Nichols v. LaPlante, No. 79-3-15 Oscv (Tomasi, J., September 3, 2015)

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                                                  VERMONT SUPERIOR COURT
                                                      ORLEANS UNIT
                                                      CIVIL DIVISION

                                                                         │
Scott Nichols,                                                           │
 Plaintiff,                                                              │
                                                                         │
    v.                                                                   │      Docket No. 79-3-15 Oscv
                                                                         │
Dana LaPlante, et al.                                                    │
Defendants.                                                              │
                                                                         │

                               Decision On Defendants’ Motion to Dismiss

        Plaintiff Scott Nichols is an inmate in the custody and control of the Vermont
Department of Corrections (the “Department”). At the time of the events in dispute
here, he was incarcerated at Northern State Correctional Facility (“NSCF”). Since
filing this complaint, Plaintiff has been released from prison and placed on
conditional re-entry furlough in the community. This action was filed on March 6,
2015 seeking damages and injunctive relief for what the Court views as state and
federal causes of action.

        The named defendants were at, all relevant times, employees of the
Department. Dana LaPlante was employed as a CO (Correctional Officer) II at
NSCF; Richard Bilodeau was employed as a CFSS (Correctional Facility Shift
Supervisor) at NSCF; David Turner served as the Director of Policy Development
and Inmate Due Process for the Department;1 and Andrew Pallito was the
Commissioner of the Department. Plaintiff is suing all Defendants in their
individual capacities for monetary relief and in their official capacities for injunctive
relief.

       Plaintiff alleges that Defendants are responsible for lost wages due to his
incarceration for an additional four months stemming from a disciplinary conviction
in September 2014. According to Plaintiff, he received a sanction of six days
disciplinary segregation in violation of Department Directive 410.01. Plaintiff
appealed the disciplinary conviction as specified by Directive 410.01 and alleges
that his appeal was denied by the Commissioner. Plaintiff did not appeal the


1   This position is also referred to as the “Corrections Executive.”
disciplinary conviction or related punishments to this Court pursuant to Vt. R. Civ.
P. 75.

       As a collateral consequence of this conviction, Plaintiff claims that he had to
restart programming, causing him to be placed on conditional re-entry furlough
later than his minimum sentence date of January 1, 2015. As a result of the
conviction, Plaintiff also claims to have suffered “severe and irreparable emotional,
physical, spiritual, and tangible injury.” Compl. ¶¶ 7-14.

                                 Conclusions of Law

Standard of Review

       The Vermont Supreme Court disfavors Rule 12(b)(6) motions to dismiss.
“Dismissal under Rule 12(b)(6) is proper only when it is beyond doubt that there
exist no facts or circumstances consistent with the complaint that would entitle
Plaintiff to relief.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575 (mem.) (quoting
Union Mut. Fire Ins. Co. v. Joerg, 2003 VT 27, ¶ 4, 175 Vt. 196).

       Nonetheless, a complaint must still meet a minimum standard of pleading.
Vt. R. Civ. P. 8 requires that a complaint’s allegations show “the pleader is entitled
to relief.” Further, a complaint must contain factual allegations supporting each
element of the claims asserted. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10, 184 Vt. 1.
On this motion, the Court “assume[s] that all factual allegations pleaded in the
complaint are true, accept[s] as true all reasonable inferences that may be derived
from plaintiff's pleadings, and assume[s] that all contravening assertions in
defendant's pleadings are false.” Mahoney v. Tara, LLC, 2011 VT 3, ¶ 7, 189 Vt.
557 (mem.) (internal quotation, brackets, and ellipses omitted).

      Analysis

       The Court first addresses Plaintiff’s claims for injunctive relief. In Vermont,
a case becomes moot when the issues presented are no longer “live” or “the parties
lack a legally cognizable interest in the outcome.” Hunters, Anglers and Trappers
Ass’n of Vt., Inc. v. Winooski Valley Park Dist., 2006 VT 82, ¶ 15, 181 Vt. 12, 21
(quotations omitted).

        It is well settled that a transfer between facilities or release from prison
moots any claims for injunctive relief from prison officials. See, e.g., Hill v. Zenk,
115 Fed. Appx. 97, 97 (2d Cir. 2004) (“Because [plaintiff] brought his action for
relief against the warden of a facility in which he concedes he is no longer

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incarcerated, his petition for relief is moot.”); Thompson v. Carter, 284 F.3d 411,
415-16 (2d Cir. 2002); Colman v. Goord, 2 Fed. Appx. 170, 171 (2d Cir. 2001). The
“mere possibility” that Plaintiff may be returned to prison for violating his furlough
does not keep Plaintiff’s injunctive relief claims “alive” such that the Court may
adjudicate them. Courts v. Coombe, 95 Civ. 2350, 1996 WL 312357, at *2 (S.D.N.Y.
June 11, 1996). As a result, Plaintiff’s claims for equitable relief are dismissed.

