Abel v. Doc

Vermont Superior Court
Filed 01/0
Washington Cae

SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 23-CV-03230
65 State Street
Montpelier VT' 05602
802-828-2091
www.vermontjudiciary.org

Michael Abel v. Vermont Dept of Corrections

Ruling on Small Claims Court Appeal

Plaintiff/Appellant Michael Abel appeals from a judgment issued by the

Small Claims Court ("SCC") in favor of Defendant/Appellee the Vermont

Department of Corrections (DOC). Mr. Abel is an inmate in the custody of DOC.

The dispute arises out of three claims filed by Mr. Abel asserting that DOC was

negligent in handling and caring for items of his personal property, which were

taken either by DOC staff or other inmates. The DOC denied liability. The SCC

held an evidentiary hearing at which both sides presented testimony and other

evidence. The SCC issued an oral ruling and a written judgment order in favor of

DOC.

The Court has listened to the tape recording of the hearing below and

entertained oral argument in this appeal. While Appellee appeared for oral

argument, Appellant either failed to or was unable to appear. The Court makes the

following determinations.

Summary of Key Facts Found and Rulings Made by the SCC

Claims for lost or stolen property are governed by 32 V.S.A. § 932 and DOC

Directive 321.02, available at https://outside.vermont.gov/dept/DOC/Policies/

1
Inmate%200ffender%20Claims%20-%20Facility%20and%20Field%20Directive.pdf.

The Directive sets out a two-step process to resolve such claims. Directive 321.02(a)

and (i). The Directive admitted below! and Section 932(b) require that DOC act on

such claims within 90 days, or they are deemed allowed. Directive 321.02(3)(b).

In this instance, the SCC concluded that Mr. Abel had filed three

administrative claim forms regarding his lost personal effects, satisfying the first

step of the policy. Directive 321.02(2)(a). They were submitted in September 2019,

were received by staff at DOC, but were not acted upon. In March 2020, Mr. Abel

filed a request for review of that lack of decision at the next step of the process, an

appeal to the Director of Policy Development and Offender Due Process and the

Director of Facilities Operations or the Field Services Executive. Directive

321.02(2)(i). DOC did not act on the appeal. While the SCC determined that the

appeal was properly taken, it faulted Mr. Abel for waiting until long after the 90-

day period had run to make the appeal. Given those findings, the Court determined

that Mr. Abel had exhausted the administrative remedy provided, but that the 90-

day rule did not apply. Directive 321.02(3)(b).

'The Directive admitted in the SCC and the testimony of DOC representative Mr.
Turner were consistent in stating that the 90-day requirement remained in place as
of the date of hearing. It appears, however, that the Directive was amended in 2019
to delete the 90-day rule. See Interim Memo: Directive 321.02, effective November
1, 2019, available at https://outside.vermont.gov/dept/DOC/Policies/Interim%20
Memo0%200n%20Inmate%200ffender%20Claims%20Form%20-%20Field%20
and%20Facility.pdf. DOC has not argued either below or here that the Interim
Memo applies. Any such contention is waived. Nonetheless, even if the Court were
to consider that document, Section 932(b) would still impose a 90-day limit on DOC
action under these circumstances.
2
The SCC proceeded to the merits of the dispute and concluded that Mr. Abel

had not provided sufficient evidence to prove that the loss of his personal articles

was due to the negligence of DOC. The SCC found that the most likely scenario was

that the property was taken by other inmates and that DOC had no duty to

anticipate the criminal acts of third parties.

Standard of Review

An appeal from a small claims judgment is heard and decided "based on the

record made in the small claims procedure." 12 V.S.A. § 5538. The "appeal is

limited to questions of law." V.R.S.C.P. 10(d). If the SCC has applied the correct

law, this Court will affirm its "conclusions if they are reasonably supported by the

findings." Maciejko v. Lunenburg Fire Dist. No. 2, 171 Vt. 542, 543 (2000) (mem.).

In turn, the findings of fact must be supported by the evidence, Brandon v.

Richmond, 144 Vt. 496, 498 (1984), and such findings "must be construed, where

possible, to support the judgment," Kopelman v. Schwag, 145 Vt. 212, 214 (1984)

(emphasis added). The Court's review of the SCC's legal conclusions, however, is

"non-deferential and plenary." Maciejko, 171 Vt. at 543 (quoting N.A.S. Holdings,

Inc. v. Pafundi, 169 Vt. 437, 439 (1999)).

