Bartshe v. Menard ( 2017 )

Bartshe v. Menard, 267-5-16 Wncv (Teachout, J., Dec. 15, 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. 267-5-16 Wncv
JAMES A. BARTSHE
Plaintiff
v.
LISA MENARD, Commissioner,
Vermont Department of Corrections,
and MARBLE VALLEY REGIONAL
CORRECTIONAL FACILITY
Defendants
DECISION
Defendants’ Motion to Dismiss, filed July 27, 2017
Plaintiff James A. Bartshe, an inmate in the custody of the Commissioner of the
Department of Corrections, seeks Rule 75 review of the Department of Corrections’ response to
his request for disability accommodations related to his hearing loss. The State seeks dismissal,
arguing that the DOC granted certain accommodations and the others raised in this case were
never presented to the DOC administratively with any specificity and thus were not preserved for
review here.
Mr. Bartshe attached his administrative paperwork to his complaint. That paperwork
reflects numerous complaints about his hearing aids and proper cleaning of them as well as
certain requested accommodations related to his hearing loss. That paperwork also reflects
numerous responses from DOC personnel granting in whole or in part some of his requests. His
claims related to his hearing aids have been resolved and dismissed from this case by stipulation.
DOC rules provide a specific, abbreviated procedure for requesting disability
accommodations. DOC Directive 371.01, Procedural Guidelines §§ 12, 13. That process
includes a written accommodation request, which the DOC’s ADA Director will respond to
within 10 days (unless additional time is necessary). If an offender is dissatisfied with the
response, he may appeal directly to the commissioner. Id. § 13(a). Pursuant to § 13(b), if the
issue is disability discrimination other than an unsatisfactory response to an accommodation
request, the matter is grieved under the ordinary grievance policy, Directive 320.01.
The administrative record includes several informal complaints and grievance forms 1, 2,
and 3, all filed pursuant to Directive 320.01. None of these culminated in the final step of the
grievance process, an appeal to the commissioner. Directive 320.01, Procedural Guidelines §
(15)(b). Thus, Mr. Bartshe did not exhaust his administrative remedies with regard to any of
these grievances and they will not be addressed further here.
The record also includes an accommodation request form dated by Mr. Bartshe on
December 30, 2015. The request evidently was denied and he did not appeal to the
commissioner. He filed a second accommodation request form on February 23, 2016. There is
no indication on the form of any administrative response. He appealed to the commissioner on
March 8, 2016.
The commissioner granted the appeal to the following effects:
The facility will provide you with opportunity [sic] to use the TeleTYprewriter
[sic] (TTY) phone in an area deemed appropriate by the Superintendent.
Additional, the staff will be made aware of your hearing loss and instructed to
physically find you and make sure you’re aware of being called if it appears you
have not heard the Officer.
Letter from Heidi Fox, MSN, RN to James Bartshe (dated April 18, 2016). The scope of this
appeal is properly limited to the February 23 accommodation request and appeal to the
commissioner.
Mr. Bartshe filed his Rule 75 complaint in this case on May 6, 2016 without mentioning
the relief granted by the commissioner. He asserted the need for the following accommodations:
(1) an alert system of some kind; (2) ASL (American Sign Language) interpreter services for
disciplinary hearings; (3) an unspecified accommodation for commissary orders; (4) some real
time phone alternative; and (5) medical issues related to his hearing aids which have since been
dismissed by stipulation.
The State argues that the commissioner granted the relief requested on issues 1 (an alert
system) and 4 (a real time phone alternative), issue 5 no longer is in controversy, and issues 2
and 3 were never presented to the DOC administratively and thus were not properly preserved
for review here. Mr. Bartshe responds that the DOC is generally aware of his view that he has
not been accommodated extensively enough that he has “equal access” to services and
opportunities available to non-hearing impaired inmates, and that the exhaustion and
preservation principles of Pratt v. Pallito, 2017 VT 22, do not apply to this case. He further
argues that if the DOC was confused about any accommodations he desires, it should have made
more of an effort to discuss the matter with him.
Mr. Bartshe seeks Rule 75 review in this case. See Reporter’s Notes, V.R.C.P. 75 (Rule
75 “provides a procedure applicable whenever county court review . . . is available as a matter of
general law by proceedings in the nature of certiorari, mandamus, and prohibition.”). He has not
directly asserted an ADA claim. The exhaustion and preservation issues described in Pratt fully
apply to this case. “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 based on a federal right. 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
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that we will not address issues that were not properly preserved before the relevant
administrative agency.” Pratt, 2017 VT 22, ¶ 16. “[T]o 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).
Mr. Bartshe’s February 23, 2016, accommodation request form does not reflect any
requests for sign language interpreters or any accommodation related to commissary requests.
These issues were not fairly presented to the DOC and thus were not preserved for review here.
The court will not address them further.
Mr. Bartshe also argues that the relief he was granted, an alert system and a real time
phone alternative, have proven (presumably after this case was filed) to be insufficient in certain
respects due to the ways in which the DOC has implemented them. That may be so, but no such
complaints appear in his February 23, 2016 accommodation request form. If there are specific
deficiencies, he must present them to the DOC with enough specificity that it has a fair
opportunity to address them and avert litigation. This did not happen here. The court will not
address these issues further on this record.
More generally, Mr. Bartshe objects that the DOC did not adequately engage with him to
clarify any “vague” requests. The DOC’s responsibility is to provide reasonable
accommodations that address the limitations caused by Mr. Bartshe’s disability. It is not
necessarily obligated to provide the specific accommodations Mr. Bartshe would prefer. Mr.
Bartshe also does not assert that he has any inability or difficulty in requesting accommodations.
This is not a case about vague requests that the DOC misunderstood because it refused to engage
him on the matter. The accommodations he pursues here either were granted or were not
presented to the DOC at all. Asking for an alert system and getting one does not create ongoing
jurisdiction in this court to manage its implementation. The matter, if it remains in controversy,
should be presented to the DOC formally.
ORDER
For the foregoing reasons, the Defendants’ Motion to Dismiss is granted.
Dated at Montpelier, Vermont this ____ day of December 2017.
_____________________________
Mary Miles Teachout
Superior Judge
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