Carter v. Pallito, No. 177-3-14 Wncv (Teachout, J., January 5, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 177-3-14 Wncv

Bernard Carter
      Plaintiff

           v.

Andrew Pallito, Commissioner of the
Vermont Department of Corrections
     Defendant

                                         DECISION
            DOC’s Motion to Dismiss and Mr. Carter’s Motion for Summary Judgment

        In the complaint, Inmate Bernard Carter claims that the Vermont Department of
Corrections (DOC) classified him as a Level C offender without a hearing, in violation of his due
process rights, and in violation of its own regulations. The DOC has filed a motion to dismiss
for lack of subject matter jurisdiction, arguing that its discretion to classify inmates is
unreviewable and, in any event, Mr. Carter failed to exhaust his administrative remedies prior to
filing suit. Mr. Carter opposes dismissal and has filed a motion for summary judgment arguing
that (1) there is no applicable grievance process, (2) if there is, he substantially complied with it,
and (3) he should be relieved of the exhaustion requirement in this case. He also argues that
dismissal is premature because he needs an opportunity for discovery to develop his Ex Post
Facto claim. Finally, he requests that if the court otherwise is inclined to dismiss on exhaustion
grounds, it should stay (not dismiss) this case while he completes the administrative process.

        Generally, one is required to exhaust the opportunity to seek an administrative remedy
before filing suit. Rennie v. State, 171 Vt. 584, 585 (2000) (“This Court has consistently held
that when administrative remedies are established by statute or regulation, a party must pursue,
or ‘exhaust,’ all such remedies before turning to the courts for relief.”). Here, there is no dispute
that Mr. Carter initiated the general grievance process described by DOC Directive 320.01 with
regard to his Level C classification. There also is no dispute that he did not pursue the grievance
process to its conclusion, an appeal to the Commissioner.

        Mr. Carter argues first that he had no obligation to pursue an administrative remedy at all
because the directive by which he was classified, Directive 371.10 (Level C Designation for
Offenders Convicted of Listed Offenses), is silent with regard to appeals or grievances about
Level C designations. While Directive 371.10 may have been silent on administrative remedies,
the general grievance process described by Directive 320.01 was available, is not limited to
particular subject matters, and Mr. Carter actually pursued a Directive 320.01 grievance. The
lack of a more specific grievance process in Directive 371.10 has no bearing on this case.

           Mr. Carter argues that he substantially complied with Directive 320.01 because he tried
to follow it in good faith and the missing step, appeal to the Commissioner, is optional. Mr.
Carter’s good faith is not the issue. The question is whether he exhausted the grievance process.
He argues that because the directive says that one may appeal to the Commissioner, one also may
choose not to and in either event will have exhausted administrative remedies. See Directive
320.01, Procedural Guidelines § 15(b)(i) (“Offender/inmates who are dissatisfied with the
decision of the Corrections Executive may appeal to the Commissioner . . . .”) (emphasis
added)). In context, the Directive is clear, however, that one must appeal to the Commissioner to
exhaust. Id. § 15(b)(iii) (“Upon return of a Commissioner’s decision, the disposition is
considered final in regard to administrative remedy. There are no further administrative
appeals.”). Exhaustion requires the appeal to the Commissioner.

        Mr. Carter also argues that he should be exempt from the exhaustion requirement because
his appeal to the Commissioner would have been futile. Generally, the futility exception is
narrow and applies to situations in which exhaustion would have been clearly useless. See, e.g.,
Smith v. Blue Cross & Blue Shield United of Wisconsin, 959 F.2d 655, 659 (7th Cir. 1992)
(rejecting a futility exception where the result before the agency is not “certain”). The
exhaustion requirement is a “long-settled rule of judicial administration [that] serves the dual
purposes of protecting the authority of the administrative agency and promoting judicial
efficiency.” Jordan v. State Agency of Transportation, 166 Vt. 509, 512 (1997). The burden is
on the party seeking to avoid exhaustion to prove that an exception applies. Id. Mr. Carter has
shown only that the DOC has provided no relief so far and that it has not provided, under a claim
of confidentiality, some documents that he has sought. These circumstances are not exceptional
and they do not show that an appeal to the Commissioner would have been clearly useless.
Applying the exception in this case would undermine the salutary purposes of the requirement.

        Mr. Carter also seeks to avoid exhaustion because he is trying to address an important
constitutional issue, an Ex Post Facto claim, and for the same reason the court should defer on
dismissal to allow time for discovery. The court rejects both arguments. There is no Ex Post
Facto claim in the complaint, no motion to amend the complaint to add such a claim, no showing
that administrative remedies with regard to such a claim were exhausted, and no compelling
argument that such a claim would warrant judicial review prior to exhaustion.

        The court also rejects Mr. Carter’s request for a stay pending exhaustion. Exhausting
administrative remedies while this lawsuit is pending, even if stayed, would undermine rather
than reinforce the salutary purposes of the exhaustion requirement.

        Because dismissal is required for lack of exhaustion, the court will not address the DOC’s
alternative argument that its classification decision is unreviewable.




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                                           ORDER

       For the foregoing reasons, the DOC’s motion to dismiss is granted; Mr. Carter’s motion
for summary judgment is denied.

       Dated at Montpelier, Vermont this ____ day of January 2015.


                                                   _____________________________
                                                   Mary Miles Teachout,
                                                   Superior Judge




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