Smith v. Pallito, No. 184-7-12 Cacv (Teachout, J., May 22, 2013)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                                   CIVIL DIVISION
Caledonia Unit                                                                                              Docket # 184-7-12 Cacv


Albert Smith
      Plaintiff

      v.

Andrew Pallito, Commissioner,
Vermont Department of Corrections
     Defendant


                                                      DECISION
                                          Cross Motions for Summary Judgment
        Plaintiff Albert Smith is an inmate in the custody and control of the Commissioner of the
Vermont Department of Corrections (DOC). He seeks review of his conviction for violating a
disciplinary rule, arguing that because the officer who reported the violation was absent from his
disciplinary hearing, his due process rights were violated and his conviction should be expunged.
Both Mr. Smith and the DOC have moved for summary judgment.

                                                                      Facts
        The following facts are undisputed by the parties. On June 8, 2012, Mr. Smith was an
inmate at Northeast Correctional Complex in St. Johnsbury. His cell was selected for a random
search that day by correctional officers Meaghan Jeffrey and Bruce Boucher. In the pocket of
some pants that were in the cell, the officers discovered a small amount of a substance they
believed to be marijuana. Officer Jeffrey asked who owned the pants, and Mr. Smith said that the
pants were his. The officers tested the substance and found that it contained the active ingredient
in marijuana. They reported Mr. Smith for violating major disciplinary rule A-19, which
prohibits possession of marijuana in the facility.
        On his notice of hearing form, Mr. Smith requested that Officer Jeffrey be present at his
disciplinary hearing. However, Officer Jeffrey did not attend the hearing. The hearing report
form does not indicate why she was absent.
        At the hearing, Officer James Hurley presented as evidence the written reports of the
charging officers, the report of the investigating officer, a chain of custody document and two
photographs of the marijuana discovered in Mr. Smith’s cell. Mr. Smith stated briefly that he
does not smoke marijuana and denied introducing the marijuana to his shared cell. He said that
when Officer Jeffrey asked him if the pants were his, he mistakenly thought they were. The
entire recorded portion of the hearing lasted approximately five minutes. Neither Mr. Smith, his
hearing assistant, nor the hearing officer mentioned or explained why Officer Jeffrey was absent.
No witnesses testified except for Mr. Smith.
        The hearing officer found Mr. Smith guilty of possession of marijuana. He sentenced Mr.
Smith to 14 days of early lockup and suspended his visiting privileges for 30 days. The
disciplinary committee affirmed the conviction.
        Mr. Smith timely appealed to the facility superintendent on the grounds that he
specifically requested that Officer Jeffrey be present and she failed to attend. He stated that he
would have asked her about the pants she found, as he learned that they were size 34-32 and he
wears size 31-30. The superintendent denied his appeal on the grounds that Mr. Smith failed to
ask for a continuance at the hearing, stating that “not every witness is reasonably available and
therefore their written testimony will be used.” Mr. Smith then filed suit in this Court for review
of the DOC’s decision pursuant to V.R.C.P. 75.


                                        Conclusions of Law
         As a threshold matter, the fact that Mr. Smith has already served his punishment does not
render moot his request for expungement of the disciplinary violation from his record. Mr. Smith
is entitled to have an institutional record free from improperly obtained findings of disciplinary
violations. See LaFaso v. Patrissi, 161 Vt. 46, 51–52 (1993) (holding that prisoner has “highly
important interest” in not being unjustly disciplined, and discussing direct and indirect
consequences of disciplinary record); Pena v. Goord, 694 N.Y.S.2d 787, 788 (N.Y. App. Div.
1999) (prisoner’s appeal from finding that he violated disciplinary rule not moot even though
prisoner had been released from custody).
       Rule 75 review of governmental action is available to address legal issues necessary to
determine whether a governmental body has followed the requirements of law and its own duly
adopted administrative requirements.
       The issue in this case is whether the DOC improperly denied Mr. Smith the right to
confront the officer who reported him for possession of marijuana. Under Vermont law, inmates
charged with violating disciplinary rules have the right to confront the reporting officer at a fact-
finding hearing, “subject to reasonable rules.” 28 V.S.A. § 852(b)(2). Inmates also have the
right—subject to reasonable rules—to call and question any available witness who has relevant
knowledge of the incident. 28 V.S.A. § 852(b)(3). Officer Jeffrey was both the reporting officer
and a witness with relevant knowledge in this case.
       The DOC has created rules to administer disciplinary hearings. If a witness is not
available to attend a scheduled hearing, the inmate may request a continuance. Vt. Admin. Code
12-8-13:2(c). In addition, DOC Policy Directive 410.01 § 6(c) states:
       If any requested witness(es) (including the Reporting Officer) did not testify or
       did not appear at the hearing for any reason, the Hearing Officer will state the
       reasons why on the hearing recording and in the written report, noting in the
       report the forms of alternative testimony used. Witnesses may provide testimony
       using alternate forms of communication when they cannot be present at the
       hearing (e.g. . . . written statement).



