Fleming-Pancione v. Menard ( 2017 )

Fleming-Pancione v. Menard, 630-10-15 Wncv (Teachout, J., July 27, 2017)
[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. 630-10-15 Wncv
SHAYNE FLEMING-PANCIONE
Plaintiff
v.
LISA MENARD, Commissioner,
Vermont Department of Corrections
Defendant
DECISION
The State’s Motion to Dismiss and for Summary Judgment
Inmate–Plaintiff Shayne Fleming-Pancione initiated this case claiming that the Vermont
Department of Corrections had failed to place him in work camp, and give him good time credit
for work camp, due to an incorrect interpretation of its work camp eligibility policy or his
concurrent federal sentence. He claimed that this violated his federal Equal Protection Clause
and Vermont Common Benefits Clause rights. After his federal sentence expired, he amended
the complaint to assert several additional claims based on alternative reasons the DOC purported
to not place him in work camp. In all events, Mr. Fleming-Pancione has sought placement in
work camp or good time credit for work camp based on the belief that he is and has been eligible
for work camp and eligibility required placement or is sufficient to warrant good time credit.
The State filed a motion seeking dismissal and summary judgment. It argues: (1) DOC
decisions about work camp are not reviewable; (2) Mr. Fleming-Pancione has no right to choose
which facility the DOC places him in; (3) he lacks a liberty interest in good time to support any
due process claim; (4) he has failed to sufficiently plead an Equal Protection claim; (5) he has
failed to sufficiently plead a Common Benefits claim; (6) the DOC has not abused its discretion
by choosing to not place Mr. Fleming-Pancione in work camp; (7) the State is entitled to
summary judgment on the merits of the Equal Protection claim; (8) the State is entitled to
summary judgment on the merits of the Common Benefits claims; and (9) there is no basis for
any declaratory judgment in Mr. Fleming-Pancione’s favor.
Before this case was filed, the DOC had classified Mr. Fleming-Pancione as “medium
custody” because he was concurrently serving federal and Vermont sentences. Eligibility for
work camp requires, among other qualities, minimum custody. The DOC had asserted his
medium custody status as a reason for not placing Mr. Fleming-Pancione in work camp. Mr.
Fleming-Pancione disagreed that he was properly treated as medium custody based on the
federal sentence or that he should be denied work camp. He grieved that matter and a decision
of the Commissioner resulted. Then he filed this lawsuit to challenge the Commissioner’s
decision.
The originally asserted basis for denying work camp, the concurrent federal sentence,
became moot once the federal sentence expired. Mr. Fleming-Pancione presumably continues to
seek good time for the work camp placement to which he believes he was entitled. He also
disputes the DOC’s subsequently asserted bases for denying him work camp.
Mr. Fleming-Pancione’s principal claim is predicated on several apparent
misunderstandings. Work camp is a program of “rehabilitation through community service.”
Charbonneau v. Gorczyk, 2003 VT 105, ¶ 6, 176 Vt. 140. Generally, the DOC’s decisions about
any particular inmate’s programming are unreviewable. Rheaume v. Pallito, 2011 VT 72, ¶ 11,
190 Vt. 245. While Mr. Fleming-Pancione argues at length that he is and has been eligible for
work camp according to a proper interpretation of the DOC’s work camp eligibility policy, no
statute or rule requires the DOC to place any inmate, eligible or not, in work camp. Similarly, no
statute or rule requires the DOC to give an inmate who is in work camp, or who is eligible but
not in work camp, good time credit. Finally, nothing in the work camp eligibility policy prevents
the DOC from treating an inmate as medium custody due to a concurrent federal sentence. There
is no lawful basis for the claim that Mr. Fleming-Pancione raised administratively in his
exhausted grievance and included in his original and amended complaints.
Mr. Fleming-Pancione’s other claims were not properly preserved in an exhausted
grievance. Any issue raised in court must have been presented to the agency during that
administrative process.
“A party’s failure to exhaust administrative remedies permits a court to dismiss the action
for lack of subject matter jurisdiction.” Jordan v. State Agency of Transp., 166 Vt. 509, 511
(1997). Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), that same requirement
applies when a prisoner asserts a cause of action arising under the federal constitution. See
Johnson v. Louisiana, 468 F.3d 278, 280 (5th Cir. 2006) (explaining that this provision applies in
state court). “Preservation does not implicate a court’s subject matter jurisdiction over an entire
case. Instead, it affects a court’s authority to hear and decide an issue; we have consistently held
that we will not address issues that were not properly preserved before the relevant
administrative agency.” Pratt v. Pallito, 2017 VT 22, ¶ 16.
The grievance history in the record shows that the additional claims that Mr. Fleming-
Pancione raised in his amended complaint were never raised administratively. He therefore did
not preserve those claims.
He also did not properly preserve his constitutional claims. Pratt is clear that “to
properly preserve an issue, a party must present the issue to the administrative agency ‘with
specificity and clarity in a manner which gives the [agency] a fair opportunity to rule on it.’” Id.(citation omitted). The administrative record shows that the first mention of any constitutional
claim occurred in the last step of the grievance process, the appeal to the commissioner. Mr.
Fleming-Pancione wrote: “[T]he Vermont Common Benefits Clause [guarantees] me the equal
treatment as other prisoners or class of prisoners of the same custody level. To treat me
differently than other Vermont prisoners would be in violation of that law.” This is insufficiently
expressed and came too late in the grievance process to give the DOC a fair chance to
meaningfully rule, and the Commissioner in fact did not address the matter. No constitutional
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claims were preserved.
ORDER
For the foregoing reasons, the State’s motion for summary judgment is granted.
Dated at Montpelier, Vermont this ____ day of July 2017.
_____________________________
Mary Miles Teachout,
Superior Judge
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