Bouchard v. Menard, No. 682-10-15 Wncv (Tomasi, J., June 15, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]



                                                       STATE OF VERMONT
 SUPERIOR COURT                                                                                           CIVIL DIVISION
 Washington Unit                                                                              Docket No. 682-10-15 Wncv

 Michael Bouchard,
       Plaintiff

             v.

 Lisa Menard,
       Defendant


             Opinion and Order on Cross-Motions for Summary Judgment

           In this petition for review of governmental action under Vt. R. Civ. P. 75,

Plaintiff Michael Bouchard seeks review of Defendant Commissioner Lisa Menard’s

(the “Department’s”) imposition of a disciplinary conviction against him based on

allegations that he wrongfully consumed drugs in a correctional facility. Plaintiff

asserts that there was insufficient evidence to support the hearing officer’s

determination of guilt because one of the urinalysis tests performed on him did not

comply with the Department’s chain-of-custody requirements.

           Plaintiff has moved for summary judgment on that basis. The Department

has cross-moved for summary judgment arguing that the evidence is sufficient to

find Plaintiff guilty even in the absence of the urinalysis and that, in any event, the

urinalysis substantially complied with any chain-of-custody demands. Plaintiff is

represented by Kelly Green, Esq., of the Prisoners’ Rights Office. The Department

is represented by Assistant Attorney General Andrew Gilbertson. The Court held a

hearing on the motions on June 14, 2016. After considering the parties’ argument,
memoranda, and the summary judgment record, the Court makes the following

determinations.

                          Summary Judgment Standard

      Summary judgment is appropriate if the evidence in the record, referred to in

the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine

issue as to any material fact and that any party is entitled to a judgment as a

matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)

(summary judgment will be granted if, after adequate time for discovery, party fails

to make showing sufficient to establish essential element of the case on which the

party will bear burden of proof at trial). Where there are cross-motions for

summary judgment, as here, “both parties are entitled to the benefit of all

reasonable doubts and inferences.” Montgomery v. Devoid, 2006 VT 127, ¶ 9, 181

Vt. 154, 156.

      The Court derives the undisputed facts from the parties’ statements of fact

submitted under Vt. R. Civ. P. 56(c)(1)(A), and the supporting documents.1 Boulton

v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party

opposing summary judgment may not simply rely on allegations in the pleadings to

establish a genuine issue of material fact. Instead, it must come forward with

deposition excerpts or affidavits to establish such a dispute. Murray v. White, 155

Vt. 621, 628 (1991).




1
 In this case, despite the possible procedural problems presented by it—including
the lack of clarity as to which facts are actually contested—the Court accepts the
“printed case” employed by the parties as the summary ju dgment record.
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      In this instance, the Court’s examination is further cabined by Vt. R. Civ. P.

75. Rule 75 allows judicial review of governmental administrative decisions, but

only “if such review is otherwise available by law.” While the case law interpreting

Rule 75 has insulated the overwhelming majority of discretionary administrative

decisions made by the Department from judicial review, see, e.g., Rheaume v.

Pallito, 2011 VT 72, ¶ 11, 190 Vt. 245, 250, the Court may still review quasi-judicial

decisions in accordance with the principles of certiorari review. Id.

      The scope of certiorari review under Rule 75 is very narrow. “[W]hen

reviewing administrative action by the [Department] under V.R.C.P. 75, we will not

interfere with the Department’s determinations absent a showing that the

[Department] clearly and arbitrarily abused its authority.” King v. Gorczyk, 2003

VT 34, ¶ 7, 175 Vt. 220, 224; Molesworth v. University of Vermont, 147 Vt. 4, 7

(1986) (certiorari review “confined to addressing substantial questions of law

affecting the merits of the case.”).

      More specifically, in the context of reviewing disciplinary determinations

made in the prison setting, the Vermont Supreme Court has adopted the standards

set forth by the United States Supreme Court in Superintendent v. Hill, 472 U.S.

445, 455 (1985). LaFaso v. Patrissi, 161 Vt. 46, 49 (1993). Although due process

requires the Department to prove inmate disciplinary infractions by a

preponderance of the evidence at the disciplinary hearing, id. at 51, under Hill, this

Court will uphold a disciplinary determination if “there is any evidence in the record

to support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455–

56 (emphasis added); King, 2003 VT 34, ¶ 7, 175 Vt. at 224 (noting same); LaFaso,



                                          3
161 Vt. at 49 (prison determination “must be upheld if it is supported by ‘some

evidence’ in the record” (citation omitted)).