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The hearing officer in this case did not investigate or explain why Officer Jeffrey was absent
either at the hearing or in his written report. No effort was made at the hearing to obtain Officer
Jeffrey’s testimony. Moreover, the hearing officer did not state what alternative forms of
testimony were used, despite the fact that there were designated spaces on the hearing report
form for this specific information.
        Policy Directive 410.01 § 6(c) is not an empty formality; it defines the procedure to be
followed to implement the prisoner’s procedural rights as specifically required by the statute:
“The inmate shall have an opportunity subject to reasonable rules to confront the person bringing
the charge.” 28 V.S.A. § 852(b)(2). A prisoner charged with violating a disciplinary rule has the
right to confront the reporting officer and to call available witnesses subject to DOC rules, and
DOC rules require that the hearing officer must have a reasonable basis for denying that right.
Requiring the hearing officer to note and explain the reasons for the absence of a witness helps to
create a record for appeal and also gives the inmate a chance to object and ask for a continuance.
“A prisoner has a constitutionally protected interest in disciplinary hearings that are not so
lacking in procedural safeguards that they create substantial doubt that these prisoners committed
the offenses for which they were disciplined.” Herring v. Gorczyk, 173 Vt. 240, 245 (2001)
(quotation omitted).
        Ensuring compliance with the statutory requirements of 28 V.S.A. 852 and carrying out
duly adopted procedural rules are not acts about which a hearing officer has discretion. They are
simple and definite ministerial duties. Rule 75 review is available “so long as review would
have been available under any one of the extraordinary writs, such as mandamus, scire facias,
prohibition, quo warranto, and certiorari.” Vt. State Emps.’ Ass’n v. Vt. Criminal Justice
Training Council, 167 Vt. 191, 195 (1997). “Generally, the purpose of mandamus is to require a
public officer to perform a simple and definite ministerial duty imposed by law.” Id.
        This case underlines the importance of the rule. Because there is no oral or written record
explaining Officer Jeffrey’s failure to attend the hearing, the Court cannot determine if her
absence was legitimate. There is no indication that Mr. Smith knew prior to the hearing that
Officer Jeffrey would be absent, such that he would have been able to request a continuance
ahead of time. While it is true that he could have orally requested a continuance, his failure to do
so does not excuse the hearing officer’s failure to follow the rules. In sum, there is no
justification for the DOC’s denial of Mr. Smith’s right to call and confront Officer Jeffrey. Under
the circumstances, the Court concludes that the DOC’s failure to comply with its own rules
violated Mr. Smith’s right to due process. While a prisoner is not entitled to the “full panoply of
rights” accorded to criminal defendants, “what remains of the prisoner’s due process rights may
not be dismissed absent a more compelling justification.” Herring, 173 Vt. at 248.
        As Mr. Smith has already served the punishment, it does not make sense to remand the
case for a new hearing at which proper procedures are followed. Since the DOC’s action
violated Mr. Smith’s rights to call witnesses and confront the officer who reported him, remedies
are limited; the Court finds that expungement of the disciplinary record is warranted. See
Herring, 173 Vt. at 249.




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                                           ORDER
       For the foregoing reasons,
       1.   Plaintiff’s motion for summary judgment is granted,

       2. Defendant’s motion for summary judgment is denied, and

       3. The DOC is ordered to expunge Mr. Smith’s disciplinary conviction of June 14, 2012.


Dated at St. Johnsbury, Vermont this 22nd day of May, 2013.


                                                          _________________________
                                                          Mary Miles Teachout
                                                          Superior Judge




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