McLaughlin v. Pallito, No. 42-1-14 Wncv (Teachout, J., January 13, 2014)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 42-1-14 Wncv

William McLaughlin
      Plaintiff

           v.

Andrew Pallito, Commissioner,
Vermont Department of Corrections
     Defendant

                                                 DECISION
                                Mr. McLaughlin’s Motion for Summary Judgment

        Vermont Inmate William McLaughlin has been held in administrative segregation at the
Lee Adjustment Center in Beattyville, Kentucky for a protracted time, currently exceeding one
year.1 He claims that the processes by which the Department of Corrections (DOC) placed him
in segregation and has kept him there since violate his due process rights and the DOC’s own
directives.2 He requests that this court order the DOC to release him from segregation or to
conduct an administrative segregation hearing that fully complies with his procedural rights. Mr.
McLaughlin has filed a motion for summary for judgment, which the DOC opposes.

        Mr. McLaughlin originally was placed in segregation pending a disciplinary hearing
related to suspected involvement in a fight resulting in the broken jaw of another inmate. That
disciplinary proceeding was dismissed, and another was begun, when video footage of the
incident was found to show that Mr. McLaughlin was involved in a different fight. He was
convicted of the second violation before a Lee Adjustment Center hearing officer. That
conviction later was vacated and he was granted a new hearing before a Vermont hearing officer.
The third proceeding resulted in a conviction, but Commissioner Pallito reversed it on February
13, 2014 out of “procedural and due process concerns” despite, according to him, “compelling”
evidence of guilt. The disciplinary violation was expunged and there were no further
disciplinary proceedings related to the fight. Nearly a year later, Mr. McLaughlin remains in
segregation.


1
  Mr. McLaughlin alleges that he was first placed in segregation in December 2013. No filings in this case, the most
recent of which is August 4, 2014, indicate that he ever has been removed from segregation. For purposes of this
decision, the court assumes that he remains in administrative segregation now.
2
  Vermont inmates are housed at the Lee Adjustment Center under contract between the DOC and Corrections
Corporation of America (CCA). There is no dispute that the DOC’s directives controlling administrative
segregation apply to this inmate population and no party has asserted that this court lacks personal or subject matter
jurisdiction. Moreover, there is no suggestion that, in relation to Mr. McLaughlin, the distinction between the DOC
and CCA has any bearing on this case. The court thus refers in this decision to the DOC and the operators of the
Lee Adjustment Center collectively as the DOC.
        During the disciplinary proceedings, it is unclear which segments of Mr. McLaughlin’s
segregation were disciplinary and which administrative. It is similarly unclear whether the
conditions of confinement differ with the classification. There appears to be no dispute that all
or nearly all of the subsequent segregation has been administrative. The actual conditions of Mr.
McLaughlin’s confinement while segregated are not in the record.

       Placement in administrative segregation

        Procedural aspects of administrative segregation are set out in Directive #410.03.
Placement on administrative segregation generally begins with a placement report stating
specific reasons that warrant segregation. Directive #410.03, Procedural Guidelines § 2(a). A
notice of hearing is completed and reviewed with the inmate. Id. § 2(b). The Superintendent
reviews the report and the notice to ensure that there is just cause for segregation and that notice
was proper. Id. § 2(c). A due process hearing must occur no later than the fourth day of
segregation. Id. § 2(d).

        A hearing officer presides over the due process hearing. Id. § 3(g). A presenting officer,
“who was not involved in the preliminary decision to place the inmate on segregation,” makes
the case in favor of segregation. Id. § 3(e). The inmate has a right to appear at the hearing, id. §
3(c), with the benefit of a hearing assistant, id. § 3(d), to make the case against segregation. At
the hearing, the inmate has the right to be present and to be heard, to call and cross-examine
witnesses, and to submit a written statement and other documentary evidence. Id. § 3(g)(iii) and
Attachment #3 (Notice of Hearing) to Directive #410.03. The hearing is recorded by “digital,
audio or audiovisual equipment.” Id. § 3(g)(ii).

