Butler v. Henkin

Vermont
Fed
Superior ConrtB
nit3
Washingt9541302

VERMONT SUPERIOR K? CIVIL DIVISION
Washington Unit Case N0. 20—1—20 Wncv
65 State Street
Montpelier VT 05602
802-828-2091 Efi
www.verm0ntjudiciary.org

Brian Butler vs. Judy Henkin

Opinion and Order on the State’s Motion to Dismiss

Petitioner Brian Butler, a Vermont prisoner residing in a privately operated

out-of-state facility, seeks Rule 75 (mandamus) review of how statutory “inmate

recreation” funds are being spent in his facility.1 He asserts that they are going to

purposes not permitted by 28 V.S.A. § 816 and inconsistent with DOC policies? See

DOC Policies 308, 308.01, and 308.02.

Following the filing of Mr. Butler’s complaint, 35 pro-se prisoners

(Intervenors) individually filed nearly identical motions asking to “join” this lawsuit

as plaintiffs pursuant to Rule 20 (permissive joinder) and to certify the case as a

class action under Rule 23. None of these motions included a proposed pleading or

proffered any reason that intervention would achieve anything other than delay and

prejudice to the original parties. Surprisingly, however, neither the State nor Mr.

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Mr. Butler clarifies in his dismissal briefing that the asserted basis for Rule 75
relief is mandamus. The Court thus disregards the State’s arguments as to
prohibition and certiorari.
2 The alleged violations of § 816 are not pleaded with any specificity; it is unclear
what the purported Violations actually are. Mr. Butler filed his complaint pro se.
Now represented, his counsel has not amended the complaint to clarify it. Nor has
the State sought any more definite statement.
Butler objected to these motions, though they did not indicate their assent either.

In a series of entries, the Court granted, in part, and denied, in part, each motion as

follows: “The motions to join as parties are granted, and [specific intervenors] are

hereby joined as plaintiffs. The motions for class-action certification are denied

without prejudice.” Mr. Butler, represented by counsel, has never sought class

certification.

The State then filed a Rule 12(b)(1) motion to dismiss for lack of subject

matter jurisdiction. It argues that, as to the Intervenors (not Mr. Butler), none has

made any allegation to the effect that they exhausted their administrative

remedies. As to all parties, the State argues that mandamus review is unavailable

in this case because Mr. Butler has not alleged that 28 V.S.A. § 816 applies to the

out-of-state facility and, in any event, the DOC has discretion under § 816 as to how

inmate recreation funds are spent.

I Intervenors3 and Exhaustion

A party must exhaust all available administrative remedies before seeking

relief in court. Pratt v. Pallito, 2017 VT 22, ¶ 12, 204 Vt. 313, 317 (“The exhaustion

requirement bars a party from filing a case in the trial court before complying with

all available administrative procedures.”). Unlike Mr. Butler, none of the

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The Court questions whether the Intervenors appropriately sought joinder under
Rule 20, as opposed to intervention under Rule 24. See 7C Wright & Miller, Fed.
Prac. & Proc.: Civil 3d § 1901 (intervention is the “procedure by which an outsider
with an interest in a lawsuit may come in as a party though the outsider has not
been named as a party by the existing litigants”). Given the Court’s ruling as to
exhaustion, however, it need not resolve that procedural question.
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Intervenors allege that they exhausted their administrative remedies. The State

seeks dismissal as to them on this basis.

Some (25) of the 35 Intervenors have opposed dismissal.4 The opposition

filings take two forms, both generally asserting that “joinder” is appropriate. To the

extent that any address exhaustion, the only discernible argument appears to be

that they should be able to “borrow” Mr. Butler’s exhaustion for purposes of their

own claims. None otherwise asserts that he exhausted administrative remedies.

Intervenors’ argument is based on the approach, followed by some courts,

that would permit a party who did not exhaust to participate as a member of a

certified class so long as one member did (the “vicarious exhaustion doctrine”). See,

e.g., Mullinnex v. Menard, 2020 VT 23, ¶¶ 7, 10, 212 Vt. 432, 437–39.

There is no need to ponder the vicarious exhaustion doctrine in this case

because Intervenors’ requests to certify this case as a class action have been denied.

Further, all Intervenors all are pro se. They have no lawyer to provide legal

representation to the class. See Fed. R. Civ. P. 23(c)(1)(B), (g) (expressly requiring

the appointment of “class counsel”). While that requirement is not express in the

corresponding Vermont rule, Vt. R. Civ. P. 23, the underlying principle is the same:

a non-attorney generally may not represent other persons in court litigation. See

Vermont Agency of Nat. Res. v. Upper Valley Reg’l Landfill Corp., 159 Vt. 454, 455–

4 Intervenors’ opposition filings all were filed, evidently in a single batch, on

September 19, 2022.
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56 (1992). While Mr. Butler is represented, he did not request class certification,

and his counsel does not represent Intervenors.

