Carter v. Menard ( 2019 )

Carter v. Menard, 341-6-17 Wncv (Teachout, J., Apr. 8, 2019)
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 341-6-17 Wncv
BERNARD CARTER
Plaintiff
v.
LISA MENARD, Commissioner, Vermont
Department of Corrections, and CULLEN BULLARD,
Director of Classification
Defendants
DECISION
Cross-Motions for Summary Judgment
Bernard Carter is an inmate in the custody of the Commissioner of the Department of
Corrections. He seeks Rule 75 review of the Commissioner’s denial of a grievance by which he
sought the removal from his prison record of any evidence of a particular DOC determination
committing him to administrative segregation (ADSEG). He represents that he got ADSEG
solely because of a disciplinary conviction (DR), the DR was later expunged, and therefore the
ADSEG necessarily should have been expunged as well. The court denied a first round of cross-
motions for summary judgment to allow the parties more time for discovery. Following this
second round of cross-motions for summary judgment, the court notified the parties of its recent
decision in Pratt v. Menard, No. 419-7-16 Wncv (December 21, 2019) and allowed further
briefing. Both parties submitted additional briefing and the court now rules as follows.1
Mr. Carter asserts that he was convicted of a DR in March 2016 and given ADSEG, as a
consequence of the DR, also in March 2016. He represents that in January or February 2017, the
DR was expunged. The DR evidently was affirmed on administrative review but expunged by
agreement in the course of subsequent litigation. There is no dispute that the DR in fact was
expunged from his disciplinary record and the DR “packet,” to the extent it had been included in
the corresponding ADSEG file, was removed from it. The record of his ADSEG has not itself
been expunged.
Mr. Carter has variously claimed that his ADSEG record should be expunged due to a
court order or according to the terms of a settlement agreement from another case. The State
argues that Mr. Carter did not preserve these issues in the grievance he exhausted. See generally
Pratt v. Pallito, 2017 VT 22, 204 Vt. 313 (distinguishing preservation from exhaustion and
analyzing preservation in prisoner grievance case in depth). The purpose of the preservation
requirement is to ensure that the agency has a fair chance to address an issue before it is
presented to the judicial branch for further review. Id., 2017 VT 22, ¶ 16. “[T]o properly
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Pratt addressed issues related to the scope of expungement of DR records in particular circumstances that do not
apply in this case. Mr. Carter seeks expungement of his ADSEG records, not his DR records.
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). These issues were not presented to the DOC in Mr. Carter’s grievance and the State is
entitled to summary judgment to that effect.
Moreover, there is no record of any court order requiring expungement of the ADSEG
and Mr. Carter has formally admitted that his settlement agreement, regardless whether it was
written, requiring expungement of the DR did not require expungement of the ADSEG. See
Defendant’s Interrogatories, Requests to Produce, and Requests to Admit ¶ 14 at 4, and Mr.
Carter’s Responses ¶ 14 at 5 (filed Aug. 13, 2018). His argument is that it should be expunged.
Accordingly, the only issue before the court is the one Mr. Carter has principally
presented in this case: whether the expungement of a DR necessarily means that an ADSEG
prompted by the same underlying events also must be expunged. In his administrative grievance,
Mr. Carter asserted that he had been convicted of a major disciplinary violation, the violation
was later expunged, and therefore his ADSEG also should have been expunged. The ADSEG, in
his view, was a mere “collateral consequence” of the DR. The administrative response to his
grievance was that ADSEG is a separate administrative process from the disciplinary process
and expungement of a DR does not necessarily suggest that any ADSEG should be expunged.2
Inmate discipline is administered according to DOC Directive 410.01 (facility rules and
inmate discipline). Directive 410.01 is intended “to enforce rules and regulations and offer
options for the inmate to repair the harm caused by misconduct.” Id., Purpose. An accused
inmate is entitled to a hearing, the hearing officer makes findings, and sanctions—which may
include disciplinary segregation—are imposed. Id., Procedural Guidelines §§ 6–7. The inmate
may appeal to the superintendent. Id. § 9.
Administrative segregation arises from a different process. It may be imposed under
DOC Directive 410.03 (placement on administrative segregation). Administrative segregation is
used “1) to provide secure and safe housing, through a due process procedure, to inmates who
require a higher degree of control and supervision, and removal from general population because
of being charged with a serious rule violation; 2) to preserve the order and security of a
correctional facility; and 3) to manage inmate behavior.” Id., Policy. An inmate may be placed
in administrative segregation for a variety of reasons—it is not contingent on a DR conviction.
Id., Procedural Guidelines § 1. A hearing is held, either together with a disciplinary hearing, if
there is one, or separately. See id., §§ 1(a), 3. A hearing officer makes findings and the inmate
may appeal to the commissioner. Id. §§ 4, 5. Administrative segregation status then is reviewed
on a regular basis administratively. Id. § 6.
Mr. Carter’s ADSEG paperwork shows that the initial reason the DOC was prompted to
seek ADSEG was his conviction for the DR that, a year later, was expunged. However, the
ADSEG paperwork also shows that he was given ADSEG not merely because of that DR
conviction, but due to “staff statements” and his “prior disciplinary history.” See DOC ADSEG
2
The State argues in this case that, while expungement is an available administrative remedy for a DR in certain
circumstances, it is not an available administrative remedy for ADSEG in any circumstances. Due to the outcome of
the pending motions, it is unnecessary to address this argument in this case.
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Placement Report 1 (filed Aug. 13, 2018). Based on the evidence presented, the ADSEG hearing
officer made his own findings of fact related to the relevant underlying conduct and did not defer
to the DR hearing officer’s findings of fact. See DOC Hearing Report Form 1–2 (filed Aug. 13,
2018).
It is clear then that disciplinary and administrative segregation processes are separate
even where the reasons may be overlapping. Expungement of a DR related to those overlapping
circumstances does not, by itself, automatically mean that the ADSEG lacks a reasonable basis
or should be expunged. In this case, the separate ADSEG process, and not the DR, was the basis
for segregation. Thus, expungement of his DR did not require that his ADSEG should have been
expunged.
ORDER
For the foregoing reasons, the State’s motion for summary judgment is granted. Mr.
Carter’s motion for summary judgment is denied.
Dated at Montpelier, Vermont this ____ day of April 2019.
_____________________________
Mary Miles Teachout
Superior Judge
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