pecor v. menard ( 2024 )

STATE or VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit QNDE -8 FP 405 Docket No. 202-3-17 Wnev
DAVID PECOR
Plaintiff ae eK
v.
LISA MENARD, Commissioner,
Vermont Dep’t of Corrections
Defendant
DECISION
Cross-Motions for Summary Judgment
Defendant the Vermont Department of Corrections disciplined Plaintiff-Inmate David -
Pecor for attempting to introduce drugs into prison through two visitors. Mr. Pecor seeks Rule
75 review of that determination, arguing that the evidence is insufficient to show that he had any
foreknowledge of or involvement in any such scheme. The parties have filed cross-motions for
summary judgment.
The basic narrative is undisputed. On January 21, 2017, a correction officer found a
“slug” of drugs on the walkway near the prison toward the public parking lot. It was presumed
that a recent visitor had dropped it accidentally. The most recent visitors were identified as two
women who had come to see Mr. Pecor and were still at the facility. When they left, they
walked around the walkway and parking lot obviously looking for something on the ground and
in their car. Mr, Pecor later spoke with one of the visitors on the phone. The two spoke about
the “key” getting lost and whether it had been found. It had not.
Based on those facts, Mr, Pecor was alleged to have attempted to introduce drugs into the
facility. After a hearing, he was found guilty. The finding essentially required two factual
inferences: that the two women possessed and then dropped the slug, and that the drugs were
intended for Mr. Pecor and he was in on the plot.
In Vermont, due process requires the DOC to prove a disciplinary infraction by a
preponderance of the evidence at the disciplinary hearing. LaFaso y. Patrissi, 161 Vt. 46, 51
(1993). On review, the court will uphold the DOC’s determination if “there is any evidence in
the record to support the conclusion reached by the disciplinary board.” Superintendent v. Hill,
472 U.S. 445, 455-56 (1985); Lafasa, 161 Vt. at 49 (prison determination “must be upheld if it is
supported by ‘some evidence’ in the record” (citation omitted)). “Requiring a modicum of
evidence to support a decision . . . will help to prevent arbitrary deprivations without threatening
institutional interests or imposing undue administrative burdens.” Hill, 472 U.S. at 455.
Mr. Pecor effectively concedes that the evidence was sufficient to support the inference
that his visitors possessed the slug and then dropped it in the walkway. He argues, however, that
there is no evidence from which one could infer that he was in on any plot to introduce the drugs
into the facility. He argues that the phone conversation about the “key”—even if “key” is
understood to be code for drugs—could only show awareness that the women had attempted to
introduce the drugs after the fact. It could not, he argues, show that he knew anything about the
attempt before the fact.
The court is not persuaded. The transcript of the phone conversation provides adequate
evidence from which one could infer that Mr. Pecor was speaking in “code” about a plot to
introduce drugs into the facility and how it went wrong. It was reasonable in these
circumstances to infer that the visitors were bringing the drugs to Mr. Pecor and he knew it. The
“some evidence” standard does not require more.
ORDER
For the foregoing reasons, Mr. Pecor’s motion for summary judgment is denied and the
State’s is granted.
Dated at Montpelier, Vermont this gm day of December 2017.
Mary(! Miles Teachout,
Superior Judge
S83 ROR VERMONT
SUPERIORCOURT &” “x CIVIL DIVISION
Washington Unit Docket No. 202-3-17 Wncv
2 DEC -8:'P & 05
David Lee Pecor,
Plaintiff
“ FiLE JUDGMENT
Lisa Menard,
Shannon Marcoux,
Defendants
This action came before the court for consideration of the parties’ Cross Motions for
Summary Judgment. The Court, on this day, having denied Plaintiff's Motion for Summary
Judgment and granted Defendant’s Motion for Summary Judgment,
It is ORDERED and ADJUDGED that Plaintiff shall take nothing on the claim..
Date at Montpelier, Vermont this 8" day of December, 2017.
cis Len hecBa St
Hon. MaryMiles Teachout
Superior Court Judge