff argues that: (1) going through administrative grievance procedures
would serve no purpose because both a DOC doctor and the DOC’s health services director had
already approved a tomato-free diet; and (2) a prisoner seeking the continuance of appropriate
medical care approved by DOC’s own doctors should not be required to go through an
administrative grievance procedure solely because the prisoner is transferred to a new prison
facility.

        “A party’s failure to exhaust administrative remedies permits a court to dismiss the action
for lack of subject matter jurisdiction.” Jordan v. State, 166 Vt. 509, 511 (1997). “We review a
trial court’s denial of a motion to dismiss for lack of subject matter jurisdiction de novo, with all
uncontroverted factual allegations of the complaint accepted as true and construed in the light most
favorable to the nonmoving party.” Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11 (quotation
omitted). “A court may consider evidence outside the pleadings in resolving a motion to dismiss
for lack of subject matter jurisdiction, and we review these factual findings for clear error.” Id.

        Plaintiff argues that, notwithstanding the superior court’s emphasis on the importance of
factual development in this case due to plaintiff’s conflicting allegations as to why he needed a
tomato-free diet, DOC’s health services director approved the diet for his GERD, and thus there
was no reason for plaintiff to seek approval again because of NSCF’s mistaken belief that the diet
was allergy-based. According to plaintiff, prevailing medical standards should not require him to
go through a lengthy grievance process just to ensure the continuation of preventative care that
DOC had already approved.

        We discern no basis to overturn the superior court’s dismissal of this case based on
plaintiff’s failure to exhaust administrative remedies. As we stated in Jordan:

                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.
               This long-settled rule of judicial administration serves the dual
               purposes of protecting the authority of the administrative agency
               and promoting judicial efficiency. Therefore, where an agency has
               jurisdiction to decide an issue, a court will not interfere with the

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               agency’s decision-making unless and until all administrative
               remedies have been invoked, except where the party qualifies for an
               exemption.

166 Vt. at 511-12 (citations omitted).

        Where the Legislature has not specifically mandated exhaustion of administrative
remedies, a litigant may be exempted from doing so if it would be futile. Stone v. Errecart, 165
Vt. 1, 4 (1996). In such cases, “sound judicial discretion governs.” Id. Relevant to this case, the
Legislature has directed the commissioner of DOC to “establish procedures to review the
grievances of inmates.” 28 V.S.A. § 854. DOC has implemented an offender grievance system
that includes procedures for filing informal, emergency, and formal grievances, with
administrative appeals to corrections executives and ultimately the commissioner. Nothing in the
grievance system suggests that health care issues are excluded from the procedures contained
therein.

        Even if the legislative direction to establish prisoner grievance procedures does not
constitute a specific mandate of exhaustion, the superior court acted well within its discretion in
not exempting plaintiff from our longstanding and well-settled exhaustion rule. Despite plaintiff’s
argument to the contrary, his two complaints create some uncertainty as to what plaintiff was
claiming happened at the two prison facilities, and who decided what on what basis. Requiring
him to go through the grievance procedure ensures that the matter will be “fully explored and
litigated before the administrative body possessing the pertinent experience and expertise in the
subject area” before involving the courts if still necessary. Rennie v. State, 171 Vt. 584, 585 (2000)
(mem.). Plaintiff complains about the lengthy grievance process, but if he had gone through that
process when the subject issue first arose, it most likely would have been resolved more efficiently
than proceeding through the courts, which has now taken nearly a year.

       Affirmed.



                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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