Burke v. Menard ( 2017 )

Burke v. Menard, 793-12-15 Wncv (Teachout, J., Sept. 15, 2017)
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 793-12-15 Wncv
JAMES T. BURKE
Plaintiff
v.
LISA MENARD, Commissioner,
Vermont Department of Corrections
Defendant
DECISION
The State’s Motion for Summary Judgment
Plaintiff James Burke, an inmate in the custody of the Commissioner of the Vermont
Department of Corrections, claims in his amended complaint that the Department of Corrections
has: (1) wrongfully charged him for the cost of photocopies for his legal filings even though he is
indigent; (2) wrongfully charged him 5 cents per page rather than 4; (3) violated his
constitutional right to access the courts in an unspecified manner; and (4) violated his Equal
Protection rights by charging male inmates in out-of-state facilities more for photocopies than it
charges male inmates in Vermont facilities. Mr. Burke is represented by Kelly Green, Esq. The
State seeks summary judgment on all claims.
Charging for photocopies
Mr. Burke alleges that he is indigent, that he is charged for photocopies for legal
documents nevertheless, and that a DOC directive prevents photocopy charges in that situation.
See Directive 385.01 § 4.3.2.1.11 (“Indigent inmates will not be charged.”).
The DOC’s facts are that it charges all inmates 5 cents per page for legal photocopies. If
an inmate is “indigent” and cannot reasonably pay for the copies upfront, the copies nevertheless
are provided to the inmate for use in his legal cases. However, the expense is attributed to that
inmate’s account, which may become overdrawn, and settled when, or if, funds become
available. The DOC’s interpretation of its own policy is not unreasonable and the court defers to
it.
The DOC further argues that Mr. Burke is not indigent as that term is defined in its
policies and he does not qualify as indigent under its definition. Its definition of indigence is
drawn from a different directive that excludes inmates from being considered indigent if they are
capable of working, work is available, and yet they refuse to work. See Directive 409.05,
Definitions, “Indigent inmate.” It is undisputed that Mr. Burke is capable of working, work is
available, and he refuses to work. He thus is not indigent as defined in See Directive 409.05.
He argues, however, that the definition of indigence from Directive 409.05 should not
apply under Directive 385.01. He also argues that he cannot work because he must and in fact
does spend all of his reasonable available time working on his lawsuits.
Directive 385.01 uses the concept of indigence but does not independently define it. It is
not unreasonable for the DOC to use an express definition found elsewhere in its policies. The
definition itself has a reasonable basis and it would not make sense to use different definitions of
the same term in different parts of DOC policy. Moreover, Mr. Burke’s preference to work on
his lawsuits and refuse all work opportunities provided by the DOC is a choice as to how to use
his time but the fact that this is the choice he makes does not exempt him from the definition of
indigence under DOC policy and the consequences of that definition. In any event, Mr. Burke
has not been denied photocopies despite any inability to pay for them upfront.
5 cents versus 4 cents
Mr. Burke complains that he has been overcharged 1 cent per page because Directive
385.01 § 4.3.2.1.11 permits a 4-cent per page charge while the DOC imposes a 5-cent charge.
On its face, § 4.3.2.1.11 expressly says that the cost is 4 cents per page. It is undisputed,
however, that to order photocopies, an inmate must fill out a form, which is referred to in §
4.3.2.1.11 and which specifies that the per page cost is 5 cents. Evidently, at some point after
Directive 385.01 was adopted, the Secretary of State amended the schedule of fees of public
records requests, increasing the photocopy charge to 5 cents per page. The DOC used that new
5-cent amount for its policy on inmate photocopies, and the form inmates use to request copies
expressly so states. The DOC has not, however, amended the language of Directive 385.01 to
correspond to the new price reflected on the incorporated form.
These circumstances are unnecessarily confusing, but it is clear that the DOC is required
to charge 5 cents per page for copies and that fact is stated on the form, thus giving adequate
notice. The DOC has not been overcharging Mr. Burke.
Access to courts
Without explanation, in his amended complaint and in argument, Mr. Burke asserts that
the DOC has violated his right to access the courts. To show a violation of the constitutional
right to access the courts, one must show that a “nonfrivolous legal claim had been frustrated or
was being impeded.” Lewis v. Casey, 518 U.S. 343, 353 (1996) (footnote omitted). Considering
the undisputed facts and the rulings above, Mr. Burke has not shown that he has any
nonfrivolous legal claims or that any of his claims have been frustrated or impeded by the DOC.
Equal Protection
In his amended complaint, Mr. Burke claims a violation of the Equal Protection Clause,
asserting that the DOC charges male out-of-state inmates more for photocopies than it charges
male in-state inmates. He does not appear to pursue this claim in opposition to summary
judgment and nothing in the record of this case explains this claim more fully. It is undisputed
that the DOC’s photocopy policy applies to in-state and out-of-state inmates alike.
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ORDER
For the foregoing reasons, the State’s motion for summary judgment is granted.
Dated at Montpelier, Vermont this ____ day of September 2017.
_____________________________
Mary Miles Teachout
Superior Judge
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