brandt v. pallito ( 2023 )

SUPERIOR COURT og CIVIL DIVISION
Washington Unit : us Rocket No. 544-9-15 Wnev
JEFFREY-MICHAEL BRANDT
Plaintiff
Vv.
ANDREW PALLITO, Commissioner,
Vermont Department of Corrections
Defendant
DECISION
Plaintiff's Motion for Summary Judgment and
The State’s Motion to Dismiss
Plaintiff-Inmate Jeffrey-Michael Brandt brought this case to challenge how the Vermont
Department of Corrections has implemented 28 V.S.A. § 854, which requires the DOC to adopt
grievance procedures.' He asks the court to declare the principal grievance procedure, the
Offender Grievance System for Field and Facilities, void and order the DOC to adopt a new
policy that complies with his interpretation of § 854. Mr. Brandt’s primary objection is that the
grievance procedure ends with an appeal to the commissioner rather than beginning with a
complaint to the commissioner, which is what he believes § 854 requires. He also asserts that his
grievances almost always are denied and that the administrative process takes too long. He
believes that these are effects of the way the system was designed. Mr. Brandt has filed a motion
for summary judgment advancing his interpretation of § 854. The State opposes summary
judgment and has filed a motion to dismiss for lack of standing.
This case arises out of Mr. Brandt’s interpretation of 28 V.S.A. § 854, which provides:
The commissioner shall establish procedures to review the grievances of inmates.
The commissioner may utilize the services of a hearing officer to review
grievances. Such procedures shall provide for the following:
(1) The review of grievances shall be by a person or persons other than the person
or persons directly responsible for the conditions or actions giving rise to the
grievance;
(2) All inmates shall be allowed to communicate grievances directly to the
commissioner, and an inmate’s right to file grievances shall not be restricted.
(3) All inmates shall be informed of the grievance procedure, which shall be
available to all inmates.
' Mr, Brandt withdrew any claims about local procedures in out of state facilities when he was returned to Vermont.
The DOC has adopted rules which provide procedures for emergency grievances, grievances
involving serious misconduct of staff, and standard grievances. Directives #320, #320.01. Mr.
Brandt has focused on the procedure for standard grievances. He complains that it is a multistep
process that begins with informal dispute resolution and culminates with an appeal to the
commissioner. He argues that § 854(2) requires that inmates must be permitted to initiate the
grievance process directly with the commissioner and that the procedure adopted by the DOC is
not what the statute contemplates.
Mr. Brandt has not asserted that he has any underlying dispute with the DOC in which he
was required to pursue the process outlined in Directives #320 and #320.01 and was not
permitted to address his concern directly to the commissioner, nor does he assert that he faces
that situation imminently. In these circumstances, the court concludes that Mr. Brandt lacks
standing to pursue an abstract legal issue.
Framing his complaint as seeking declaratory relief does not avoid the need to
demonstrate standing.
Every petition for declaratory relief must be rooted in an actual
controversy between the parties; otherwise, the plaintiff lacks standing to sue, and
the courts have no jurisdiction to grant the relief sought. To establish standing in
Rule 75 proceedings, the plaintiff “‘must allege at least the threat of an “injury in
fact” to some protected interest.’” Indeed, we have stated that “[t]he availability
of declaratory relief turns on whether the plaintiff is suffering the threat of actual
injury to a protected legal interest, or is merely speculating about the impact of
some generalized grievance.”
Ladd v. Valerio, 2005 VT 81, 73, 178 Vt. 614 (citations omitted). Mr. Brandt’s petition for
declaratory relief is not rooted in any actual controversy between the parties. He believes that
the DOC has interpreted 28 V.S.A. § 854 incorrectly. He wants the DOC to adopt a policy that
complies with his interpretation of § 854 to remedy that incorrect interpretation. No injury to
Mr. Brandt hangs in the balance. See Wright & Miller, et al., 13A Fed. Prac, & Proc. Juris. §
3531 (3d ed.) (“Standing doctrines are employed to refuse to determine the merits of a legal
claim, on the ground that even though the claim may be correct the litigant advancing it is not
properly situated to be entitled to its judicial determination. The focus is on the party, not the
claim itself.” (footnote omitted)).”
Mr. Brandt’s belief that he is right and the DOC is wrong is not its own self-generating
source of standing. “Declaratory judgment is appropriate when a judgment ‘will terminate the
controversy or remove an uncertainty.’ This controversy must involve the threat of actual injury
to a party’s protected interest. Otherwise, ‘a declaratory judgment is merely an advisory opinion
which [courts] lack the constitutional authority to render.”” McAdams v. Town of Barnard, 2007
VT 61, 79, 182 Vt. 259 (2007) (citations omitted). The injury must be ““of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.’ A mere abstract question or
hypothetical threat is not a sufficient basis for a declaratory judgment.” Williams v. State, 156
Vt. 42, 60, 589 A.2d 840, 851 (1990) (citation omitted). Without some actual controversy at
issue that has gotten tangled up in the procedural issues Mr. Brandt is attempting to raise, he
presents only an abstract question and seeks only an advisory opinion.
In Wool v, Pallito, No. 455-7-15 Wnev (Vt. Super. Ct.), an inmate pursued in court a
gender-based equal protection claim. The DOC sought dismissal for failure to exhaust
administrative remedies, arguing that Mr. Wool had completely skipped the grievance process.
In response, Mr. Wool argued that he exhausted under 28 V.S.A. § 854(2) because he had raised
the issue directly with the commissioner—reflecting nearly the same interpretation of § 854 that
Mr. Brandt advances in this case. This caused the court to address the substance of the § 854
issue. It rejected Mr. Wool’s interpretation of § 854, concluded that he still was required to
exhaust under the grievance procedure and had failed to do so, and granted the State’s motion for
judgment on the pleadings. See Wool, Opinion and Order on the State’s Motion for Judgment on
the Pleadings (filed Apr. 18, 2016). The issue did not turn to standing; the § 854 issue arose in
the context of an actual controversy, the underlying grievance about an equal protection issue.
There is no such underlying grievance in this case because there was no real claim to
exhaust. An inmate who reads the DOC’s rules has no standing to sue to challenge the validity
of provisions with which he disagrees any more than a member of the public has a basis to sue
any other state agency or department when he or she disputes whether agency regulations
properly implement statutory law. Neither may sue without showing an active situation that will
be affected by the rule.
Mr. Brandt generally asserts that he has been injured by the DOC’s rules or practices with
past grievances that evidently no longer are at issue. For standing purposes, however, the injury
must be “‘of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.’” Williams, 156 Vt. at 60 (citation omitted). There is no such injury at stake in this
case, Therefore, Mr. Brandt lacks standing to have his argument decided by the court .
ORDER
For the foregoing reasons, the State’s motion to dismiss is granted. Mr. Brandt’s motion
for summary judgment is denied.
ath
Dated at Montpelier, Vermont this (3 day of December 2016.
Mey Whe onelat
Mary Milés Teachout
Superior Judge