kolts v. furlan ( 2024 )

Vermont Superior Court
Filed 92/12 2_4
Addlson mt
VERMONT SUPERIOR COURT fl4
1
CIVIL DIVISION
Addison Unit Case N0. 208-11-18 Ancv
7 Mahady Court
Middlebury VT 05753
802-388-7741 fifi
wwwvermontjudiciaryorg
Rein Kolts vs. Mark Furlan
ENTRY REGARDING
MOTION FOR SPECIFIC PURPOSES
Title: Conversion Open (Motion: )
Filer:
Filed Date: November 19, 2018
Introduction
Plaintiff is in the custody of the Department of Corrections and is representing himself in
this civil action against his former lawyer. He has filed a motion, which he entitled “Motion for
Specific Purposes,” in which he “seeks a court order to direct [the Department of Corrections] to
allow [him] (unsupervised) telephone access.” (Capitalization omitted.) He makes this request to
enable him to prepare his civil case for trial.
Discussion
“The right of access to justice [i.e. the courts] is fundamental in our state constitution.”
Zorn v. Smith, 2011 VT 10, 1] 16, 189 Vt. 219; Vt. Const. ch. I, art. 4 (“Every person within this
state ought to find a certain remedy [for injury], by having recourse to the laws”). This right
applies to indigent incarcerated persons. See, e.g., In re Morales, 2016 VT 85,1] 24, 202 Vt. 549(“inmates ha[ve] a fundamental right of access to the courts”); State v. Handson, 166 Vt. 85, 89
(1996) (holding, in the criminal context, that the office of defender general was financially
responsible for the litigation expenses of incarcerated, indigent, pro se defendants when those
expenses are “necessary to mount an adequate defense” [i.e. access the courts]).
However, this right to court access, supported by affirmative court actions like appointing
counsel, is not unconditional for indigent incarcerated prisoners advancing civil matters where
their fundamental interests such as life and liberty are not at stake. See, e.g., Mehdz‘pour v. State
ex rel. Dep ’t of Corn, 2004 OK 19,1] 6 (“the United States Supreme Court has recognized that
indigent inmates have a fundamental constitutional right to meaningful access to the courts,
arising from several constitutional provisions. However, this right in the civil context, is not
absolute or unconditional, except in cases where an indigent litigant has a fundamental interest at
stake”); Lassiter v. Dep ’t of Social Servs. of Durham County, N.C., 452 U.S. 18, 25 (1981)
(“The pre-eminent generalization that emerges from this Court's precedents on an indigent's right
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208—11—18 Ancv Rein Kolts vs. Mark Furlan
to appointed counsel is that such a right has been recognized to exist only where the litigant may
lose his physical liberty if he loses the litigation.”). Here, Plaintiff’s fundamental interests are not
at stake. He seeks money damages; the outcome of his malpractice suit will affect neither the
length nor sentencing of his incarceration.
Even in criminal cases, incarcerated pro se litigants are not entitled to greater assistance
than those who are represented by counsel.
Pro se indigent defendants should not be denied necessary services merely because they
refused the assistance of a public defender. At the same time, however, they are not
entitled to greater assistance than defendants who are represented by counsel.
State v. Handson, 166 Vt. 85, 92-93 (1996). Since this is a civil case that does not involve
Plaintiff’s life or liberty, he has even less claim to special assistance.
The Department of Corrections (DOC) has a specific policy for inmate telephone use. Per
Vermont Department of Corrections’ telephone policy, “[i]nmates should be allowed access to a
telephone on a regular basis to place calls with family, friends, attorneys, courts and public
officials. Telephone lines should be available for inmates to receive privileged communication
calls. Each inmate will be provided with an individual account which will be required for making
telephone calls.” Telephone Use, APA #13-043, DOC Policy #325, Vermont Dep’t of
Corrections (Dec. 31, 2013),
https://outside.vermont.gov/dept/DOC/Policies/Telephone%20Use%20-
%20Same%20as%20APA%20Rule13-043.pdf. The DOC Central Office is required to develop
procedures for telephone use, considering “the overall security, order and management
requirements of the facility, specific programs and individual inmates.” Id. at ¶¶ 6–7. If the
Plaintiff is not being afforded telephone use in accordance with DOC policy, he must file a
grievance and proceed accordingly. If the outcome of the grievance procedure is not satisfactory,
he can consider filing an action as provided in V.R.C.P. 75.
The Plaintiff apparently wants additional telephone access to facilitate discovery
“including scheduling of witnesses of [sic] depositions and access to the Clerk.” (Capitalization
omitted.) The Plaintiff is advised (once again) that there are forms of discovery other than
depositions. See generally V.R.C.P. 26. The Clark can be accessed by mail as well as by
telephone. Under the circumstances, the Court suggests that the Plaintiff avail himself of non-
telephonic means of communication.
ORDER
For the foregoing reasons, Plaintiff’s Motion for Specific Purposes is denied.
Electronically signed 2/11/2024 pursuant to VREF 9(d)
______________________________________
Michael S. Kupersmith
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Superior Judge
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