Pratt v. Pallito, No. 175-3-15 Wncv (Tomasi, J., June 15, 2016).
[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
 Washington Unit                                                                                 Docket No. 175-3-15 Wncv

 Leo P. Pratt,
        Plaintiff

             v.

 Andrew Pallito,
      Defendant


                           Opinion and Order on Defendant’s Motion to Dismiss

           In this petition for review of governmental action under Vt. R. Civ. P. 75,

Plaintiff Leo Pratt seeks review of Defendant Commissioner Andrew Pallito’s (the

“Department’s”) imposition of a Major B-16 disciplinary conviction against him

based on allegations that he refused to follow an order of a Corrections Officer and

disrupted the facility. In an earlier ruling, this Court denied cross-motions for

summary judgment as to Plaintiff’s claim that, per the Department’s own

Directives, he could not be found guilty of a B-16 violation if his misconduct also

constituted a violation of any other Major rule. The Court concluded that issues of

fact precluded summary judgment on that claim.

           The Department has now filed a successive Motion to Dismiss based on lack

of jurisdiction due to Plaintiff’s failure to exhaust his administrative remedies. See

Vt. R. Civ. P. 12(b)(1) & (h)(3). The Court makes the following determinations.

                                                                    Analysis

           The Court reviews a motion to dismiss for lack of subject matter jurisdiction

under Vt. R. Civ. P. 12(b)(1) “with all uncontroverted factual allegations of the
complaint accepted as true and construed in the light most favorable to the

nonmoving party.” Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997).

When administrative remedies are established by statute or regulation, as is so

often the case in the context of prisoner litigation, the long-standing rule is that a

party must pursue or “exhaust” all such remedies before turning to the courts for

relief. See id. Failure to exhaust administrative remedies permits a court to

dismiss an action for lack of subject matter jurisdiction. Id. This allows

administrative agencies to exercise their jurisdiction without judicial interference

until a final determination has been made. Id.; accord Gundlah v. Pallito, No.

2010-121, 2010 WL 7789283, at *1 (Vt. Dec. 8, 2010) (requiring exhaustion of

inmate’s request for kosher meals) (three-Justice opinion); Martin v. Hofmann, No.

2007-181, 2008 WL 2815593, at *2 (Vt. Feb. 2008) (inmate’s claim for

reimbursement required exhaustion) (three-Justice opinion).

      The Department’s position is that the Court lacks subject matter jurisdiction

because Plaintiff failed to exhaust administrative remedies. In support of its

argument, it relies on the Printed Case submitted by Plaintiff in connection with his

motion for summary judgment. Unlike an analysis under Rule 12(b)(6), when

considering a motion to dismiss for lack of subject matter jurisdiction, the Court

may consider exhibits outside the complaint. See Conley v. Crisafulli, 2010 VT 38,

¶ 3, 188 Vt. 11, 14. For this reason, the Court will consider the Printed Case (PC) in

evaluating its defense of lack of subject matter jurisdiction.

      Department Directive 410.01 sets out the procedure for inmates to challenge

disciplinary violations. The procedure requires inmates to take various levels of



                                           2
appeal until reaching the Commissioner. PC at 22. The Commissioner serves as

the final arbiter of all inmate grievances. Id.

      In this case, the Department argues, and Plaintiff does not dispute, that the

sole ground Plaintiff asserted in appealing his conviction was that the Department

had not followed applicable timing requirements regarding his case. See PC at 2.

The Commissioner considered that argument and rejected it in deciding to uphold

the conviction. Plaintiff did not argue to the Department or the Commissioner that

he could not be found guilty of a Major B-16 violation if he could be found guilty of a

lesser charge. The Department contends that the failure to raise that precise issue

before the Commissioner amounts to a failure to exhaust administrative remedies

that deprives this Court of jurisdiction.

      Against this, Plaintiff asserts that his filing of a grievance is sufficient to

exhaust his administrative remedies regardless of the particular grounds raised in

that grievance. The Court disagrees. The general rule is that issues not raised

before an administrative agency, “even those having a constitutional dimension,

need not be considered when presented for the first time on appeal.” In re

Burlington Housing Auth., 143 Vt. 80, 81–82 (1983); see also In re Whitney, 168 Vt.

209, 215 (1998) (“In general, . . . we require preservation of an issue in an

administrative forum even if it can be called jurisdictional.”); 4 Charles Koch &

Richard Murphy, Admin. L. & Prac. § 12:21 (3d ed. Feb. 2016) (“Generally one may

not have judicial review of an issue that they might have but did not present to the

agency at the appropriate time in the administrative proceeding.”).

      One basis for that requirement is that courts only review final agency

actions. See Jordan, 166 Vt. at 514. Indeed, Directive 410.01 requires the

                                            3
Commissioner to “specifically address all appeal issues raised by the inmate.” PC at

22. If an issue was not actually submitted to and determined by an agency, there is

simply no agency action for the court to review. Accord Turnbaugh v. Pallito, 198-7-

15 Oscv (Vt. Super. Feb. 22, 2016) (Bent, J.).

      More importantly, though, the “exhaustion doctrine is designed to ensure

that a grievance is fully explored and litigated before the administrative body

possessing the pertinent experience and expertise in the subject area; the doctrine

thus serves to preserve the authority of the administrative body, and to promote

judicial efficiency.” Rennie v. State, 171 Vt. 584, 585 (2000). Presenting the precise

issue to the agency allows it to develop the factual record and consider its final

decision in light of all appropriate information. In the absence of such an assertion,

the agency is left to guess as to any purported error and may not even investigate

the facts relevant to matters that were not raised. See Town of Bridgewater v. Dep’t

of Taxes, 173 Vt. 509, 511 (2001) (noting importance of developing record in

administrative setting). The Court believes that the laudatory goals of the

exhaustion doctrine require that a plaintiff initially submit to the Department the

specific claims of error that he presents for judicial review.

      Plaintiff next argues that the Court should exercise its purported “discretion”

to allow the case to proceed in the absence of exhaustion. See Stone v. Errecart, 165

Vt. 1, 4 (1996). While common-law exhaustion may allow for an element of judicial

discretion, the Vermont Supreme 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.”

Rennie, 171 Vt. at 585. As the Department has provided an administrative remedy

                                            4
to Plaintiff, this Court is without jurisdiction to entertain the matter until he has

properly pursued that remedy to its end.

      Lastly, Plaintiff argues that he should not have to exhaust the specific issue

because the Department has already litigated the issue through summary judgment

filings. Lack of subject jurisdiction is a defense that can be asserted at any time,

however. Vt. R. Civ. P. 12(h)(3); Unifund CCR Partners v. Zimmer, 2016 VT 33, ¶

19. While earlier assertion of this defense would have saved both counsel and court

resources, the failure to do so does not preclude Defendant from raising the

jurisdictional issue now.

                                   Conclusion

      WHEREFORE, the Department’s Motion to Dismiss is granted.

      Dated at Montpelier, Vermont, this ___ day of June, 2016.



                                                      ____________________
                                                      Timothy B. Tomasi
                                                      Superior Court Judge




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