marcell v. deml ( 2024 )


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  •                                                                                                       Vermont Superior Court
    Filed 03/04/24
    Orleans Unit
    VERMONT SUPERIOR COURT                                       1
    fl4                        CIVIL DIVISION
    Orleans Unit                                                                       Case N0. 23-CV-03676
    247 Main Street
    NewportVT 05855
    802-334-3305                                           fifi
    WWW.Vermontjudiciary.org
    Joshua Marcell v Nicholas Deml et a1
    ENTRY REGARDING MOTION
    Title:            Motion for Summary Judgment; Cross Motion for Summary Judgment ; (Motion: 2;
    3)
    Filer:            Kassie R. Tibbott; Annemarie Manhardt
    Filed Date:       December 13, 2023;]anuary 15, 2024
    The motion is GRANTED IN PART and DENIED IN PART.
    This is a Rule 75 appeal seeking to set aside a disciplinary determination based on two
    procedural defects, namely the lack of a Witness that Petitioner claims he intended to call to testify
    and the superintendent’s failure to specifically address this issue in his decision to affirm the hearing
    officer.
    Rule 75 appeals are not de novo appeals or direct appeals, but rather they are limited judicial
    reviews of a lower tribunal or an administrative decision that falls into one of three types. Rbezmme I).
    Pal/#0, 
    2011 VT 72
    , 1H] 5—8.    In this case, the review falls under the certiorari—type of review, which
    looks to the applicable law in the substantive area governing the case to define the nature of the
    review and right. Mason p. Tbeflom’ Scbool Bd, 
    142 Vt. 495
    , 497 (1983). It is not an appeal to correct
    mere errors made in the exercise of lawful jurisdiction. Rhodes z). Town of Woodstock, 
    132 Vt. 323
    , 325
    (1974). It is limited to a review that ensures the inferior tribunal stays within the limits of its
    jurisdiction and that such jurisdiction is exercised with regularity. 
    Id.
     These standards shape the
    Court’s review of each of the issues raised in the parties’ competing summary judgment motions.
    Petitioner’s motion raises two arguments under Rule 75. The first is a due process challenge.
    The allegation is that Petitioner wanted to have a witness at his disciplinary hearing, the Department
    knew of this wish, and the Department failed to provide the witness. This resulted in an alleged
    constitutional defect in the proceeding by failing to allow Petitioner to put on the necessary evidence
    and defense. The second challenge is based on administrative rules governing the grievance of
    Entry Regarding Motion                                                                         Page 1 of 6
    23—CV—03676 Joshua Marcell v Nicholas Deml et a1
    disciplinary decisions, specifically Section 410.01 that requires the superintendent to specifically
    address all appeal issues and respond within 30 days.
    In contrast, Respondent’s motion seeks affirmance of its underlying decision based on the
    administrative record and existence of some evidence in support of the determination that Petitioner
    violated the rules governing administration and consumption of medication designed to prevent
    diversion of such mediation to other inmates. .
    The nature of certiorari review is that each of these issues represents a separate channel that
    the Court must examine, and which does not preclude the other as each has its own applicable area
    of substantive law that governs the rights and responsibilities of the parties.
    Undisputed Facts
    Based on the parties’ filings, the following facts are undisputed. The Department of
    Corrections convicted Petitioner Marcell of misuse of authorized medication in violation of a prison
    rule, Major B-30. This rule prohibits “misuse of authorized medication, including, but not limited to,
    inmates transferring or selling their medication to another inmate.” Department of Corrections
    Directive 410.01 at 19. DOC’s initial evidence consisted of an incident report by a corrections
    officer who witnessed the incident and accused Petitioner of improperly having some of his
    sublingual Medication Assisted Treatment (MAT) medication on top of his tongue. On the Notice
    of Hearing Form dated July 25, 2023, Petitioner indicated his desire to call Nurse Lisa (the MAT
    distribution nurse) and the reporting officer as witnesses at his disciplinary hearing.
    The disciplinary hearing was held on August 2, 2023. At the start of the disciplinary hearing,
    the hearing officer asked Petitioner Marcell if he still wished to have the reporting officer present.
    Petitioner stated that he did not and waived one of the two requested witnesses. The hearing officer
    acknowledged that Petitioner still requested Nurse Lisa to testify. Petitioner explained that Nurse
    Lisa would testify that the medication was in Petitioner’s mouth. The hearing officer told Petitioner
