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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-138

                                        AUGUST TERM, 2015

 Dylan Cady                                            }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Orleans Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito, Commissioner,                         }    DOCKET NO. 130-5-14 Oscv
 Department of Corrections
                                                            Trial Judge: Timothy B. Tomasi

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

        Plaintiff filed a request for review of governmental action under Vermont Rule of Civil
Procedure 75 after the Department of Corrections (DOC) imposed a disciplinary violation for
attempting to introduce tobacco into a correctional facility. Plaintiff appeals the trial court’s
order granting summary judgment to defendant. On appeal, plaintiff argues that there is
insufficient evidence to support the violation. We reverse and remand.

        The following facts are undisputed. Plaintiff is an inmate in the custody of the DOC at
the Northern State Correctional Facility in Newport. On April 19, 2014, a visitor arrived at the
correctional facility to visit plaintiff, and, following a search, a correctional officer discovered
tobacco wrapped in cellophane in the visitor’s sock. The visitor left the facility, and plaintiff was
cited for attempting to introduce tobacco into a correctional facility. Two days later DOC staff
intercepted a letter to plaintiff from his father stating: “I’m telling you im gonna send a little
something with monster, you better be greased and ready to violate yourself.” Following a
hearing, plaintiff was found guilty of the disciplinary violation based on the visitor’s hidden
contraband and the letter from his father. Plaintiff appealed to the facility superintendent, who
upheld the conviction. Plaintiff then filed this Rule 75 complaint.

        The parties cross-moved for summary judgment. Among other things, plaintiff argued
that the evidence was insufficient to support an inference that he had attempted to introduce
tobacco into the facility because the letter did not arrive until after the visitor came to the facility
and there was no evidence that plaintiff was aware that the visitor would bring tobacco. The
court granted summary judgment to defendant. The court explained that the fact that a visitor
arriving to see plaintiff had tobacco secreted on his person was at least circumstantial evidence
that plaintiff had knowledge of and participated in a plan to introduce tobacco into the
correctional facility. The court explained that the letter provided additional circumstantial
evidence of plaintiff’s involvement. The court concluded that this was some evidence of
plaintiff’s attempt to introduce tobacco into the facility and sufficient to support the violation.
       On appeal, plaintiff contends that the trial court erred in granting summary judgment to
defendant because the evidence does not indicate that he was involved in the plan to introduce
tobacco into the facility and therefore that he lacked the requisite intent.

       “In reviewing a grant of summary judgment, this Court uses the same standard as the trial
court.” Madden v. Omega Optical, Inc., 165 Vt. 306, 309 (1996). Summary judgment is
appropriate where there are no issues of material fact and a party is entitled to judgment as a
matter of law. V.R.C.P. 56(a). “Additionally, when reviewing administrative action by the DOC
under V.R.C.P. 75, we will not interfere with the DOC’s determinations absent a showing that
the DOC clearly and arbitrarily abused its authority.” King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt.
220. When reviewing an inmate disciplinary decision, this Court “need find only that there was
‘some evidence’ in order to uphold a conviction.” Id. (quoting LaFaso v. Patrissi, 161 Vt. 46, 49
(1993)). This standard is met when “there is any evidence in the record that could support the
conclusion reached by the disciplinary board.” Id.

        Plaintiff argues that the DOC failed to support the disciplinary violation because to prove
that he attempted to introduce tobacco, the DOC was required to meet the criminal attempt
standard. See 13 V.S.A. § 9(a) (listing elements of attempt, including “an act toward the
commission” of an offense); see State v. Synnott, 2005 VT 19, ¶ 22, 178 Vt. 66 (“An attempt
requires intent to commit a particular crime and an overt act designed to carry out that intent.”
(quotation omitted)). The DOC responds that because prison disciplinary proceedings are not
criminal prosecutions, the definition of attempt is defined by the administrative directive and not
by the criminal law. A DOC directive defines “attempt” as conduct that “is likely to result in an
act prohibited by this directive.”

        We need not reach the question of whether the criminal definition of attempt applies
because we conclude that under either definition of attempt DOC failed to meet the “some
evidence” standard. The disciplinary violation charged in this case was that plaintiff attempted
to introduce tobacco “onto the grounds of a correctional facility.” The evidence does not support
even an inference that plaintiff attempted to introduce tobacco into the facility. The fact that a
visitor arriving to see plaintiff had tobacco on his person could support an inference that the
tobacco was intended for plaintiff, but does not support an inference that plaintiff knew in
advance that the tobacco would be brought to him or that he invited, encouraged, or in any way
participated in the attempt to introduce it. The visitor did not provide a statement regarding
plaintiff’s involvement, and there was no evidence to show that plaintiff was expecting it.

        Further, the most that can be inferred from plaintiff’s father’s letter is that plaintiff’s
father intended to send tobacco to plaintiff. Plaintiff did not receive the letter before the events
giving rise to this disciplinary violation, and so the letter in itself does not support an inference
that plaintiff knew to expect the delivery. Moreover, the language of the letter, if anything,
indicates that plaintiff did not know the tobacco would arrive. The letter is phrased as providing
plaintiff with notice of his father’s actions; it does not imply that plaintiff already knew about the
plan, or that he had requested, encouraged, or in any way participated in his father’s actions.
Therefore, even under the narrow standard applied to review of DOC disciplinary violations, we
conclude that the DOC failed to provide some evidence of defendant’s guilt. The trial court




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therefore erred in granting DOC summary judgment, and denying plaintiff’s summary-judgment
motion.

      Reversed and remanded with instructions to grant summary judgment to plaintiff.

                                            BY THE COURT:


                                            _______________________________________
                                            John A. Dooley, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice

                                            _______________________________________
                                            Beth Robinson, Associate Justice




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