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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-225

                                      SEPTEMBER TERM, 2012

 Nina Keus                                             }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito, Commissioner of the                   }    DOCKET NO. S345-11 Fc
 Department of Corrections                             }

                                                            Trial Judge: Martin Maley

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

        Plaintiff, an inmate committed to the custody of the Commissioner of Corrections,
appeals from a summary judgment in favor of the State. She contends the trial court erred in
upholding a disciplinary violation relating to drug testing because she was not given notice of the
testing protocol. We reverse.

         The undisputed material facts may be summarized as follows. Plaintiff was incarcerated
at the Northwest State Correctional Facility in June 2011. Shortly thereafter, she was subjected
to drug screening by a correctional officer who provided her with an eight ounce glass of water
and informed her that she had two hours to provide a urine sample. Plaintiff’s first attempt
failed. A second attempt yielded a sample of seventeen milliliters. A third attempt produced ten
milliliters. Through the course of the allotted two hours, plaintiff produced a total of 27
milliliters. Relying on a prison regulation that required twenty milliliters for testing and
provided that “failure to provide an amount sufficient for testing” was deemed a refusal to
provide a sample—a basis for discipline—the correctional officer cited plaintiff for a violation
on the basis that she had failed to provide a single sample of at least twenty milliliters.

          After plaintiff’s administrative appeal was denied, she filed a Rule 75 complaint. The
superior court denied the State’s motion to dismiss and considered the parties’ cross-motions for
summary judgment.1 In her motion, plaintiff argued that the disciplinary violation was
“unlawful” because she had “provided a sample totaling 27 ml of urine within” the required time.
The State’s opposition and cross-motion for summary judgment explained that the prison’s
testing laboratory requires a single sample of at least twenty milliliters and that combining


         1
          The administrative appeal was denied on the ground that plaintiff had signed a waiver
admitting guilt, and the State moved to dismiss her Rule 75 complaint partly on this basis and
partly on the basis that the complaint was untimely. Plaintiff opposed the motion, alleging that
the waiver was coerced and that the delay was due to excusable neglect. The trial court ruled in
plaintiff’s favor on these issues and denied the motion to dismiss. The State has not filed a
cross-appeal challenging this ruling.
samples to produce the minimum amount would interfere with test reliability.2 In her response to
the State’s opposition, plaintiff asserted that the laboratory rules were not a part of the prison
regulations, that there was no evidence that she or other inmates were informed of the single-
sample rule, and that she could not “be held liable for infractions for which she has no notice.”

        The court ruled in favor of the State, citing the general deference accorded to the DOC’s
interpretation of its own regulations, Loveland v. Gorczyk, 173 Vt. 501, 501 (2001) (mem.), and
concluding that the single-sample requirement was a reasonable one “to ensure a valid sample.”
This appeal followed.

       Plaintiff’s sole claim on appeal is that she cannot be disciplined for violating a rule of
which she had “no notice or knowledge” consistent with due process.

       We review the superior court’s summary judgment ruling de novo, applying the same
standard as the trial court. King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt. 220 (2003). In particular,
we will affirm summary judgment where the record clearly indicates that there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law. Id.;
V.R.C.P. 56(c).

         We should be clear at the outset that the reasonableness of the DOC’s process for
managing and evaluating plaintiff’s urine sample, and its interpretation of its regulations as it
relates to the DOC’s procedures for collecting and processing urine samples are not directly at
issue. If the challenge here was that DOC should have sent the combined samples from two
separate attempts within the two-hour window to its testing lab, we would affirm the
Department’s position. King, 2003 VT 34, ¶ 11 (“Setting appropriate testing standards and
procedures is within the expertise of the DOC, and we show great deference to agency
administrators in these matters.”). The State’s evidence on summary judgment establishes
without contradiction that the lab that tests the DOC’s urine specimens requires that the 20
milliliter minimum urine sample be collected from a single output of urine, and that when a
sample is produced that is less than 20 ml, the staff collector must take collection of the partial
specimen and dispose of it.

        The issue presented on this appeal is whether plaintiff was on sufficient notice of the
“single-output” requirement to allow for discipline on account of her failure to produce the
required 20 ml within the two-hour window in a single output. Before a prisoner can be charged
with violating prison rules, the prisoner must have notice of those rules. See Reeves v. Pettcox,
19 F.3d 1060, 1061 (5th Cir. 1994) (“[I]t is a violation of due process to punish inmates for acts
which they could not have known were prohibited.”); Forbes v. Trigg, 976 F.2d 308, 314 (7th
Cir. 1992) (“Due process requires that inmates receive fair notice of a rule before they can be
sanctioned for its violation.”); Frazier v. Coughlin, 850 F.2d 129, 130 (2d Cir. 1988) (inmate
who was disciplined for violation of prison rules prohibiting otherwise lawful conduct stated
claim for relief “if [he] can prove that he lacked notice of the rules”). Even if, as the State
argues, prison regulations need not give notice of what conduct is prohibited in prison with the
same degree of specificity required by due process for notice of conduct punishable by trial and
imprisonment, a prisoner is entitled to some notice that otherwise lawful and nondisruptive
conduct is subject to discipline. Rios v. Lane, 812 F.2d 1032, 1039 (7th Cir. 1987) (due process


       2
          The State also argued that plaintiff had no protected “liberty interest” that would entitle
her to challenge the disciplinary violation. The trial court rejected this argument, and the State
has not challenged the ruling on appeal.
                                              2
imposes a “continuing requirement that inmates be free to steer away from prohibited conduct,
unentangled by the trappings of poorly delineated prison regulations”).

        In this case, the DOC undisputedly notified plaintiff orally that she had two hours to
provide an amount of urine sufficient for testing. Plaintiff was undisputedly on at least
constructive notice that a failure to submit to drug testing is a ground for discipline. Directive
410.01. We will assume for the sake of argument that Procedure 300.58, which provides
guidelines for drug testing of inmates at Northwest State Correctional Facility, put plaintiff on
notice that she was required to produce a minimum sample of 20 ml in order to avoid discipline.
There is no evidence in the record that suggests that plaintiff was on notice that she had to
produce the full minimum sample in a single attempt. The State acknowledges that Procedure
300.58 does not address the question of multiple outputs within the prescribed time frame and
cites no other evidence as a purported source of such notice. Rather, it argues that nothing in the
DOC procedures authorized the plaintiff to meet the minimum requirements through multiple
attempts within the prescribed time frame.

        The State’s argument misapprehends plaintiff’s right to fair notice. The absence of
express authorization by the DOC for conduct that is unobjectionable by any standard of
common sense, and that is only proscribed as a result of technical requirements of the drug-
screening process unbeknownst to plaintiff, as well as DOC’s critical omission of this key
undocumented requirement of a single “output” in its instructions to plaintiff to produce a urine
sample within two hours, combined to deprive plaintiff of the basic fair notice to which she was
entitled.

        For that reason, we reverse the trial court’s award of summary judgment to the State, and
its denial of summary judgment to Plaintiff.

       Reversed .



                                                 BY THE COURT:


                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Brian L. Burgess, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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