The State has sought to dismiss all Intervenors for lack of exhaustion and, in

response, none has indicated, much less attempted to show, that he exhausted

administrative remedies. The State’s motion to dismiss is granted as to all

Intervenors is granted on this basis.

II. Mandamus

The State argues that there can be no viable mandamus claim in this case

because Mr. Butler has not alleged that 28 V.S.A. § 816 applies to his out-of-state

facility; and, in any event, he could have no clear and certain right to relief because

§ 816 broadly delegates discretion over inmate recreation funds to the DOC. While

the State characterizes this dismissal argument as one of subject-matter

jurisdiction, might be better characterized as asserting a failure to state a claim

under Rule 12(b)(6) insofar as the State is arguing a deficiency in the asserted cause

of action rather than that the Court lacks the power to act on the type of claim

presented in this case. Either way, the Court concludes that the argument fails in

this instance.

The Vermont Supreme Court has described the familiar standard for Rule

12(b)(6) motions to dismiss for failure to state a claim as follows:

“A motion to dismiss . . . is not favored and rarely granted.” This is
especially true “when the asserted theory of liability is novel or
extreme,” as such cases “should be explored in the light of facts as
developed by the evidence, and, generally, not dismissed before trial
because of the mere novelty of the allegations.” In reviewing a motion
to dismiss, we consider whether, taking all of the nonmoving party’s

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factual allegations as true, “‘it appears beyond doubt’ that there exist
no facts or circumstances that would entitle the plaintiff to relief.” We
treat all reasonable inferences from the complaint as true, and we
assume that the movant’s contravening assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 316–17 (citations

omitted).

The State’s contention that the complaint is deficient because Mr. Butler

failed to allege that § 816 applies to the out-of-state facility is meritless for at least

two obvious reasons. First, he did make that allegation. See Complaint at 2

(referring to the relevant statute and policies and stating, “This applies to Inmates

who are out of state as Well as Those who are in State.”). Second, even if did not

state that explicitly, it is manifestly implicit.

Otherwise, the Court is satisfied that Mr. Butler’s claim is sufficiently alleged

to survive Vermont’s liberal Rule 12(b)(6) standard. “A court can issue a writ of

mandamus . . . only under certain circumstances: (1) the petitioner must have a

clear and certain right to the action sought by the request for a writ; (2) the writ

must be for the enforcement of ministerial duties, but not for review of the

performance of official acts that involve the exercise of the official’s judgment or

discretion; and (3) there must be no other adequate remedy at law.” Petition of

Fairchild, 159 Vt. 125, 130 (1992). The State argues that § 816 is broadly

discretionary and, therefore, is not an appropriate subject for mandamus review.

The Court disagrees.

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Section 816 provides as follows:

The Department shall accept monies generated by commissions on
telephone services, commissary sales, and sales of approved items not
available on commissary by the Department to inmates at its
correctional facilities and shall establish with such monies an inmate
recreation special fund. The fund shall be used to provide postage to
inmates in a manner consistent with Department policy. The fund
may be used for costs associated with the oversight and accounting of
inmate cash accounts. The fund may be used, at the discretion of the
Commissioner, to hire persons or purchase services, equipment, and
goods to establish or enhance recreation activities for inmates confined
in any of the Department’s facilities, and for voluntary inmate
contributions that promote the restoration of crime victims or
communities. The inmates, through a process established by the
inmate recreation fund committee, may also choose to create a loan
fund, the operation of which shall be governed by rules adopted
pursuant to 3 V.S.A. chapter 25, from which offenders may borrow in
order to help them obtain housing upon release from incarceration.

The statute affords the DOC ample discretion. Nonetheless, it also uses the

term shall three times, and shall usually connotes a nondiscretionary duty.

Further, in listing several ways in which the DOC may spend the subject funds, the

Legislature may have intended to cabin the DOC’s discretion to spend those funds

in the ways set out in the statute. It is, thus, possible that there is a

nondiscretionary, ministerial component to the DOCs duties under the statute. No

more is needed for the Court to conclude that the Complaint passes muster at the

threshold.

To the extent that the State argues that the form of relief specifically sought

by Mr. Butler—court supervision of how the DOC properly spends the disputed

funds—falls outside the scope of mandamus relief, the Court simply notes that such

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an issue relates to the type relief available in the event the claim succeeds, not

whether Mr. Butler has stated a claim in the first instance.

Conclusion

All Intervenors are dismissed from this case for failing to exhaust their

administrative remedies. Mr. Butler is the sole remaining plaintiff, and mandamus

review is the sole remaining claim in this case.

For the foregoing reasons, the State’s motion to dismiss is granted, in part,

and denied, in part.

Electronically signed on Wednesday, March 29, 2023, pursuant to V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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