         As the Hill Court concluded, “[r]equiring a modicum of evidence to support a

decision [of a disciplinary board] . . . will help to prevent arbitrary deprivations

without threatening the institutional interest or imposing undue administrative

burdens.” 472 U.S. at 455. Accordingly, in this case, the disciplinary decision will

be affirmed if it is supported by “any evidence” in the record. King, 2003 VT 34, ¶ 7,

175 Vt. at 224.

                                 Factual Background

         The summary judgment record establishes that, on August 22, 2015,

Corrections Officer (CO) Thomas noticed that Plaintiff was acting strangely. His

recorded observations established that he believed Plaintiff was high, and he

requested that Plaintiff provide a urine sample for a drug test. Printed Case (PC)

at 18.

         Plaintiff reported to the area where such tests were conducted. CO Caffrey

administered the test, and Plaintiff provided a urine sample at approximately 2:05

a.m. PC at 19. That sample immediately tested positive for Buprenorphine. Id.

CO Caffrey’s report indicates that he sealed a second sample provided by Plaintiff

and later mailed it to the lab. Id. It confirmed that Plaintiff had consumed

Buprenorphine. Id.

         Plaintiff asserted at the hearing, and repeats here, that the Department

failed to establish a proper chain of custody. He noted that CO Thomas’ report

indicates he was sent to provide a sample at 7:59 p.m., but CO Caffrey’s report

indicates that provided a sample at 2:05 a.m. He next asserts that, at various

                                            4
points, CO Caffrey’s reports assert that the sample was taken at 2:05 a.m. or 20:05.

Plaintiff also asserts that the chain-of-custody form contains the handwriting of two

persons, which, he asserts, raises questions as to its authenticity.

      The Department considered those objections and determined that they

amounted to typographical and clerical errors. Based on all the evidence, the

Department concluded that there had been substantial compliance with the chain-

of-custody rules and that the test results were reliable. PC at 13.

                                       Analysis

      The Vermont Rules of Evidence do not apply in disciplinary proceedings.

But, defects in chains of custody are not necessarily fatal to the admission of testing

results even where the Rules of Evidence do apply. See State v. Comstock, 145 Vt.

503, 5–6 (1985). As the Supreme Court has held:

      a chain of custody need not be established perfectly; imperfections go
      to the weight, not the admissibility. State v. Mecier, 138 Vt. 149, 153,
      412 A.2d 291, 294 (1980). Rather, the circumstances need to establish
      only a “reasonable assurance” that the evidence is authentic and has
      not been tampered with. State v. Stevens, 137 Vt. 473, 477, 408 A.2d
      622, 625 (1979).

State v. Pratt, 2015 VT 89, ¶ 33. Any failure to comply perfectly with chain-

of-custody rules established by the Department should be treated in like

manner. King, 2003 VT 34, ¶ 9, 175 Vt. at 225 (rejecting claim that violation

of Department chain-of-custody rule required a reversal and holding that:

“The identity of a specimen used in drug testing need not be proved beyond

all possibility of doubt to be admissible…. The circumstances need establish

only reasonable assurance of the identity of the sample tested.”).




                                           5
      In this instance, Plaintiff raised the chain-of-custody deficiencies

described above during the hearing and on appeal. The Department

considered them and concluded, in essence, that any such defects did not

impact the admissibility of the results but went to their weight. PC at 13.

      The Department’s determination in that regard is supported by the

record. The report of CO Thomas does not specify a particular time when

Plaintiff was asked for a urine sample, and the time signature may have been

when CO Thomas wrote the report, or it may have been a typographical

error. Similarly, the confusion over whether the time was 02:05 or 20:05 is

explained by the records themselves. In two places it is evident that CO

Caffrey actually corrected his initial error of writing 20:05 and wrote 02:05.

Id. at 21 & 22. The Hearing Officer could have easily relied on those

corrections and the other places where the 02:05 time is indicated, id. at 19,

as proof that 02:05 was the correct time.

      Lastly, the Hearing Officer could have relied on CO Caffrey’s entries

on the chain-of-custody form as establishing that he had taken Plaintiff’s

sample, stored it, and mailed it to the lab. Given that evidence, and the lack

of any competing narrative submitted by Plaintiff, the Court cannot conclude

that the Department erred in finding a sufficient chain of custody in this

case. King, 2003 VT 34, ¶ 9, 175 Vt. at 225.

      In light of the evidence contained in CO Thomas’ report, the initial

urinalysis, and the confirmatory lab analysis, there is easily enough evidence

to support the guilty finding in this case. LaFaso, 161 Vt. at 49.

      WHEREFORE, the conviction is affirmed.

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Dated at Montpelier, Vermont, this ___ day of June, 2016.



                                            ____________________
                                            Timothy B. Tomasi
                                            Superior Court Judge




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