Boyd v. Pallito, No. 205-3-11 Rdcv (Teachout, J., July 2, 2012)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Rutland Unit                                                                               Docket No. 205-3-11 Rdcv


ROBERT BOYD,
    Plaintiff

v.

ANDREW PALLITO, Commissioner, Vermont Department of Corrections,
    Defendant

                                                DECISION
                                    Cross Motions for Summary Judgment

        This case calls for a legal interpretation of a Department of Corrections Policy
Directive related to a prison superintendent’s authority to order a new disciplinary
hearing. Both the petitioner, a prisoner in custody of the DOC, and the Commissioner
have filed motions for summary judgment. Oral argument on the cross motions for
summary judgment was held March 8, 2012. Plaintiff was represented by Patricia M.
Lancaster, Esq. Defendant was represented by David McLean, Esq.

        The facts pertinent to this motion are not in dispute. Following an incident in
prison that was videotaped, Mr. Boyd was charged with a Major A01E Disciplinary
Report for assaulting another inmate with a chemical substance by spraying cleaning
fluid into his cell. A disciplinary hearing was held at which the Hearing Officer
concluded that Mr. Boyd was not guilty of the AO1E offense for which he was charged,
but was guilty of a lessor included offense, Major B#21. The Hearing Officer described
in his determination that the video did not show the chemical made contact with the
victim, that the victim delayed reporting, and that the victim has a history of false
accusations. The Hearing Officer sentenced Mr. Boyd to twelve days of disciplinary
segregation.

        Following DOC procedures, a three member Disciplinary Committee reviewed
the result of the disciplinary hearing. The Disciplinary Committee, by a two to one
margin, upheld the findings and the sanction of the Hearing Officer. Upon further review
by the Superintendent, also required by DOC procedures, the Superintendent reversed the
determination of the Hearing Officer and ordered a new hearing on the Major A01E
charge.

       A second hearing was held at which the Hearing Officer found Mr. Boyd guilty of
the more serious Major A01E charge. Mr. Boyd was sentenced to twenty days of
segregation. The Disciplinary Committee and the Superintendent both upheld this second
determination.
        Mr. Boyd filed a petition with this Court seeking review of the procedure by
which the result of the first disciplinary hearing was overturned and he received a more
serious violation and sanction upon rehearing, which could affect eligibility for prison
programs. Mr. Boyd specifically argues that finding of guilt as to the Major A01E charge
and the imposition of a greater sanction at the second hearing violated his right to due
process under both the U.S. and Vermont Constitutions. Mr. Boyd seeks to remove the
conviction for the Major A01E charge from his record.

       Mr. Boyd also claims that the Department of Corrections failed to follow their
own procedures in reviewing the result of the first hearing and in ordering a second
hearing. The relevant portion of portion of the administrative directive governing the
inmate disciplinary system reads as follows:

       The Superintendent will, on their [sic] own motion, 1) support the Disciplinary
       Committee’s decision, 2) reverse the decision, 3) order a new hearing, or 4)
       modify the sanction imposed, whenever such action is warranted by the record,
       Disciplinary Hearing Report.

       •       Under such a review, the Superintendent cannot find a more serious
               violation nor impose a harsher sanction than recommended by the
               Disciplinary Committee.

DOC Policy Directive 410.01(8)(d).

       The Commissioner argues that while the Superintendent himself cannot find a
more serious violation nor impose a harsher sanction, there is no limitation on the
Superintendent’s authority to order a new hearing and that if the new hearing happens to
produce a finding of a more serious violation or result in a harsher sanction, this result
does not run afoul of the policy directive.

        The language quoted above comes from a section entitled “Disciplinary
Committee,” which outlines the procedure by which first the Disciplinary Committee and
then the Superintendent will review the decision of the Hearing Officer. Read in context,
the phrase “Under such a review” clearly refers to the entirety of this review process and
not simply to the Superintendent’s potential choice to impose a sanction himself. Thus,
the option to order a new hearing, as one of the four options the Superintendent has
available under the review process, is equally subject to the limitation that “the
Superintendent cannot find a more serious violation nor impose a harsher sanction than
recommended by the Disciplinary Committee.”

       This is the most logical reading of the directive. Otherwise, the Superintendent
could always navigate around the prohibition on finding a more serious violation or
imposing a harsher sanction by choosing to order a new hearing rather than making a
determination himself. This would create a scenario where the Superintendent, as the
head of the hierarchical prison discipline structure, could continue to order new hearings



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until the desired result is achieved. An interpretation that allows a superintendent to do
indirectly what he could not do directly is not a reasonable interpretation of the directive.

        This interpretation does not eliminate a superintendent’s authority to order a new
hearing when warranted by the facts, such as when the record shows that there was
inadequate notice or lack of a waiver of appearance or some defect in the process. The
record in this case shows no defect that would support the need for a new hearing on such
grounds.

       Rule 75 review of governmental action is available to address legal issues
necessary to determine whether a governmental body has followed its own administrative
requirements. The Court concludes that the Policy Directive was not properly interpreted
and applied. Where there was no showing of any defect in the first hearing process that
required the remedy of a new hearing and no showing of any other grounds for the
hearing process to be repeated, a superintendent does not have authority to order a new
hearing that results in a more serious violation and sanction than was found at the first
hearing.

      Mr. Boyd is entitled to his requested relief, namely that the conviction for the
Major A01E charge be stricken, and the conviction for the Major B#21 reinstated.


                                          ORDER

       Plaintiff’s Motion for Summary Judgment is granted.

       Defendant’s Motion for Summary Judgment is denied.

       Dated this ___ day of June, 2012.


                                                                 _____________________________
                                                                 Hon. Mary Miles Teachout
                                                                       Superior Court Judge




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