Gero v. Davis, No. S0513-12 CnC (Crawford, J., Nov. 1, 2012)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Chittenden Unit                                                                                        Docket No. S0513-12 CnC


RICHARD GERO
     Plaintiff

           v.

CARL DAVIS, SUPERINTENDENT
     Defendant

                                           DECISION ON MOTION TO DISMISS

        Plaintiff Richard Gero is a prisoner in the custody of the Vermont Department of
Corrections (DOC) serving a ten- to twenty-year sentence after pleading to burglary, assault and
robbery with a weapon, simple assault, and violations of conditions of release, all stemming from
events in early November 2002. Mr. Gero seeks Rule 75 review of the DOC’s action terminating
him from the cognitive self-change (CSC) program. Mr. Gero’s minimum release date is
November 4, 2012, but his termination from the CSC program delays his potential release.

        Defendant Andrew Pallito1 moves to dismiss pursuant to V.R.C.P. 12(b)(1), arguing that
the Department of Corrections’ programming decisions are not reviewable under Rheaume v.
Pallito, 2011 VT 72, 190 Vt. 245. Mr. Gero opposes the motion, arguing that Rheaume does not
permit the DOC to eject a person from programming for any reason it chooses (or no reason at
all), and that his termination from the CSC program was so arbitrary that it amounts to an
extreme abuse of discretion. Defendant maintains that Rheaume forecloses review of all
programming decisions, regardless of how extreme that abuse might be. Emily Tredeau of the
Prisoners’ Rights Office (PRO) represents Mr. Gero. Assistant Attorney General David McLean
represents Commissioner Pallito.

                                                             BACKGROUND

        Mr. Gero alleges that, on October 12, 2011, corrections staff informed him that he would
not be permitted to continue in the CSC program unless he could prove that he did not put a
knife to the victim’s throat in the course of the 2002 burglary. In response, Mr. Gero apparently
supplied Brattleboro Detective Michael Gorman’s November 7, 2002 affidavit of probable cause.
In the affidavit, Detective Gorman recited statements made by witnesses who indicated that two
masked men entered the apartment next to Mr. Gero’s. One victim stated that she was in bed
sleeping when someone jumped on top of her, put a knife to her throat, and asked where the
money was. Detective Gorman stated that it was his belief, through investigation, that Mr.

1
  Mr. Gero’s complaint names only Superintendent Carl Davis as the defendant. However, Corrections
Commissioner Andrew Pallito has waived service of process and is defending this case. See Waiver of Service
(filed May 31, 2012).
Gero’s accomplice, Jason Thayer, was the individual who jumped on top of the sleeping victim
and put a knife to her throat. Detective Gorman also recounted Mr. Gero’s statement that he
took Mr. Thayer to the apartment to obtain drugs, that Mr. Thayer rushed and tackled the kids in
the apartment as soon as the door opened, and that Mr. Gero left as soon as he figured out what
Mr. Thayer was up to.

        Mr. Gero alleges that he filed an informal complaint with Superintendent Davis on or
about October 13, 2011, but that Mr. Davis refused to respond to the grievance. After a meeting
held on or about October 18, 2011, corrections staff determined that Mr. Gero should be
terminated from the CSC program. In a “Notice of Suspension/Termination” dated October 24,
2011, corrections staff stated their reason for that action was that the CSC program requires
participants to candidly acknowledge and describe their past criminal and violent behaviors, and
that Mr. Gero had repeatedly represented himself as a non-contributory bystander during the
events of the crime. The corrections staff believed that Mr. Gero had consistently assigned all
responsibility for the crime to his accomplice, Jason Thayer. They concluded that Mr. Gero’s
“consistent misrepresentation of his behaviors during his major crime renders him ineligible for
participation in the CSC program.”

       It is unclear from the complaint whether Mr. Gero formally appealed his termination
from the CSC program to the superintendent.2 He does allege that he met with Superintendent
Davis on January 10, 2012, and that at the meeting Mr. Davis told Mr. Gero to bring his case to
court. Mr. Gero seeks an order that would permit him to return to the CSC program without
having to take responsibility for something he maintains that he did not do.