    that he was not sure if Nurse Lisa was on-site, but that he would make the attempt to summon her if
    the hearing reached that point.
    After admission of the disciplinary report and entry of Petitioner’s plea of not guilty, the
    hearing officer allowed Petitioner to testify. Petitioner stated that he had placed the medication in
    his mouth as directed. The hearing officer then asked Petitioner a few questions and then asked
    Entry Regarding Motion                                                                       Page 2 of 6
    23-CV-03676 Joshua Marcell v Nicholas Deml et al
    Petitioner if there was anything else he would like to add. Petitioner l said, “Nope.” The record
    shows that Petitioner had been enrolled in the MAT program for approximately two-years; that the
    protocol for receiving MAT medication is under the tongue where it is rapidly absorbed and avoid
    the risk that it can be transferred to another inmate. When the officer inspected the Petitioner, he
    found, and Petitioner admitted to having the majority of his MAT medication, on the top of his
    tongue where it remained unabsorbed. Rather than put it below his tongue, Petitioner spit out the
    medication upon discovery.
    The hearing officer went into deliberations and found Petitioner guilty of misusing his
    medication. Petitioner appealed his disciplinary conviction to the superintendent on August 8, 2023.
    Petitioner raised two issues: (1) that he had taken his MAT medication correctly; and (2) that the
    hearing officer did not call his requested witnesses, Reporting Officer Houle and Nurse Lisa. The
    superintendent denied Petitioner’s appeal on August 11, 2023, writing, “(1) You admitted in your
    DR hearing your [sic] aware the medication is to be under your tongue & it was not.” The
    superintendent did not explicitly respond to Petitioner’s appeal issue regarding the Department’s
    failure to call his requested witnesses.
    Legal Analysis I: Some Evidence
    The Department’s argument for summary judgment relies upon the “some evidence in the
    record” standard. Herring v. Gorczyk, 
    173 Vt. 240
    , 243 (2001) (citing Superintendent v. Hill, 
    472 U.S. 445
    , 455 (1985)). The Department notes that the record shows that Petitioner had a history of
    receiving MAT medication and was aware of the protocol for receiving the mediation below the
    tongue Petitioner was found to have put the medication above his tongue where it remained
    unabsorbed. This evidence is sufficient for the Department to draw the finding that Petitioner
    misallocated the medication and was attempting to divert it. Whether or not the officer’s evidence
    was credible or not or whether the finding reached by the Department that such behaviors are
    consistent with the diversion of MAT medication is outside the scope of the Court’s review. Herring
    , 
    173 Vt. at 243
    . By statute, the MAT programs is under the purview of the Department of
    Corrections 28 V.S.A. § 801b. The Department also has broad authority to make rules and
    regulations governing the administration of such medication and to impose discipline on inmates
    who violate such rules. 28 V.S.A. §§ 101, 601, 801 and 851. The Court is obligated to exercise
    deference to the Department and its expertise in administering this MAT program and detecting
    diversion and efforts to misappropriate medication that is consistent with its expertise. Plum Creek
    Entry Regarding Motion                                                                       Page 3 of 6
    23-CV-03676 Joshua Marcell v Nicholas Deml et al
    Main Timberlands, LLC v. Vermont Dept of Forest, Parks & Recreation, 
    2016 VT 103
    , ¶ 31. Under this
    standard, the record is sufficient to affirm the Department’s imposition of discipline on Petitioner.
    Legal Issue II: Superintendent’s Failure to Specifically Address Petitioner’s Arguments
    The next issue is Petitioner’s second argument. Notwithstanding the evidentiary record,
    Petitioner contends that the superintendent’s failure to address Petitioner’s contention that he was
    not allowed to call Nurse Lisa constituted a violation of Section 410.01 of the Department’s own
    directives. The section that Petitioner specifically relies upon is found on page 14 of the Directive
    and states:
    The Superintendent may, upon their review of the appeal, deny the requested relief,
    or direct any other appropriate action; e.g., dismiss the appeal, order a new hearing,
    order a modification of findings reducing sanctions, etc. The Superintendent will
    specifically address all appeal issues raised by the inmate in the appeal. The
    Superintendent will respond to the appeal within thirty (30) calendar days from the
    date the appeal was delivered by the inmate to a staff member at the facility. 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.
    Department of Corrections Dir. 410.01(9)(c), at 14.
    Petitioner argues that a failure to address his witness and due process issue constituted an