        Turning to Plaintiff’s money damages claims, Plaintiff has alleged intentional
infliction of emotional distress. In addition, the Court will treat Plaintiff’s “lost
wages” claim as asserting a malicious prosecution theory of recovery. See Compl. at
1 (“TORT CLAIM — Pursuant to Vermont Rules of Civil Procedure”). Though the
State has litigated this case solely as a state-law tort action, the Court believes
Plaintiff has also alleged violations of his constitutional rights under 42 U.S.C.
§ 1983.

       Defendants maintain that Commissioner Pallito is protected by absolute
immunity, while the other defendants are protected from suit in their individual
capacities by the Vermont Tort Claims Act, or in the alternative, qualified
immunity. Defendants further contend that, in any event, their conduct did not rise
to the level of either a cognizable malicious prosecution or intentional infliction of
emotional distress claim.

       The Court will first discuss the state-law claims and whether Defendants are
entitled to immunity on those claims, followed by the Section 1983 claims and
possible applicability of federal official immunity.

   1. State-Law Claims

          a. Malicious Prosecution

       In Vermont, a claim for malicious prosecution requires the plaintiff to
establish that the defendant instituted the proceeding against him: (1) without
probable cause; (2) with malice; and that (3) the proceeding terminated in the
plaintiff’s favor. Anello v. Vinci, 142 Vt. 583, 587 (1983). A proceeding is only
“terminated” in a plaintiff’s favor for purposes of a malicious prosecution claim if it
can be determined that the defendant is not guilty of wrongdoing. Lay v. Pettengill,
2011 VT 127, ¶ 32, 191 Vt. 141, 160; (“[p]roceedings are ‘terminated in favor of the
accused’ ... only when their final disposition is such as to indicate the innocence of
the accused” (internal quotation omitted)); Kent v. Katz, 146 F. Supp. 2d 450, 460-61



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(D. Vt. 2001) (even a termination by compromise is not sufficient to meet the
requirements for a malicious prosecution case).

       Here, Plaintiff does not allege that the underlying disciplinary conviction
terminated in his favor. While Plaintiff’s complaint establishes that he appealed
the conviction, the appeal was resolved in favor of the Department, and Plaintiff
failed to contest the decision in this Court pursuant to Vt. R. Civ. P. 75. Accordingly,
to the extent that Plaintiff alleges malicious prosecution, that claim is dismissed.

          b. Intentional Infliction of Emotional Distress (IIED)

       In order to survive dismissal of an IIED claim, Plaintiff must allege:
1) conduct that is extreme and outrageous; 2) conduct that is intentional or reckless;
and 3) conduct that causes severe emotional distress.” Baptie v. Bruno, 2013 VT
117, ¶ 24, 195 Vt. 308, 318.

       To satisfy the outrageousness element, the defendant’s behavior must
“surpass the bounds of decency that can be tolerated in a civilized society.”
Fromson v. State, 2004 VT 29, ¶ 15, 176 Vt. 395; see also Restatement (Second) of
Torts § 46, cmt. d (1965). Plaintiff must also allege that defendant’s actions caused
him to suffer “distress so severe that no reasonable person could be expected to
endure it.” Baldwin v. Upper Valley Services. Inc., 162 Vt. 51, 57 (1994).

       It is well established that, “insult, indignities, and annoyances” do not
amount to extreme and outrageous conduct. Denton v. Chittenden Bank, 163 Vt. 62,
66-67 (1994). Similarly, conduct that is tortious, or even criminal, may not rise to
that level. Restatement (Second) of Torts, § 46 cmt. d (1965). This is especially the
case in a prison, where most rights are measured “in relation to the ordinary
incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 484 (1995).

       Even under this standard, however, Plaintiff’s allegations are sufficient to
survive a motion to dismiss. Plaintiff essentially alleges a conspiracy between
correctional officers to subject him to additional jail time in retaliation for previous
suits against the Department. Depending upon the extent of the bad acts, which
could be uncovered in discovery, it could be enough to rise to the level of being
“extreme and outrageous.” Plaintiff has also alleged that Defendants’ actions were
intentional and have caused severe “emotional, physical, spiritual, and tangible”
injuries in addition to reputational harm.




