LeClair v. Pallito, No. 333-12-12 Cacv (Teachout, J., Aug. 28, 2013)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                          CIVIL DIVISION
Caledonia Unit                                                                                          Docket No. 333-12-12 Cacv

BRIAN LeCLAIR,
     Petitioner

           v.

ANDREW PALLITO, Commissioner,
Vermont Department of Corrections,
     Respondent

                                                DECISION AND ORDER
                                          Cross-Motions for Summary Judgment
        Petitioner Brian LeClair is a prison inmate who seeks Rule 75 review of a disciplinary
determination that when he did not remove his sunglasses when requested by a correction officer
he interfered with an officer in the performance of duties in violation of prison rules. Plaintiff
seeks to have the Disciplinary Report expunged from his record. The case is now before the
Court on cross-motions for summary judgment.

       “The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
V.R.C.P. 56(a) (Cum. Supp. 2012); Herring v. Gorczyk, 173 Vt. 240, 243 (2001).

        The facts pertinent to this dispute are partially disputed. Petitioner sought summary
judgment and pursuant to Vermont Rule of Civil Procedure 56(c)(1)(A), Defendant Pallito filed a
response to Plaintiff’s Statement of Undisputed Facts, disputing 3 out of 14 factual assertions in
Plaintiff’s Statement of Undisputed Facts:
           5. “The investigating officer concluded that Mr. LeClair did not promptly follow
           instructions.”
           8. “Mr. LeClair was not allowed to confront the reporting officer.”
           12. “The St. Johnsbury Work Camp has a list of rules ‘that are specific to this
           facility and are in addition to the rules listed in [disciplinary] directive 410.01.’”

        Defendant disputes Plaintiff’s fact #5 on the ground that Plaintiff’s summarization of the
cited factual support is inaccurate, but does not dispute the veracity of the factual support
Plaintiff cites to in the record. The investigating officer’s statement itself is undisputed and shall
be considered.

        As to Plaintiff’s fact #8, again, Defendant disputes Plaintiff’s summarization of the cited
factual support, but does not dispute the accuracy of the portion of the record that supports
Plaintiff’s fact #8. Indeed, Defendant cites to the same portion of the record in his Statement of
Undisputed Material Facts (Defendant’s fact #7). Thus, the portion of the disciplinary hearing
transcript cited to by both Plaintiff and Defendant is undisputed and shall be considered.

          Defendant also disputes Plaintiff’s fact #12 under Vermont Rule of Civil Procedure
56(c)(1)(B), arguing that “the material cited by Plaintiff to support this assertion lacks foundation
and does not indicate which facility the appended rules apply to.” That Rule provides that “[a]
party asserting that a fact . . . is genuinely disputed must support the assertion by . . . [s]howing
that . . . an adverse party cannot produce admissible evidence to support the fact.” V.R.C.P.
56(c)(1)(B) (Cum. Supp. 2012).

        Plaintiff’s fact #12 references page 12 of the attachments to his motion for summary
judgment. Attachment page 12 is the same as Exhibit H as attached to Plaintiff’s complaint.
Here, as in the complaint, Plaintiff indicates that these pages are excerpted from a list of rules
specific to the Northeast Correctional Complex (consisting of the Northeast Regional
Correctional Facility and the Caledonia Community Work Camp). In the complaint, Plaintiff
indicates the rules are taken from the “Northeast Correctional Complex Camp Inmate
Handbook.” In the motion for summary judgment, Plaintiff simply states that the “St. Johnsbury
Work Camp has a list of rules.”

        Plaintiff could have provided more to support the evidence that is proffered to be a series
of rules specific to the Northeast Correctional Complex, but the Court notes that Defendant has
not shown that the Plaintiff “cannot produce admissible evidence to support” the proffer.
Regardless, the Court does not consider fact #12 to be dispositive of the issues raised in the
cross-motions for summary judgment, as this is not a material fact.

       Accordingly, the Court takes as true the following facts. Plaintiff LeClair is an inmate
committed to the care and custody of the Commissioner of the Vermont Department of
Corrections, Defendant in this matter.

