Dow v. Menard

Dow v. Menard, 425-7-17 Wncv (Teachout, J., July 2, 2018)
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 425-7-17 Wncv
MILES O. DOW, JR.
Plaintiff
v.
LISA MENARD, Commissioner,
Vermont Department of Corrections
Defendant
DECISION
The State’s Motion to Dismiss
Plaintiff Miles Dow, an inmate in the custody of the Vermont Department of Corrections,
seeks Rule 75 review of his disciplinary conviction for fighting with his cellmate, assault without
bodily harm resulting. In his administrative disciplinary appeal, he asserted that there is “new
evidence” and that the evidence against him was insufficient to support his conviction. The
superintendent rejected his appeal because he had admitted his guilt and waived his rights to a
hearing. Here, he renews the grounds for appeal he asserted administratively. He also asserts (in
his amended complaint) that the hearing officer induced his waiver with an off-the-record
promise that, among other things, he would not be removed from the Risk Reduction Program.
However, he asserts that after filing grievances complaining about certain corrections officers, in
retaliation, he was terminated from the Program and his grievance was denied.
The State has filed a motion to dismiss. It argues that most of the issues Mr. Dow is
attempting to raise here were waived or not preserved in an administrative appeal or grievance
that he exhausted, and his retaliation claim(s) are insufficiently pleaded to state a claim.
“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). “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 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. Dow’s allegation of “new evidence” was presented to the DOC administratively.
However, neither administratively nor here has he explained in any way what the new evidence
is and what impact he thinks it could have. The issue of new evidence was not presented to the
DOC with specificity and clarity in a manner which gave it a fair opportunity to rule on it. It
thus was not preserved for review here.
Mr. Dow also asserted administratively that his conviction should be overturned due to
“non-corroborating staff reports, lack of evidence and incomplete investigation of incident.”
These are sufficiency-of-the-evidence arguments. They are foreclosed by Mr. Dow’s admission
of guilt and waiver of an evidentiary hearing.
Mr. Dow’s claim that he was promised that he would not be removed from the Risk
Reduction Program and thus either he should not have been removed from the program or his
conviction was wrongly induced by a false promise appears nowhere in any grievance or
disciplinary appeal. The issue was not presented to the DOC administratively and thus was not
preserved for review here.
Mr. Dow’s claims that his removal from the Risk Reduction Program and the denial of
his grievance about staff conduct were retaliation for having complained about staff conduct is
insufficiently pleaded. “We understand the concern that retaliation claims by prisoners are prone
to abuse. We support the notion that ‘wholly conclusory’ complaints alleging retaliation can be
dismissed at the pleading stage.” In re Girouard, 2014 VT 75, ¶ 16, 197 Vt. 162 (citation
omitted). Mr. Dow offers nothing more than the wholly conclusory attribution of retaliatory
intent to two administrative decisions without any more specific allegations in support of a
cogent prima facie case. This is insufficient.
ORDER
For the foregoing reasons, the State’s motion to dismiss is granted.
Dated at Montpelier, Vermont this ____ day of June 2018.
_____________________________
Mary Miles Teachout,
Superior Judge