        After considering “all evidence presented,” id. § 4(c), the hearing officer then makes
findings and a recommendation in favor of or against segregation, id. § 4(a), (b). “No inmate
may be recommended for Administrative Segregation unless it is supported by at least a
preponderance of the evidence presented. Id. § 4(c). To warrant segregation, the findings must
establish one of the following:

       a. An inmate is charged with a disciplinary violation (DR) and is awaiting a
       disciplinary hearing, and, in the judgment of staff, may become disruptive or be
       dangerous if left in general population. If a DR hearing, [sic] is held within four
       (4) business days after the inmate is placed in segregation, an Administrative
       Segregation hearing does not need to be held.

       b. An inmate may pose a serious escape risk;

       c. An inmate requests and/or requires protective custody;

       d. An inmate is a danger to others;

       e. An inmate has demonstrated that they are a threat to the secure and orderly
       running of the facility;



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       f. During investigation of an allegation of, or information about, an inmate’s
       involvement in the commission of a crime, and staff feel the inmate poses a threat
       to the secure and orderly operation of the facility;

       g. Upon the order of a physician or equivalent provider (Advanced Practice
       Nurse, Nurse Practitioner or Physician Assistant).

Id. § 1. The Superintendent must approve segregation. Id. § 4(d). The inmate then may appeal
to the Commissioner. Id. § 5.

       Following placement in administrative segregation

         Nothing in Directive #410.03 provides any temporal limit on the duration of an inmate’s
segregation. Instead, the inmate’s segregation undergoes 7, 30, and 60-day reviews indefinitely.
At each 7-day review, the segregation review committee reviews the inmate’s status. Directive
#410.03, Procedural Guidelines § 6(c). The directive describes no process with regard to how
this is done, though the committee will consider a written statement from the inmate if one was
submitted during the previous week. At each 30-day review, the review committee “will make a
new written finding of fact and determination regarding placement.” Id. § 6(d)(ii). The inmate
is allowed to submit a written statement and is permitted to attend the review, though evidently
has no other procedural protections. Id. § 6(d)(i). It is unclear whether the committee’s finding
is whether there is a continuing basis for segregation or something else. If the former, it is
unclear upon what record such a finding might be based. At each 60-day review, the deputy
commissioner reviews documents, including the inmate’s behavioral plan, DRs and incident
reports from the past 60 days, a medical/mental health treatment plan, etc. Id. § 6(e). The
inmate has no procedural rights at the 60-day review.

       The culmination of each review is a recommendation to the Superintendent to:

       i. Continue on the current status;
       ii. Modify the conditions of confinement;
       iii. Move to Phase II Segregation (after 30 days only);
       iv. Remove from Administrative Segregation.

Id. § 6(f). Phase II Segregation presumably is less restrictive; it requires good behavior,
completion of in-cell programming requirements, and adherence to the behavioral plan. Id. § 7.
The inmate must be released from segregation when one of three conditions is present: “1) the
condition, which required placement, is no longer present; 2) upon completion of a disciplinary
hearing and transfer of the inmate to Disciplinary Segregation; 3) upon approval of a physician
who authorized placement.” Id. § 8(b).

        There is no right to an administrative appeal from a decision to continue segregation at
the 7, 30, and 60-day reviews.




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       Issues and the sufficiency of the record

        Mr. McLaughlin claims that, in some manner, decisions of the DOC have violated either
or both the procedures required by Directive #410.03 or his constitutional right to due process.
He emphasizes that the initial DR was expunged and the factual findings at segregation hearings
and reviews are sparse to nonexistent. The DOC generally responds that it is not required to
follow the directive, Mr. McLaughlin has no applicable due process rights, and that he has
received most or all of the reviews to which he is entitled. Moreover, it has submitted an
affidavit that presumably is intended to justify continued segregation as necessary to protect
inmate safety and order within the facility.