        On November 25, 2012, Plaintiff received an Inmate Disciplinary Report, in which
Correction Officer Max Field accused Plaintiff of “interfering with an officer in the performance
of duties,” a Major B-18 violation.1 Plaintiff’s Attachment, 1. On the accompanying Incident
Report Form, Officer Field described the incident as follows:

         While working third shift in South Unit inmate Leclair, Brian was wearing
         sunglasses when he entered the bathroom at 2318. When inmate Leclair exited
         the bathroom I told him to take off his sunglasses so I could see his eyes, Leclair
         told me no that there was no rules against wearing sunglasses in the unit and that
         he spoke to the previous officer about it. I informed Leclair that he will receive a
         Major DR for interfering with my duties. I gave Leclair multiple directions to
         take the sunglasses off while he was looking at the inmate handbook so I could


1
  Major B-18 reads, in whole: “Interfering with an officer in the performance of duties or any disobedience or
refusal of an officer’s instruction or order that threatens or disrupts institutional security or interferes with the taking
of an official institutional headcount.” DOC Directive 410.01, Attachment 1, at 20, available at http://www.doc.
state.vt.us/about/ policies/rpd/correctional-services-301-550/401-500-programs-security-and-supervision/410-01-
facility-rules-and-inmate-discipline.

                                                             2
        see his eyes. At 2320 Leclair left my desk after saying then UA me and after he
        turned around to go back to his bunk he took the sunglasses off. End of report.

Id. at 2.

       Immediately following this interaction with Officer Field, Plaintiff filled out an Informal
Complaint & Plan for Resolution Form in which he requested the Disciplinary Report be
dismissed and proposed a “Plan for Resolution” under which he would “take off the sunglasses
when told to and to explain to the officer why instead of getting angry about the situation.” Id. at
3.

       Officer H. DeGreenia was assigned to investigate the Disciplinary Report. Id. at 1. On
November 30, 2012, Officer DeGreenia filled out an Investigating Officers Report Form. Id. at
4. Officer DeGreenia summarized Plaintiff’s position as follows:

        Leclair stated he came out of the unit restroom with his sunglasses on and CO1
        Field instructed him to remove his sunglasses. Brian claimed he asked why and
        Field told him he wanted to see his eyes and repeated his direction. Lecair [sic]
        then claimed he stated that he didn’t understand because he knew hats were not
        allowed inside but hadn’t read any rule about not wearing sun glasses inside.
        Field instructed him again and Leclair then pulled his glasses off as he turned
        away and as he walked off Lecair [sic] claimed he told Field to put him in for a
        UA if he thought he was using drugs.

Id. at 4. In the “Investigating Officer Statement” section on the Form, Officer DeGreenia
concluded: “Leclair’s statement above clearly admits that he didn’t follow Officer Fields [sic]
instruction until he was walking away and didn’t allow the officer to look at his eyes.” Id.

       A disciplinary hearing was held on December 3, 2012. Id. at 6; Disciplinary Hearing
Transcript. DOC did not call any witnesses but presented the original Notice of Hearing, the
November 25 Inmate Disciplinary Report, the Novermber 25 Incident Report Form, Plaintiff’s
Disciplinary Report History, and Officer DeGreenia’s November 30 Investigating Officers
Report Form. Disciplinary Hearing Transcript, 2–3.

        Plaintiff testified on his own behalf. According to Plaintiff, there is a light directly above
his bed. Id. at 3. The night of November 25, Plaintiff woke up with “a really, really, really bad
headache.” Id. He testified that he was having “some problems seeing with the light that was
kind of glaring in my eyes, and the headache.” Id. Plaintiff testified that he had to go to the
bathroom, and that as he was walking out of the bathroom, Officer Field asked him to “come
over to the desk.” Id. According to Plaintiff’s testimony, it is “really difficult to see in that
area.” Id. Plaintiff testified that Officer Field directed him to take off his glasses and Plaintiff
responded that he was not “aware of a rule about it.” Plaintiff stated that Officer Field again told
him to take off the glasses, but that Plaintiff “had a headache, so as I turned—as I turned around
right then, I just turned around, and I just walked away. As I was turning around, I took off my
glasses.” Id.