Analysis
For the following reasons, the Court concludes that the SCC made a legal

error in refusing to enforce the 90-day rule, which would have deemed Mr. Abel's

claims allowed based on DOC's failure to respond to them in a timely manner.

3
First, there was no dispute below that Mr. Abel submitted the three claims

forms in September 2019, that they were received by DOC staff, and no decision on

them was ever made by DOC.

Second, Directive 321.02 provides: "The Department of Corrections must

issue a determination within ninety (90) days of the date on which the

inmate/offender submitted their Report of Lost or Damaged Property, or the claim

will be deemed granted." 32 V.S.A. § 932(b) has the same deadline for

administrative action.

Third, despite DOC's arguments on appeal, the SCC found that Mr. Abel had

submitted an appeal from the failure of DOC to act on his initial complaints in

March 2020. The DOC also did not act on that appeal.

Fourth, Mr. Abel filed the Small Claims complaint within 18 months of the

date of loss, as required by Section 932.

In the Court's view, the above conclusions warrant a finding that Mr. Abel's

claims must be deemed granted as a matter of law.

The SCC's opposite conclusion was based on its determination that Mr. Abel

should have taken his appeal earlier and not waited for the 90-day period to lapse.

The Court disagrees.

Nothing in Directive 321.02 states that a claim will be deemed denied after a

certain number of days or that an inmate has only a certain number of days to take

an appeal. The Court cannot read such requirements into the Directive, nor can it

4
place on inmates the requirement of divining such unstated timelines from the

existing language.

If DOC wishes to have such a provision it has the power to amend the

Directive to insert one. Indeed, DOC has done so in its existing Grievance Policy,

which states that a grievance will be deemed denied after a certain period. See

Policy 320 (Grievance System), Procedural Application, § (C)(9) ('If the grievant

does not receive a timely response to a grievance, the grievant may presume that

the grievance was denied, and may submit an appeal to that decision (see Section

E., Appeals below);" and § (E)(5) ("Individuals who do not receive a timely response

to an appeal may presume the appeal was denied and may consider their

administrative remedies exhausted."), available at https://outside.vermont.gov/dept/

DOC/Policies/Grievance%20System%20Policy.pdf. That Policy also provides specific

timelines within which an inmate must take an appeal. See Id. § E (grievants are

to file an appeal "within 10 business days of receiving the grievance decision").

Directive 321.02 contains no similar provisions.

If such amendments are made to Directive 321.02, inmates will be required to

act according to such altered requirements in order to exhaust their administrative

remedies. Until then, however, the Directive contains no demand that an appeal be

taken prior to the expiration of the 90-day period and no statement that an inmate

may deem a claim denied after a certain period of time.

DOC's contention that the 90-day period should be construed to run from the

date of the submission of the appeal to Mr. Turner is not persuasive. The language

5
of both the Directive and Section 932 foreclose such an argument. The Directive

requires DOC action within "90 days of the date on which the inmate/offender

submitted their Report of Lost or Damaged Property." Section 932 requires action

"90 days after the grievance was filed." In any event, in this case, the State's

interpretation would not change the outcome because no DOC response was made

even within 90 days of the submission of the appeal to Mr. Turner.

Here, Mr. Abel did what the Directive required of him: he submitted his

claims, and he appealed. DOC took no action at either step within the timelines

provided by the Directive and the statute. Per the Directive and Section 932, his

claims are "deemed granted."

Mr. Abel's allowed claims, however, are also subject to the limitations of the

Directive. That Directive places a $50.00 limit on each individual claim, which is

binding on Mr. Abel. Directive 321.02(h). DOC did not challenge Mr. Abel's

evidence with regard to the value of his lost property. Per the exhibits admitted

and Mr. Abel's testimony, the value of his lost property is: Pencils ($30.00); Hair

Clippers ($280.00 reduced to the maximum $50.00); Lost Clothing ($25.29); and

Lost Clothing ($10.46). Mr. Abels total compensable loss is $115.75. Judgment will

enter in that amount.

6
Conclusion

In light of the foregoing, the SCC judgment is reversed. Judgment is entered

in favor of Mr. Abel in the amount of $115.75.

Electronically signed on Tuesday, January 9, 2024, per V.R.E.F. 9(d).

T othv . Tomasi
Superior Court Judge

7