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       Under our system of “notice pleading,” nothing more is required to make out
a claim. See Vt. R. Civ. P. 8 (describing notice pleading); Bock, 2008 VT 81, ¶ 4, 184
Vt. at 576 (“[T]he threshold a plaintiff must cross in order to meet our notice-
pleading standard is exceedingly low.”).

          c. Official Immunity Under State Law

        Defendants argue that all of Plaintiff’s claims are barred by various strains of
official immunity. Because official immunity is, as the name suggests, an immunity
from suit rather than a defense from liability, see Murray v. White, 155 Vt. 621, 626
(1991), it should be decided in the opening stages of a case. Id. at 626. That way,
state officials need not bear the burden of discovery and litigation. See Saucier v.
Katz, 533 U.S. 194, 200-01 (2001).

                 i. Absolute Immunity

        The doctrine of absolute immunity applies to “judges, legislators, and the
State’s highest executive officers when they are acting within the scope of their
respective authorities.” LaShay v. Dep’t of Soc. & Rehab. Servs., 160 Vt. 60, 64
(1993). It serves to protect these officials from all claims, even if they acted in bad
faith or abused their discretion. Id. Commissioner Pallito is the highest-ranking
official in the Vermont Department of Corrections, 28 V.S.A. § 102(a), and he is
entitled to absolute immunity for actions taken within the “general authority” of his
office. Curran v. Marcille, 152 Vt. 247, 249 (1989); Levinsky v. Diamond, 151 Vt.
178, 185 (1989), overruled in part on other grounds by Muzzy v. State, 155 Vt. 279
(1990).

       Here, there is no allegation that Commissioner Pallito acted outside the scope
of his statutory authority. See 28 V.S.A. § 102(c)(5). Plaintiff only alleges that the
Commissioner denied his disciplinary appeal, in which he raised substantially the
same issues as are alleged in this case. For that reason, the Commissioner is
absolutely immune from liability for any harm caused to Plaintiff, and the state-law
claims against him are dismissed.

                ii. The Vermont Tort Claims Act

      The first question the Court must address with respect to the remaining
Defendants is whether Plaintiff may maintain an individual-capacity suit against
them at all. Ordinarily, claims against state employees for acts or omissions taken
within the scope of employment must be brought exclusively against the state. 12


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V.S.A. § 5602(a). An exception exists, however, permitting individual-capacity suits
against state employees for “gross negligence or willful misconduct.” Id. § 5602(b).

       According to the allegations in the complaint, Defendant LaPlante violated
Directive 410.01 by charging him with a major disciplinary violation instead of a
minor disciplinary violation. Plaintiff alleges that CO LaPlante cited him with a
major disciplinary violation because Plaintiff had previously named LaPlante’s
“fellow coworkers as defendants in lawsuits.”2 Compl. ¶ 8. Defendant Bilodeau
oversaw Plaintiff’s disciplinary hearing and imposed punishment thereafter.
According to Plaintiff, CFSS Bilodeau spoke to Plaintiff off-the-record prior to the
disciplinary hearing. CFSS Bilodeau allegedly advised Plaintiff that, “I’m going to
smoke you,” “I’m sick of your legal work,” and “This hearing is karma.” Compl. ¶ 9.
Defendant Turner responded to Plaintiff’s disciplinary appeal. Plaintiff alleges that
Mr. Turner denied his appeal with “deliberate indifference” to his plight, and in
violation of his constitutional and statutory rights. Compl. ¶ 12.

        Taken in a light most favorable to Plaintiff, the actions of Defendants
LaPlante and Bilodeau amounted to willful misconduct not covered by the exclusive
remedy provisions of the Vermont Tort Claims Act. See Long v. L’Esperance, 166
Vt. 566, 575 (1997). Plaintiff has alleged that the constitutionally protected conduct
of filing lawsuits was a substantial or motivating factor in Defendants’ decision to
charge and convict him with a major disciplinary violation. Such retaliatory
conduct is not insulated by the discretion the Department enjoys in imposing
inmate discipline or in making programming decisions. In re Girouard, 2014 VT 75,
¶ 13.

       As to Defendant Turner, the Department argues that he merely denied
Plaintiff’s disciplinary appeal, an action that was well within his discretion under
28 V.S.A. § 854. While that may well be the case, Plaintiff alleges that he acted
with deliberate indifference after being informed through the appeal of the
purported constitutional violations of Defendants LaPlante and Bilodeau. Read in a
light most favorable to Plaintiff, Mr. Turner’s actions in denying appeal and failing
to remedy the improper conduct of the other defendants may constitute willful
misconduct. As a result, Plaintiff may assert an individual-capacity money
damages claim against him.



2Plaintiff was charged with interfering with a staff member in the course of his or
her official duties. Compl. ¶ 7.
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                iii. Qualified Immunity

       The Court next turns to the issue of whether Defendants LaPlante, Bilodeau
and Turner are protected by qualified immunity. Qualified immunity protects
government officials from suit, “who are (1) acting during the course of their
employment and acting, or reasonably believing they are acting, within the scope of
their authority; (2) acting in good faith; and (3) performing discretionary, as
opposed to ministerial, acts.” Murray, 155 Vt. at 627. The analysis must focus on
“the objective reasonableness of the official’s conduct in relation to settled, clearly-
established law.” Hoffer v. Ancel, 2004 VT 38, ¶ 12, 176 Vt. 630 (mem.) (quotation
omitted).