        Plaintiff also called inmate Kareem Bennett who testified that Plaintiff took off his
glasses “directly” when Officer Field requested. Id. at 5.
                                                  3
        On the Notice of Hearing, Plaintiff requested that Officer Field be present for the hearing.
Attachment, 5; Disciplinary Hearing Transcript, 5–6. Officer Field, however, was not at the
hearing. The transcript of the hearing indicates that Officer Field did not attend because “he’s
not readily available. He’s en route headed home. He just got done a twelve-hour shift.”
Transcript, 6. Accordingly, Plaintiff did not confront Officer Field at the hearing.

        At the conclusion of the hearing, the Hearing Officer found Plaintiff guilty of the charged
disciplinary violation, stating on the record:

       I find you guilty. Officer Field wanted to see your eyes to see if you had been
       doing anything wrong. You were given multiple directions to remove the glasses.
       You stated that it was dark in there that you could barely see yourself, and you
       still had the glasses on. That’s a safety hazard. The investigating officer,
       DeGreenia, states that you clearly did not follow Officer Field’s instruction until
       after you turned around.

Id.

       Plaintiff appealed his conviction the same day as the hearing. Attachment, 8–13. The
Superintendent denied his appeal the same day, explaining:

       I have reviewed the hearing packet and there has been no violation of your due
       process rights. The hearing officer has determined that a preponderance of
       evidence exists to support the guilty finding of a B-18 in that you did interfere
       with officers [sic] duties by not allowing him to look at your eyes.

Id. at 8. Plaintiff received notice of the denial the following day. Id.

       On December 21, 2012, Plaintiff filed this Rule 75 petition.

        In seeking summary judgment, Plaintiff argues that he was overcharged, that rule B-18 is
vague as applied to him, that the hearing officer’s findings do not support his legal conclusion,
that his due process rights were violated, and that there is insufficient evidence to support the B-
18 conviction. Defendant argues that he is entitled to judgment as a matter of law on all of the
above.

        Plaintiff’s argument that he was overcharged is without merit. There is no evidence
suggesting that Officer Field’s election to charge Plaintiff with a Major B-18 violation instead of
some other lesser violation was somehow impermissible. The existence of other rules which
Plaintiff may or may not have violated, some of which may carry lesser or harsher penalties,
does not invalidate the State’s choice of charge. The State still bears the burden of proof in
establishing each and every element of any violation charged. A charge is not an impermissible
“overcharge” if there is evidence to support it. As discussed below, there was factual support for
the charge.

        The Court also concludes that Major B-18 is not unconstitutionally vague as applied to
Plaintiff. “Lack of statutory clarity offends notions of due process for no man shall be held
criminally responsible for conduct which he could not reasonably understand to be proscribed.”

                                                  4
Benning v. State, 161 Vt. 472, 483 (1994) (citation omitted) (internal quotation marks omitted).
“Due process of law requires notice sufficient to ‘give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited’ and to ‘provide explicit standards for those
who apply them.’” Sec’y, Vt. Agency of Natural Res. v. Irish, 169 Vt. 407, 411 (1999) (quoting
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)); State v. Cantrell, 151 Vt. 130, 133
(1989) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Of course, “[s]tatutes or
regulations need not detail each and every act or conduct that is prohibited in order to provide
fair notice of what behavior they cover.” In re Rusty Nail Acquisition, Inc., 2009 VT 68, ¶ 16,
186 Vt. 195 (citation omitted) (internal quotation marks omitted). Language that “conveys a
definite warning as to proscribed conduct when measured by common understanding and
practices will satisfy due process.” Id. (citation omitted) (internal quotation marks omitted).

        Where the statute or regulation at issue does not threaten the exercise of constitutionally
protected rights, the test is less strict. Benning v. State, 161 Vt. 472, 483 (1994) (citing Rogers v.
Watson, 156 Vt. 483, 491 (1991)). Where the vagueness challenge to a statute is not one
involving the First Amendment, the challenge must be examined in light of its facts. Id. (citing
State v. Roy, 140 Vt. 219, 229 (1981)).

