Ferraro v. Baker ( 2021 )

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 319-9-20 Wncv
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Ferraro vs. Baker et al
ENTRY REGARDING MOTION
Title: Motion for Summary Judgment; Cross Motion for Summary Judgment ; (Motion:
1; 2)
Filer: Patrick T. Gaudet
Filed Date: March 18, 2021; May 18, 2021
Cross-Motions for Summary Judgment
This case is an appeal from a disciplinary proceeding against inmate Christopher Ferraro because
of contraband found in his cell during a cell search. Mr. Ferraro and the State each have filed motions
for summary judgment.
The facts, which are not in dispute, are as follows:
On July 25, 2020, corrections officers conducted a cell search (shakedown) of Mr. Ferraro’s
prison cell and found a small piece of wire curled at both ends (paper clip gauge) and a magnet which
was holding the wire to a metal surface out of sight. CO Carlson was asked to respond after the items
were found, and he took a statement from Mr. Ferraro concerning the items, which were regarded as
“dangerous.” Mr. Ferraro told Mr. Carlson that the wire was somehow to be used for a modified lighter
and admitted ownership of the magnet. Mr. Carlson issued a disciplinary report on the same day
charging Mr. Ferraro with violating Major A-07.1
1 A07, for possession of items dangerous to institutional security, prohibits: “Possession, manufacture or
introduction of any item that constitutes a danger to the order of the facility including, but not limited to,
weapons, dangerous instruments, escape tools, or communication devices (e.g., cell phones).”
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Mr. Carlson notified Mr. Ferraro on July 29 that a hearing would be held the next day. Mr.
Ferraro asked for a continuance so he could speak with a hearing assistant. The continuance was at
least tacitly granted (no record of the request and result is in evidence but the hearing did not occur as
scheduled). The hearing then was held on August 5. The hearing officer found Mr. Ferraro guilty of the
alleged violation based on his admissions.
Mr. Ferraro raises three issues on appeal: (1) the hearing was held outside the time frame
provided by DOC rule, which amounts to a violation of due process; (2) the DR investigator was a person
involved in the event itself, again contravening DOC rule; and (3) the evidence was insufficient to
support the disciplinary ruling.
Analysis
The disciplinary process is governed by 28 V.S.A. § 851. It is supplemented by DOC Directive
410.01, which fleshes out the procedure and reads in relevant part:
a. A disciplinary hearing may not be held sooner than 24 hours after the Notice of Hearing is
served upon the inmate unless they waive this time period by signing a Notice of
Hearing/Waiver of 24 Hour Notice of Hearing (Attachment 3). A disciplinary hearing will be held
no later than seven (7) business days from the issuance of the DR, four (4) days if the inmate
was moved to segregation. Day one (1) begins at the start of the first full business day after the
DR is issued. . . .
b. Continuances . . .
ii. Requested by the inmate:
The inmate may request a continuance for good cause (such as a witness not being available)
which may be granted by the Hearing Officer for up to two (2) business days. The Hearing
Officer will document the basis for such good cause on the Hearing Report Form.
Here, the hearing was held shortly after the time prescribed by rule. Mr. Ferraro was not being held in
segregation pending the hearing. Neither the statute nor the rule includes any penalty to the DOC for
having a hearing outside the time frames in the rule. The department does know how to penalize itself
in that fashion. See Directive 410.01, Procedural Guidelines § (9)(c) (“Failure to respond to the appeal
within thirty (30) calendar days will result in the dismissal of the disciplinary action, and staff will
expunge the DR packet from the inmate’s file and the database.”).
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The court acknowledges Mr. Ferraro’s point that inmates are often held strictly to various
deadlines and standards. Nonetheless, the court does not regard the law to require such reciprocity in
the circumstances presented here. The key issue for the court includes prejudice to the inmate because
of the failure to timely hold the hearing—no prejudice is alleged or demonstrated to have occurred. Cf.
White v. Baker, 146-11-20 Cacv (Teachout, J.) (arriving at a different result in materially different
circumstances; Mr. White was imprisoned pending a hearing on a furlough violation, which was held to
be prejudicial).
In short, as this court has ruled many times with regard to the timing of the hearing under
Directive 410.01, the rule is directory rather than mandatory, and an inmate is not entitled to relief for
delay so long as it is not unreasonably protracted or prejudicial. See Hartland Prop. LLC v. Town of
Hartland, 2020 VT 56, ¶ 16 (discussing mandatory and directory timeframes). The extremely short delay
in this case was neither protracted nor prejudicial. There is no basis for any relief due to it.
The same consideration applies to the assertion that the DOC rules precluded the involvement
of Officer Carlson. No prejudice is asserted. Mr. Ferraro admitted to possession of the wire and
magnet. Moreover, it is not clear to the court that Mr. Carlson had any actual direct involvement in the
“incident” in any event. He did not perform the shakedown and was not present when the contraband
was initially found.
The last issue is the question of sufficiency of the evidence. The law requires this court to affirm
the disciplinary ruling if there is any evidence to support it. King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt.
220. The hearing officer found dangerousness. However, the decision lacks any explanation as to how
the items found could be dangerous to the security of the institution. The court is aware that Mr.
Ferraro stated that he intended to use the wire to make a “lighter,” and a lighter may well be sufficiently
dangerous. Perhaps it is obvious to the hearing officer and others in the DOC as to how one can fashion
a lighter out of a small wire and magnet. However, there was no lighter, and it is not apparent to the
court how Mr. Ferraro could have done this. Mr. Ferraro might as well have said he was going to build a
lightsaber from the parts found. The decision needed to have some explanation as to how this was
possible, without which it is simply too vague for the court to reliably review.
The court remands the decision to the DOC for further findings and explication as to how the
items found are dangerous to institutional security, which is a very serious offense.
Order
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Both motions for summary judgment are granted in part and denied in part. This case is
remanded for further findings as set forth above. Alternatively, the DOC may choose to vacate and
expunge the DR.
Electronically signed on 6/11/2021 2:07 PM, pursuant to V.R.E.F. 9(d)
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