       The Court first notes that the Department’s Directives do not create due
process interests that would not exist otherwise. King v. Gorczyk, 2003 VT 34, ¶ 25,
175 Vt. 220, 234-35. They are more akin to agency manuals, providing Department
employees with guidance on how to carry out their statutory duties. Id. ¶ 22, 175
Vt. at 234 (citing Wanzer v. Dist. of Columbia, 580 A.2d 127, 133 (D.C. Ct. App.
1990)). Furthermore, as noted by Defendants, inmate discipline is a discretionary
function of the Department. See 28 V.S.A. § 102(c)(5).

       But here, Plaintiff alleges that Defendants abused their discretion to impose
discipline on him in retaliation for undertaking litigation against the Department or
acted with indifference to that claim. Our Supreme Court recently held that similar
retaliatory conduct on the part of the Department, if established,3 would be
unconstitutional. In re Girouard, 2014 VT 75, ¶ 13. The Court concludes that, even
assuming that Defendants’ actions in this case were discretionary and within the
scope of their authority, they are not entitled to qualified immunity. If true,
Plaintiff’s allegations establish that Defendants violated clearly established law.

    2. Section 1983 Claims

     With regard to Plaintiffs claim under Section 1983, he alleges that
Defendants engaged in retaliation for constitutionally protected conduct. See
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). As noted above, the thrust of


3In order to establish a prima facie case for unconstitutional retaliation, a plaintiff
must demonstrate that “he engaged in constitutionally protected conduct and that
the protected conduct was a ‘substantial or motivating factor’ in DOC’s decision to
require additional programming.…” In re Girouard, 2014 VT 75, ¶ 12 (citing
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)).
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the allegations are that Defendants “overcharged” Plaintiff in apparent retaliation
for lawsuits Plaintiff filed against the Department. Such allegations are sufficient
to state a claim against the Correctional Officer Defendants.

       Section 1983 does not hold supervisors vicariously liable for the conduct of
the employees that they oversee, however. Hendricks v. Coughlin, 114 F.3d 390,
394 (2d Cir. 1997). Instead, a plaintiff must establish that the supervisor had some
“personal involvement” in the alleged constitutional deprivations. Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880,
885 (2d Cir. 1991)). Among other things, supervisory personnel may be considered
“personally involved” if they failed to remedy the wrong after being informed of the
violation through a report or an appeal. Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995) (citing Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986)).

      With respect to the supervisory personnel named as Defendants here,
Commissioner Pallito and Mr. Turner, Plaintiff has alleged that he submitted
grievances explaining his claims and that both of those individuals denied his
grievances “with deliberate indifference.” Compl. ¶¶ 12-13. Accordingly, Defendant
has stated a claim against the supervisory officials.

       Defendants also assert qualified immunity under federal law. It is well
established that the test for qualified immunity under state law is functionally
similar to the federal test established under Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Murray, 155 Vt. at 630. For that reason, there is no call to analyze whether
Defendants LaPlante, Bilodeau, and Turner are entitled to qualified immunity
under federal law. The analysis concerning state-law qualified immunity shows
that they are not. With regard to Defendant Pallito, he stands in the same position
as Defendant Turner with regard to the issue of qualified immunity. Defendant
Pallito is not entitled to qualified immunity at this point for the same reasons
described above concerning Defendant Turner. If Plaintiff’s allegations are true,
the failure to remedy the unconstitutional activity alleged in the Complaint would
violate clearly established law.4




4   The State has not argued that Defendants Pallito and Turner are entitled to
    absolute immunity because their conduct in the prison disciplinary system is
    “quasi-judicial” in nature. Similar prison officials typically have been afforded
    only qualified immunity by the courts. See Cleavinger v. Saxner, 474 U.S. 193,
    199–200 (1985); Young v. Selsky, 41 F.3d 47, 51-54 (2d Cir. 1994).
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                                       Order

      Wherefore, Defendants’ Motion to Dismiss is granted in part and denied in
part. All state-law tort claims against Commissioner Pallito are dismissed.
Plaintiff’s claim for malicious prosecution is dismissed. The motion to dismiss is
otherwise denied

      The qualified immunity issues raised in the motion to dismiss are denied
without prejudice. If supported by the record, they may be renewed at the summary
judgment stage and at trial.

      Dated at Newport, Vermont this ____ day of August, 2015.


                                       _____________________
                                       Timothy B. Tomasi
                                       Superior Court Judge




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