Wool v. Bullard, No. 203-4-13 Wncv (Teachout, J., August 18, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 203-4-15 Wncv

KIRK WOOL
     Plaintiff

           v.

CULLEN BULLARD, ANDREW PALLITO,
AND GOVERNOR PETER SHUMLIN
     Defendants

                                              DECISION
                     Defendants’ Motion to Dismiss and Mr. Wool’s Motion to Amend

         In this case, Inmate Kirk Wool alleges that the Department of Corrections has determined
that he will be required to participate in VTPSA, the Vermont Treatment Program for Sexual
Abusers, but is not currently allowing him to do so. Successful participation presumably will
improve Mr. Wool’s chances at some form of early release. According to documents attached to
the complaint, as of April 2014, he “will be reviewed for participation in the sex offender
program in 2 years.” Mr. Wool claims that his current inability to participate in VTPSA violates
28 V.S.A. §§ 801 and 907, and chapter 1, article 18 of the Vermont Constitution. He seeks
injunctive relief allowing him to participate in VTPSA immediately and damages. The State has
filed a motion to dismiss arguing that (1) Defendant Governor Shumlin has never been served,
(2) all defendants are entitled to sovereign immunity, (3) sex offender programming is
discretionary with the Department of Corrections (DOC) and is not subject to the cited statutes,
(4) the cited constitutional provision has no application in this case, (5) Mr. Wool failed to
exhaust his administrative remedies, and (6) his “high risk” claim is not ripe. Mr. Wool opposes
dismissal and seeks to amend the complaint to clarify that all defendants are named in both their
personal and official capacities.

       Mr. Wool alleges that his claims have legal bases in 28 V.S.A. §§ 801 and 907, and
chapter 1, article 18 of the Vermont Constitution. Section 801 generally requires the DOC to
“provide health care for inmates in accordance with the prevailing medical standards.” 28
V.S.A. § 801(a). Section 907 requires the DOC to “administer a program of trauma-informed
mental health services” meeting certain stated criteria. 28 V.S.A. § 907(a). Article 18 of the
Vermont Constitution states that “justice, moderation, temperance, industry, and frugality, are
absolutely necessary to preserve the blessings of liberty, and keep government free” and
implores Vermonters to “pay particular attention to these points, in the choice of officers and
representatives . . . as . . . necessary for the good government of the State.” Vt. Const. ch. 1, art.
18.

      There is no established private right of action arising out of any of the cited provisions.
More importantly, they have nothing whatsoever to do with the DOC’s programming decisions.
The Vermont Supreme court has made clear that the DOC’s programming decisions are purely
within the DOC’s discretion and are nonreviewable. Inman v. Pallito, 2013 VT 94, ¶¶ 12–18,
195 Vt. 218; Holcomb v. Pallito, No. 2011–316 (Vt. Jan. 26, 2012); Rheaume v. Pallito, 2011
VT 72, ¶ 11, 190 Vt. 245.

       The decision at issue in this case is the timing of programming. The DOC has decided
that now is not the appropriate time for Mr. Wool to participate in VTPSA. The decision falls
squarely in the Rheaume line of authority and is not reviewable in this case.

        Mr. Wool attempts to sidestep that line of authority by framing the decision at issue in
this case as a deprivation of necessary mental health services. He does not allege, however, that
any health provider diagnosed him with a mental illness for which sex offender programming has
been prescribed as medically necessary treatment. Routine offender programming, determined
and implemented by the DOC, is not the sort of healthcare and mental health services
contemplated by 28 V.S.A. §§ 801 and 907.

         Mr. Wool also seeks an injunction to prevent the DOC from treating him as “high risk”
for failing to participate in VTPSA when it will not permit him to participate in VTPSA. It is not
fully clear what Mr. Wool means by “high risk” in this context. He expressly says that he is not
referring to a “high risk sex offender” designation. In any event, this claim is predicated on the
same challenge to the DOC’s discretion to determine the appropriate timing for Mr. Wool to
begin his programming that has been addressed above.

        The court also rejects Mr. Wool’s argument that the State’s motion to dismiss should be
denied because his claim is novel and novel claims should be permitted to unfold, not be
dismissed under Rule 12(b)(6). A novel claim is one that may possibly have merit once it comes
into better focus on a developed factual record. Wariness about dismissing novel claims too
soon is not, however, a license to engage in pointless litigation over a meritless claim that
inevitably will remain so no matter how well developed the facts become.

        The complaint is dismissed for failure to state a claim. It is unnecessary to address the
State’s other arguments in support of dismissal. Mr. Wool’s motion to amend has no effect on
the court’s analysis and thus is moot.


                                             ORDER

      For the foregoing reasons, the State’s motion to dismiss is granted; Mr. Wool’s motion to
amend is denied as moot.

       Dated at Montpelier, Vermont this ____ day of August 2015.


                                                     _____________________________
                                                     Mary Miles Teachout,
                                                     Superior Judge

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