    incomplete response and violates Directive 410.01(9)(c)’s 30-day requirement. The Court does not
    understand the plain language of this directive to support Petitioner’s interpretation. The Directive
    ties the nullification and dismissal to a delay by the Superintendent in filing any response. As the
    Vermont Supreme Court has noted, the idea if to avoid untimely delays and prejudice that accrues
    through protracted deliberation. Loveland v. Gorczyk, 
    173 Vt. 501
    , 501–02 (2001) (mem.). As
    Loveland notes, the contents of the decision are not relevant to whether the nullification provisions
    apply, only whether the superintendent has made the decision. 
    Id.
     In this respect, the provisions of
    this section are similar an applied in a manner that is akin to the “deemed approved” language in
    zoning statutes. 
    Id. at 504
     (Skoglund, J. dissenting). The Court has long held that these type of
    provisions are not short-cuts to avoid the merits of a decision but a remedy to avoid “indecision and
    protracted deliberations . . . .” In re McEwing Services, LLC, 
    2004 VT 53
    , ¶ 21.
    In the present case, there is no evidence of delay, indecision, or protracted deliberation.
    While the superintendent did not expressly address the issue that Petitioner has raised, nothing in
    Entry Regarding Motion                                                                       Page 4 of 6
    23-CV-03676 Joshua Marcell v Nicholas Deml et al
    the decision would cause Petitioner to understand or be under the ambiguity that his argument had
    found purchase with the superintendent or was still under consideration. Moreover, the
    requirement to address all arguments is not tied to a specific remedy. Given that Petitioner has
    appealed and continued his argument, the Court finds that this error is harmless and has not
    impinged upon Petitioner’s ability or right to appeal. For these reasons, the Court finds no legal
    basis to set aside Petitioner’s discipline based on the superintendent’s failure to expressly address
    Petitioner’s argument concerning witnesses.
    Legal Analysis III: Lack of Due Process
    Petitioner’s primary argument on appeal concerns the failure to call Nurse Lisa during his
    disciplinary hearing.1 While the Department notes that Petitioner had two opportunities to either
    delay the hearing (when informed that Nurse Lisa was likely unavailable) or to call her (at the end of
    his testimony when the hearing officer asked Petitioner if he had anything further), these “missed
    opportunities” depend, in part, on making factual findings. Instead, the Court’s analysis in King v,
    Gorczyk is instructive. 
    2003 VT 34
    , at ¶ 10. A party seeking to assert a due process claim from the
    failure to allow a witness or piece of evidence at a hearing must show prejudice resulting from the
    omission of the witness or evidence. In King, the Vermont Supreme Court found no prejudice and
    by extension no violation of an inmate’s due process based on the Department’s omission of
    specific laboratory test because even if the results had been admitted, they would have showed the
    inmate to be under the influence of THC and in violation of the rules. 
    Id.
    In the present case, Petitioner asserts that if Nurse Lisa had testified, she would confirm that
    Petitioner had the medication in his mouth. This may be true, but it is not a contested fact. The
    Department concedes that Petitioner had the medication in his mouth. It is where Petitioner had
    the medication in his mouth—specifically atop the tongue where it would not immediately be
    absorbed and where it could more readily be diverted. Nothing in Petitioner’s proffer indicates that
    Nurse Lisa could have testified differently about the location of the medication, and the record
    indicates that the location was not disputed.
    1 Petitioner does not dispute the record, which shows that he waived his right to call CO Houle as a witness.
    Entry Regarding Motion                                                                                 Page 5 of 6
    23-CV-03676 Joshua Marcell v Nicholas Deml et al
    Based on these uncontested facts, the Court finds no prejudice attaching to the failure to call
    Nurse Lisa as a witness, and nothing in Petitioner’s argument demonstrates prejudice from this
    defect.
    ORDER
    The Department’s Motion for summary judgment is Granted. Petitioner’s Motion for
    summary judgment is Denied. The Department’s discipline against Petitioner is Affirmed, and the
    present appeal is dismissed.
    Electronically signed on 3/4/2024 3:17 PM pursuant to V.R.E.F. 9(d)
    __________________________________
    Daniel Richardson
    Superior Court Judge
    Entry Regarding Motion                                                                       Page 6 of 6
    23-CV-03676 Joshua Marcell v Nicholas Deml et al
    

Document Info

Docket Number: 23-cv-3676

Filed Date: 3/15/2024

Precedential Status: Precedential

Modified Date: 3/15/2024