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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-186

                                     SEPTEMBER TERM, 2015

 Kirk Wool                                             }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito                                        }    DOCKET NO. 579-9-14 Wncv

                                                            Trial Judge: Mary Miles Teachout

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

       Petitioner Kirk Wool appeals pro se from the trial court’s order granting summary
judgment to defendant on his complaint. Wool argues that summary judgment was inappropriate
because he provided an affidavit from an expert who stated that defendant’s actions violated a
duty of care. Petitioner also asserts that the court erred in refusing to accept his amended
complaint. Finally, petitioner argues that the court erred in construing his case as an action under
Vermont Rule of Civil Procedure 75 when the court had previously agreed that it was a civil
action seeking injunctive relief. We agree with petitioner that he was entitled to amend his
complaint as a matter of right, and thus reverse and remand for additional proceedings.

        Petitioner is incarcerated. He filed a complaint against defendant, the Commissioner of
the Department of Corrections, in September 2014, seeking injunctive relief. Petitioner alleged
that he had a long history of suffering from insomnia and severe panic attacks, and that despite
repeated requests for medical attention from someone who could provide him with psychiatric
medication, he had not received care since late April 2014. Petitioner maintained that this delay
was grossly unreasonable and that it established a claim under the Eighth Amendment to the U.S.
Constitution for gross deliberate indifference to serious mental health needs. Petitioner sought
immediate injunctive relief to enjoin defendant from continuing to deny him necessary mental
health care.

        In an October 2014 entry order, the court denied petitioner’s request for injunctive relief
“at this time.” It construed petitioner’s complaint as a request for review of governmental action
under V.R.C.P. 75. Petitioner moved for reconsideration, asserting that he had filed his
complaint as a civil action that presented an Eighth Amendment claim of deliberate indifference
to his serious mental health needs. He acknowledged that since filing his complaint, he had been
seen by a mental health provider. Nonetheless, he asserted that the action was not moot because
the delay he suffered was capable of repetition yet evading review. Petitioner asked that the
court hold a status conference. In December 2014, the court issued an entry order, checking a
box to indicate that the motion to reconsider was granted, and stating that the requested status
conference had already been held.
        In early January 2015, petitioner filed an amended complaint, purportedly as a matter of
right under V.R.C.P. 15(a) to add additional facts and a claim for damages. Defendant filed an
answer to this amended complaint. During a February 2015 status conference, the court held that
petitioner was not entitled to amend his complaint as a matter of right and that the case would
proceed on the original petition.

        By the time that petitioner filed his amended complaint, defendant had moved for
summary judgment, asserting that petitioner’s claim was moot as he had been seen by a provider
who prescribed medication. Petitioner opposed the motion, stating that he was dissatisfied with
the care that he was receiving and that the case fell within an exception to the mootness doctrine.
In support of his opposition, petitioner included an affidavit from a clinical social worker who
averred that a delay of six months before being seen by a medical prescriber was inconsistent
with the type of care that petitioner would have received outside of the prison setting. The social
worker did not assert that petitioner’s current treatment violated the standard of care.

        The trial court granted defendant’s motion for summary judgment in May 2015, after
petitioner filed his amended complaint. It stated that this was a Rule 75 action in which
petitioner claimed that he received inadequate mental health treatment. In his motion for
summary judgment, defendant had detailed the number of times that petitioner had been seen for
treatment since filing his complaint and argued that the case was moot. Defendant also asserted
that petitioner’s claim for deliberate indifference must fail for lack of evidence sufficient to meet
the legal standard. Petitioner acknowledged being provided with mental health treatment, but
disputed the sufficiency of that treatment. However, petitioner did not present any professional
expert opinion to support his claim of insufficiency of treatment. The court found that this was
not a case in which no treatment had been provided or the type of claim that could be decided
without expert evidence. Thus, because petitioner failed to provide the necessary evidence, the
court granted summary judgment to defendant. Petitioner appealed.

        We begin with petitioner’s assertion that the court erred in refusing to accept his amended
complaint, which is tied to his argument that the court mistakenly construed his complaint as a
Rule 75 complaint. Petitioner argues that this argument survives the summary judgment decision
because the amended complaint seeks damages for the six-month delay in prescribing the
medication. Petitioner maintains that he filed a “civil suit,” which the trial court acknowledged
at one point, and that he therefore was entitled to amend his complaint as a matter of right under
V.R.C.P. 15(a).

        The question of whether petitioner filed a “civil suit” or a Rule 75 complaint is critical in
resolving whether he had the right to amend his complaint. Rule 15(a) provides that:

                 A party may amend the party’s pleading once as a matter of
               course at any time before a responsive pleading is served or, if the
               pleading is one to which no responsive pleading is permitted and
               the action has not been placed upon the trial calendar, the party
               may so amend it at any time within 20 days after it is served.
               Otherwise a party may amend the party’s pleading only by leave of
               court or by written consent of the adverse party; and leave shall be
               freely given when justice so requires.



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        Under Rule 75(b), “[n]o responsive pleading need be filed unless required by statute or
by order of the court.” Defendant argues that on October 17, 2014, the trial court ordered that
the matter would be treated as a complaint under Rule 75 for review of governmental action.
Thus, defendant asserts that petitioner’s right to amend his complaint expired, at the latest,
twenty days after the court’s order on November 6, 2014. Defendant acknowledges that the
court later granted petitioner’s motion to reconsider as to the nature of the complaint that he
filed, but states that petitioner cites no authority for the proposition that this ruling would
“revive” petitioner’s right under Rule 15(a) to amend his complaint as of right.

        It is evident that petitioner sought only injunctive relief in his initial complaint; he
specifically disavowed that he was seeking any money damages. The court construed the action
as one brought under Rule 75. In his motion for reconsideration, petitioner stated that he had
filed this as a “civil action” that presented a claim under the Eighth Amendment and he asserted
that “demoting this case to a Rule 75” was not proper. At that point, it did not make a significant
difference how the complaint was classified. The court issued an entry order, however,
indicating that the motion to reconsider was granted. With this ruling, petitioner could
reasonably rely on the rules governing amendments of such complaints. Under the plain
language of the rule, he had the right to amend because defendant had not yet filed a responsive
pleading. Defendant does not argue that a motion for summary judgment is a “responsive
pleading” for the purpose of Rule 15, and indeed, the law is to the contrary. See, e.g., 6 Charles
A. Wright, et al., Federal Practice and Procedure § 1483 (3d ed.) (addressing analogous federal
rule, and explaining that summary-judgment motions “are not ‘responsive pleadings’ in any
sense”). Indeed, we note that defendant filed an answer to petitioner’s amended complaint.
Petitioner was entitled to file an amended complaint, and we therefore must reverse and remand
for additional proceedings.

        We recognize that there is still an argument as to whether the affidavit filed by the social
worker demonstrates the necessary expert testimony to defeat summary judgment. The trial
court never addressed this question because it did not consider the amended complaint, and we
do not, therefore, address it here.

       Reversed and remanded.

                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Harold E. Eaton, Jr., Associate Justice




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