        Here, Plaintiff contends the rule is void for vagueness as applied to him, arguing it did
not give him adequate notice that the conduct at issue was prohibited. The Court concludes that
as applied to the conduct at issue in this case, the rule is not unconstitutionally vague. The facts
show that Officer Field informed Plaintiff multiple times prior to charging Plaintiff with
violating Major B-18 that Officer Field required Plaintiff to remove his sunglasses so that he
could see his eyes and that if Plaintiff did not comply he would be charged with a Major B-18
violation. Considering that DOC maintains numerous prohibitions, restrictions, and rules related
to alcohol and prescription and illicit drugs2 and in conjunction with Plaintiff’s statement to
Officer Field that he should “put him in for a UA if he thought he was using drugs,” it is clear
that Plaintiff believed Officer Field was attempting to ascertain Plaintiff’s compliance with
DOC’s rules related to alcohol and drugs. On these facts, the Court cannot conclude that
Plaintiff was not adequately apprised of what was required of him such that a Major B-18
violation under the facts of this case was so vague as to be unconstitutional.

       The Court also concludes that Plaintiff’s due process rights were not violated by Officer
Field not attending the December 3 hearing despite Plaintiff indicating on the Notice of Hearing
form that he wished Officer Field to be present.

        Vermont law provides that, “[i]n disciplinary cases, which may involve the imposition of
disciplinary segregation or the loss of good time, the disciplinary committee or a designated
hearing officer shall conduct a fact-finding hearing” and “[t]he inmate shall have an opportunity
subject to reasonable rules to confront the person bringing the charge. . . .” 28 V.S.A.
§ 852(b)(2). “A prisoner has a constitutionally protected interest in disciplinary hearings that are
not so lacking in procedural safeguards that they create substantial doubt that these prisoners
committed the offenses for which they were disciplined.” Herring v. Gorczyk, 173 Vt. 240, 245
(2001) (quotation omitted).


2
    E.g., Major A-19, Major A-20, and Major B-30.

                                                    5
       The Department of Corrections has created rules to administer disciplinary hearings. If a
requested witness is not available for a hearing “because of work schedules, transfers or other
causes,” the inmate charged with a violation may request a continuance. Vt. Admin. Code 12-8-
13:2(c)(1). Additionally,

       If any requested witness(es) (including the Reporting Officer) did not testify or
       did not appear at the hearing for any reason, the Hearing Officer will state the
       reasons why on the hearing recording and in the written report, noting in the
       report the forms of alternative testimony used. Witnesses may provide testimony
       using alternate forms of communication when they cannot be present at the
       hearing (e.g. . . . written statement).
DOC Directive 410.01 § 6(c).

        Here, Officer Field was the person bringing the charge and Plaintiff, on the Notice of
Hearing form, indicated that he wished Officer Field to be present at the hearing. The
undisputed facts show that Officer Field was not present at the December 3 hearing because,
prior to the start of the hearing, he had finished a 12-hour shift and was on his way home. The
hearing officer properly explained on the record the reason for Officer Field’s absence and
Plaintiff did not request a continuance as was his right under the rules. Accordingly the Court
finds no error.

        Plaintiff’s remaining two arguments, that the hearing officer’s findings do not support his
legal conclusions and that there is insufficient evidence to support the Major B-18 conviction are
similar and shall be addressed together.

        Prison authorities are required to prove inmate disciplinary violations by a
“preponderance of the evidence.” LaFaso v. Patrissi, 161 Vt. 46, 50 (1993). “On judicial
review of the sufficiency of the evidence at a prison disciplinary hearing, the hearing officer’s
final determination must be upheld if it is supported by ‘some evidence’ in the record.” Herring,
173 Vt. at 243 (citing LaFaso, 161 Vt. at 49). The Vermont Supreme Court has held that, in
determining whether the “some evidence” standard has been met, “the relevant question is
whether there is any evidence in the record that could support the conclusion reached by the
disciplinary board.” Id. (emphasis added) (quoting Superintendent v. Hill, 472 U.S. 445, 455–56
(1985)).
       Here, Plaintiff was charged and convicted of a Major B-18 violation:

       Interfering with an officer in the performance of duties or any disobedience or
       refusal of an officer’s instruction or order that threatens or disrupts institutional
       security or interferes with the taking of an official institutional headcount.