        Evaluation of whether there are disputes of material fact is difficult due to the
presentation of the case. While Petitioner has laid out a statement of facts that cites to the record
in compliance with Rule 56(c)(1)(A) and has attached record documentation, Petitioner does not
include an affidavit that provides context or explanation for the record documents. Furthermore,
it appears that the entire record is not attached to Petitioner’s motion. The response of
Respondent appears to rely on significant additional documentation. Petitioner represents that
these documents were not provided in discovery and thus not available to Petitioner. They
complicate the factual material considerably, but it is still not clear that the court has the entire
record. Moreover, the response to the Petitioner’s statement of material facts does not clarify
disputes of fact by citations to supporting documents or affidavits, but merely gives conclusory
statements that there is a dispute; Respondent’s memo then relies on facts by citing to an
attached affidavit without lining the factual material up with Petitioner’s statement of disputed
facts. This presentation, complicated by Respondent’s representation that Mr. McLaughlin has
been on segregated status on a variety of grounds for periods that are not clearly specified in the
facts, makes it extremely difficult to determine whether or not the record is complete and
whether or not there are material facts in dispute.

        As to legal issues, this case is not before the court for a de novo decision on whether Mr.
McLaughlin should be segregated. This is a Rule 75 case. The court’s role is to review the
governmental action at issue and, to the extent that it is reviewable, determine its lawfulness.
While the record is clear that Mr. McLaughlin is in administrative segregation, it is unclear
which due process hearing and resulting segregation decision is the operative one; the record
includes indications of several. It is also unclear what occurred at various hearings or whether
Mr. McLaughlin appealed outcomes. If the case is before the court for review of the DOC’s 7,
30, or 60-day review decisions, it is unclear whether Mr. McLaughlin exhausted administrative
remedies by filing a grievance before seeking review in this court. Again, while documents
showing the outcome of decisions are in the record, the full record of administrative proceedings
appears not to be. This makes it difficult to analyze Petitioner’s claim that the DOC has not
followed required procedural requirements. Without an organized factual record, there is also an
insufficient basis on which to consider Respondent’s claim that the Petitioner has no right to
require compliance with the terms of the DOC directive.

       In short, the record is too incomplete for the court determine that either party is entitled to
summary judgment. It consists almost entirely of some documentation of DOC decisions but
includes little to none of the administrative record upon which any particular decision was made.

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The findings, to the extent required, that ostensibly support continued segregation at the
numerous reviews are sparse and, in one case, nonexistent. In short, the record is insufficient for
the court to determine what, if any, procedural rights in Directive #410.03 apply to this case and
whether they have been satisfied or whether some additional process is due.

         The court also declines to address constitutional due process as a separate matter at this
time. Under either the United States or Vermont constitution, consideration of Mr.
McLaughlin’s due process rights would have to include some examination of the conditions of
his confinement in segregation. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (protected
liberty interest sufficient to warrant procedural protections limited to freedom from “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life”); Parker v.
Gorczyk, 170 Vt. 263, 273 (1999) (rejecting Sandin and instead requiring “a fact-sensitive
examination of the particular circumstances involved, including consideration of the nature and
significance of the interest at stake, the potential impact of any decision resulting in a deprivation
of that interest, and the role that procedural protections might play in such a decision”). Except
for Mr. McLaughlin’s assertion in argument that segregation is the equivalent of torture, the
record is silent with regard to the actual conditions of Mr. McLaughlin’s confinement. Neither
the label “segregation” nor the duration of a status imposing unknown conditions alone is
sufficient to evaluate due process rights.




                                              ORDER

        For the foregoing reasons, Mr. McLaughlin’s motion for summary judgment is denied. A
status conference will be scheduled.

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


                                                       _____________________________
                                                       Mary Miles Teachout,
                                                       Superior Judge




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