                                                    ANALYSIS

        In Rheaume v. Pallito, the Supreme Court held that an inmate may seek Rule 75 review
to challenge his designation as a “high risk” sex offender, since such review is expressly granted
under 13 V.S.A. § 5411b(b). 2011 VT 72, ¶ 4. The Court also held, however, that “particular
programming requirements promulgated after that designation becomes final are a matter of
DOC discretion and as such are nonreviewable under Rule 75.” Id. ¶ 11. The Court reasoned
that none of the extraordinary writs provided an avenue for a Rule 75 appeal, and specifically
rejected the writ of mandamus because “[p]etitioner has no pre-existing right to a change in his
programming requirements.” Id. ¶ 7 (citing Grout v. Gates, 97 Vt. 434, 453 (1924)). The
Court’s mandate was, in pertinent part, to affirm “as to the determination that programming
requirements are not reviewable under Rule 75.” Id. ¶ 11.

        Rheaume involved a decision about whether the prisoner was required to complete both
the CSC program and the Vermont Treatment Program for Sex Abusers. See id. ¶¶ 3, 11
(describing the DOC’s discretion as the discretion “to determine what mode of treatment best
serves individual inmates”). Similarly, the Supreme Court’s opinion in Holcomb v. Pallito—not
cited by either party here—involved a challenge to the DOC’s decision to require the prisoner to
participate in and complete the CSC program. See No. 2011-316 (Vt. Jan. 26, 2012)
(unpublished mem.), available at http://www.vermontjudiciary.org/d-upeo/Microsoft%20


2
    Defendant does not argue, however, that Mr. Gero failed to exhaust his administrative remedies.

                                                           2
Word%20-%20eo11-316.pdf. This case, by contrast, involves the DOC’s decision to terminate a
prisoner from a program.

        The court concludes that, while the DOC’s discretion to place a prisoner in a particular
program cannot be challenged,3 neither Rheaume nor Holcomb foreclose a challenge that alleges
that the DOC abused its authority in terminating a prisoner from a program. As the Supreme
Court has recently stated, mandamus is available to review discretionary acts for abuse:

        The purpose of mandamus is generally to require a public official or body to
        perform a simple ministerial duty imposed by law, although it may be available to
        enforce even discretionary duties “[w]here there appears, in some form, an
        arbitrary abuse of the power vested by law in an administrative officer . . . which
        amounts to a virtual refusal to act or to perform a duty imposed by law.”

Ahern v. Mackey, 2007 VT 27, ¶ 8, 181 Vt. 599 (mem.) (quoting Sagar v. Warren Selectboard,
170 Vt. 167, 171 (1999)). Prisoners have no pre-existing right to any change in their
programming requirements, Rheaume, 2011 VT 72, ¶ 7, but once they are in a program they do
have a right to be free from arbitrary abuses of power that would terminate them from the
program. It would be anomalous to conclude that the Commissioner’s statutory authority and
discretion with regard to establishing inmate treatment programs—see 28 V.S.A. § 102—is so
broad that it insulates from review even an extreme abuse of discretion unrelated to selecting an
appropriate program for a particular inmate, such as a decision to terminate an inmate’s
participation in a program based solely on personal animus. Rheaume and Holcomb do not so
hold, and the court declines to read them that broadly.4 The court expresses no opinion at this
time as to the merits of Mr. Gero’s claim.

                                                    ORDER

        Defendant’s motion to dismiss for lack of subject-matter jurisdiction is denied.

Dated at Burlington this ___ day of October 2012.

                                                                      _________________
                                                                      Geoffrey Crawford
                                                                      Superior Court Judge




3
 The Rheaume Court did not elaborate on what sorts of “programs” fall within the DOC’s unreviewable discretion.
The Court’s decision was focused on established treatment programs with legitimate penological purposes.
4
 Subsequent to the completion of the parties’ briefing on the Commissioner’s motion to dismiss, the Washington
Superior Court came to the opposite conclusion in Inman v. Pallito. There, the court held that Rheaume and
Holcomb are indistinguishable from cases involving decisions to terminate an inmate from a program, and that all
DOC decisions about programming are unreviewable. No. 287-4-12 Wncv (Oct. 10, 2012) (Bent, J.), appeal
docketed No. 2012-382. For the reasons above, this court respectfully disagrees and does not find Inman to be
persuasive.

                                                        3