DOC Directive 410.01, Attachment 1, at 20, available at http://www.doc.state.vt.us/about/
policies/rpd/correctional-services-301-550/401-500-programs-security-and-supervision/410-01-
facility-rules-and-inmate-discipline.

      This charge requires proof of two elements; thus, the State must prove by a
preponderance of the evidence that Plaintiff:

                                                 6
   1. interfered with an officer in the performance of duties or disobeyed or refused an
      officer’s instruction or order that
   2. threatened or disrupted institutional security or interfered with the taking of an official
      institutional headcount.

None of the relevant terms in the rule are defined.

       In finding Plaintiff guilty, the hearing officer held:

       I find you guilty. Officer Field wanted to see your eyes to see if you had been
       doing anything wrong. You were given multiple directions to remove the glasses.
       You stated that it was dark in there that you could barely see yourself, and you
       still had the glasses on. That’s a safety hazard. The investigating officer,
       DeGreenia, states that you clearly did not follow Officer Field’s instruction until
       after you turned around.

        Plaintiff only challenges the first element, contending that his actions that night did not
interfere with Officer Field’s performance of duties. Rather, Plaintiff asserts that he was “merely
slow to follow through with the instructions to take off his sunglasses.”

        Defendant argues there is “some evidence” in the record to support the conclusions of the
hearing officer that Plaintiff disobeyed Officer Field and additionally addresses the second
element, arguing that drug use and wearing sunglasses at night threaten or disrupt institutional
security.

        As to the first element, the Court concludes there is “some evidence” in the record to
support the hearing officer’s conclusion that Plaintiff interfered with performance of Officer
Field’s duties. One part of a correction officer’s duties is ensuring that inmates follow the rules.
DOC maintains numerous rules proscribing drug and alcohol use. The hearing officer concluded
that Officer Field wanted to see Plaintiff’s eyes, Plaintiff was given multiple instructions to
remove his sunglasses for that purpose, and Plaintiff did not remove his sunglasses until he
turned around. There is ample evidence in the record—including Plaintiff’s own statements—to
support this conclusion.

         Plaintiff does not challenge whether his actions could constitute a threat or disruption to
institutional security and thus the Court need not address it. However, the Court notes that even
had Plaintiff challenged this element, there is “some evidence” in the record to meet this element
as well. The hearing officer found that Officer Field wanted to see Plaintiff’s eyes to see if he
had been doing anything wrong, which, Defendant contends, refers to the possibility of illicit
drug use. That drug use by an inmate in a secure prison facility constitutes a threat to
institutional security is readily apparent. Accordingly, Plaintiff, by refusing to comply with
Officer Field’s request to remove his sunglasses, interfered with Officer Field’s duties such that
it threatened institutional security by preventing Officer Field from checking for illicit drug use.
Additionally, the hearing officer concluded that wearing sunglasses in a darkened area at night
constitutes a “safety hazard.” Although it could have been stated in a clearer manner, the
obvious conclusion is that such safety hazards threaten the security of the institution. This
conclusion is amply met by the record, including Plaintiff’s own testimony during the hearing

                                                  7
that it was hard to see in the area near the restroom and Officer Field’s desk. Thus, by
disobeying Officer Field’s request to remove his sunglasses, Plaintiff’s actions threatened
institutional security by creating a risk of harm to himself or others.

         In sum, Plaintiff has failed to show in this Rule 75 review that the hearing officer’s
findings do not support his legal conclusion. Plaintiff’s argument that the facts are insufficient to
support the finding of a violation also fails. The evidence adduced at the hearing is sufficient to
show that Plaintiff interfered with Officer Field’s duties by refusing to remove his sunglasses,
despite repeated instructions to do so, so that Officer Field could view Plaintiff’s eyes to check
for illicit drug use. Plaintiff’s refusal to remove his sunglasses in the darkened area was a safety
hazard to himself and others and his refusal to let Officer Field view his eyes threatened
institutional security by preventing Officer Field from checking for illicit drug use.



                                             ORDER

      For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is denied and
Defendant’s Motion for Summary Judgment is granted.

       Dated at Saint Johnsbury, Vermont, this 28th day of August, 2013.


                                                        _________________________
                                                        Hon. Mary Miles Teachout
                                                        Superior Court Judge




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