Morgan v. Menard ( 2017 )

Morgan v. Menard, 288-5-17 Wncv (Teachout, J., Oct. 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. 288-5-17 Wncv
MATTHEW J. MORGAN
Plaintiff
v.
LISA MENARD et al.
Defendants
DECISION
The State’s Motion to Dismiss
Plaintiff–Inmate Matthew Morgan initiated this case claiming that the Department of
Corrections unlawfully seized legal documents from his possession. The documents at issue
apparently relate to other inmates’ legal claims, not Mr. Morgan’s. However, he apparently
claims a right to assist other inmates that has been impeded by the document seizure. The State
has filed a motion to dismiss arguing that the court lacks subject matter jurisdiction because Mr.
Morgan never pursued and completed an administrative grievance.
“This Court has consistently held that when administrative remedies are established by
statute or regulation, a party must pursue, or ‘exhaust,’ all such remedies before turning to the
courts for relief.” Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997) (emphasis added);
see also Pratt v. Pallito, 2017 VT 22 (discussing distinction between exhaustion and
preservation).
Mr. Morgan concedes that he never pursued or completed the DOC’s ordinary grievance
process. See DOC Directive 320.01. Instead, he grieved directly to the Commissioner herself
pursuant to 28 V.S.A. § 854(2), which provides: “All inmates shall be allowed to communicate
grievances directly to the commissioner, and an inmate’s right to file grievances shall not be
restricted.” The Commissioner responded as follows:
You have communicated a grievance directly to the Commissioner
pursuant to 28 V.S.A. § 854(2). Your grievance has been reviewed and it has
been determined that your grievance is not an emergency grievance and does not
allege serious employee misconduct, criminal activity or sexual, physical or
psychological abuse or assault.
In other words, the Commissioner received the grievance and declined to exercise her discretion
to take action or further address its substance without proper exhaustion of the ordinary
grievance process.
Mr. Morgan’s reliance on his direct grievance under § 854(2) in opposition to dismissal
here is misplaced. While § 854(2) preserves a right to communicate grievances directly to the
commissioner, that does not mean that doing so alone necessarily avoids the obligation to
exhaust administrative remedies under the normal grievance procedure. This court has so ruled
many times. See, e.g., Wheelock v. Centurion of Vermont, No. 257-5-16 Wncv (Vt. Super. Ct.
March 3, 2017) (Teachout, J.); Wool v. Cohen, No. 825-12-15 Wncv (Vt. Super. Ct. May 27,
2016) (Tomasi, J.); Wool v. Pallito, No. 455-7-15 Wncv (Vt. Super. Ct. Apr. 18, 2016) (Tomasi,
J.); Ladd v. Hoffman, No. 438-7-08 Wncv (Vt. Super. Ct. May 18, 2009) (Toor, J.).
Here, the Commissioner’s decision to not address the substance of Mr. Morgan’s
grievance pursuant to § 854(2) was well within her discretion. Mr. Morgan nevertheless was
able to communicate that grievance to her directly. That ability to communicate is preserved by
§ 854(2). He was then, however, required to pursue and complete the ordinary grievance policy
to exhaust his administrative remedies. Section 854(2) is not an escape hatch that enables
inmates to simply skip the regular grievance process.1
Mr. Morgan did not exhaust his administrative remedies prior to filing this action. This
court therefore lacks subject matter jurisdiction.
ORDER
For the foregoing reasons, the State’s motion to dismiss is granted.
Dated at Montpelier, Vermont this ____ day of October 2017.
_____________________________
Mary Miles Teachout,
Superior Judge
1
The ordinary grievance policy contains a provision that requires staff to immediately forward a grievance alleging
“serious employee misconduct” to their supervisor and requiring the supervisor to forward it immediately to the
superintendent and the Department’s hearings administrator, who forwards it to the “Agency of Human Services
Personnel Administrator for investigation and response.” DOC Directive 320.01, Directive Procedural Guidelines ¶
14. This provision is triggered simply by filing an ordinary grievance with the qualifying allegations.
2