Douglas Cavett v. Thomas Donovan ( 2017 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2017-167
OCTOBER TERM, 2017
Douglas Cavett } APPEALED FROM:
}
} Superior Court, Orleans Unit,
v. } Civil Division
}
}
Thomas Donovan } DOCKET NO. 232-10-16 Oscv
Trial Judge: Robert R. Bent
In the above-entitled cause, the Clerk will enter:
Plaintiff inmate appeals the superior court’s dismissal of his declaratory judgment action
seeking a declaration that the Chittenden County State’s Attorney is compelled to investigate and
prosecute Department of Corrections personnel whom he claims conspired to prolong his prison
sentence and keep him from his son. We affirm.
This appeal concerns part four of the notorious paper-throwing incident. In 2010, plaintiff
pled no contest to a charge of aggravated sexual assault and was sentenced to a term of five-to-
fifteen years, all suspended except for four years. One of the probation conditions imposed by the
sentencing court required him to complete a treatment program for sex offenders. The genesis of
plaintiff’s ongoing litigation is a prison disciplinary report (DR) conviction for assault based on
an April 2013 incident in which plaintiff threw a wadded piece of paper at a correctional officer.
At least partially as the result of the DR violation, plaintiff was terminated from the treatment
program and was found to have violated the probation condition requiring him to successfully
complete the program.
The first time this matter came before this Court was plaintiff’s appeal of the superior
court’s determination that he violated the probation condition requiring him to complete the
treatment program. Initially, in making this determination, the superior court refused to review
the underlying DR violation that resulted in plaintiff’s removal from the program. We reversed,
remanding the matter for the superior court to determine whether plaintiff had engaged in physical
violence or threats of physical violence, which was the basis for his removal from the treatment
program. State v. Cavett, 2015 VT 91, ¶ 19, 199 Vt. 546. On remand, the superior court again
concluded that plaintiff had violated the programming condition, finding that plaintiff had struck
the correctional officer with the paper ball he threw at her and that his behavior was threatening
under the circumstances. The court also found that the paper-throwing incident was not an isolated
incident, but rather the culmination of a series of incidents for which plaintiff had already been
placed on probation from the treatment program. The court revoked plaintiff’s probation and
imposed the underlying sentence. Plaintiff again appealed, and we affirmed the superior court’s
decision. See State v. Cavett, No. 2016-243, 2017 WL 2374819 (Vt. May 30, 2017) (unpub.
mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo16-243.pdf
[https://perma.cc/D6DW-V3ZZ]. In so doing, we rejected plaintiff’s “primary argument” that the
paper ball he threw did not hit the correctional officer, stating that we had “reviewed the video
recording and there is nothing in the recording to contradict the trial court’s finding that the paper
did hit the officer.” Id. at *3.
Meanwhile, plaintiff filed a complaint under Vermont Rule of Civil Procedure 75
challenging the DR violation resulting from the paper-throwing incident. We affirmed the superior
court’s decision upholding the violation. See Cavett v. Pallito, No. 2015-383, 2016 WL 6593839(Vt. Nov. 4, 2016) (unpub. mem.),
https://www.vermontjudiciary.org/sites/default/files/documents/eo15-383.pdf
[https://perma.cc/8CU5-5TYP]. In so doing, we once again rejected plaintiff’s “main argument”
that the paper he threw did not strike the correctional officer, noting that nothing in the video of
the incident reviewed by the trial court and this Court “demonstrates that the hearing officer
committed clear error in finding that the paper hit” the correctional officer. Id. at *2. We also
rejected plaintiff’s challenge to the superior court’s finding “that there was no evidence to support
plaintiff’s claims that the disciplinary violation was the result of a conspiracy against him or was
being used to retaliate against him.” Id.
Defendant also appealed a superior court decision upholding the Vermont Parole Board’s
denial of his parole. The superior court dismissed plaintiff’s 120-page complaint, which raised
conspiracy claims and sought declaratory relief. In affirming the superior court’s decision, we
noted that plaintiff’s claims of error on appeal centered on the Board’s failure to view a video
recording of the paper-throwing incident. We concluded that any error in the Board’s failure to
view the video was harmless, given that we had “already rejected plaintiff’s suggestion that the
video demonstrates that the allegations against him were false.” In re Cavett, No. 2016-055, 2017
WL 262052, at *2 (Vt. Jan. 12, 2017) (unpub. mem.),
https://www.vermontjudiciary.org/sites/default/files/documents/eo16-055.pdf
[https://perma.cc/43PA-69JH].
In this declaratory judgment action, plaintiff filed suit against the acting Chittenden County
State’s Attorney in his official capacity based on his failure to investigate and prosecute the DOC
personnel whom plaintiff claims conspired to present false testimony concerning the paper-
throwing incident, resulting in his removal from the treatment program, the rejection of his parole,
the extension of his incarceration, and his inability to be with his son. The superior court dismissed
the appeal on several grounds, concluding that: (1) a state’s attorney’s decision whether to file
criminal charges is discretionary and therefore not subject to civil liability under 24 V.S.A.
§ 361(a) or the Vermont Tort Claims Act; (2) plaintiff has no viable constitutional claims to
support his request for declaratory relief; (3) plaintiff’s remedy for the relief he seeks—release
from incarceration—must be sought in a petition for post-conviction relief and is not available by
way of the Declaratory Judgment Act; and (4) to the extent plaintiff is asserting a claim under the
Public Records Act, he failed to allege that he had exhausted his administrative remedies.
Plaintiff’s arguments on appeal are comprised, for the most part, of allegations of a
conspiracy that he now claims has expanded from DOC personnel to other state employees,
including defendant. We affirm the superior court’s decision. The statute that plaintiff relies upon,
24 V.S.A. § 361(a), sets forth the general duties of state’s attorneys, among them the duty to
prosecute offenses within the county. Notwithstanding its use of the word “shall,” the statute does
not compel a state’s attorney to prosecute a particular case anytime someone claims that a crime
has been committed. See State’s Attorney v. Attorney General, 138 Vt. 10, 13 (1979) (construing
§ 361(a) and stating that “[t]he Office of the State’s Attorney, as with the local prosecutorial
authority in most states, is granted broad discretion in deciding whether or not to initiate a criminal
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prosecution”); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (holding that “a citizen
lacks standing to contest the policies of the prosecuting authority when he himself is neither
prosecuted nor threatened with prosecution” because “a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another”). This is most particularly
true here, where the alleged offense is conspiring to make false statements regarding a DR violation
that has been upheld by the courts based on the courts’ review of video evidence supporting the
violation. The superior court correctly concluded that there are no constitutional or statutory
grounds for compelling the Chittenden County State’s Attorney to prosecute correctional officials
in this case. Moreover, plaintiff’s request that the superior court declare that the Chittenden
County State’s Attorney must uphold the Public Records Act to allow any person to review and
criticize the state’s attorney’s decisions cannot survive the dismissal of the other components of
plaintiff’s complaint because plaintiff failed to request any specific documents in his complaint,
let alone exhaust his administrative remedies as to obtaining any such documents. Accordingly,
the superior court did not err in dismissing plaintiff’s complaint. See Davis v. Am. Legion, Dep’t
of Vt., 2014 VT 134, ¶ 12, 198 Vt. 204 (in reviewing motions to dismiss, we apply same standard
as trial court and “consider whether it appears beyond doubt that there exist no facts or
circumstances that would entitle the plaintiff to relief” (quotation omitted)).
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Beth Robinson, Associate Justice
_______________________________________
Karen R. Carroll, Associate Justice
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