Gouette v. Deml

Vermont Superior Court
Filed 04/10/25
Rutland Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Rutland Unit Case No. 23-CV-04052
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

Zackary Gouette v Nicholas Deml, Commissioner VT DOC et al

ENTRY REGARDING MOTION
Title: Motion to Dismiss Amended Complaint (Motion: 4)
Filer: Alexander Hunter
Filed Date: October 03, 2024

This is an action brought by Zackary Gauette against the Commissioner of the Department
of Corrections Nicholas Dem! ("Commissioner") and the State of Vermont. Petitioner filed an
amended complaint on July 12, 2024. Respondents filed a motion to dismiss on October 3, 2024.
Petitioner filed a response on March 10, 2025 and Respondents filed a reply on March 21, 2025. For
the following reasons, the motion is GRANTED IN PART and DENIED IN PART.

Standard of Review

In deciding a motion to dismiss under V.R.C.P. 12(b)(6), courts must "assume as true the
nonmoving party's factual allegations and accept all reasonable inferences that may be drawn from
those facts." Murray v. City of Burlington,_2012 VT 11,9 2. A motion under V.R.C.P. 12(b)(6) may
not be granted "unless it appears beyond doubt that there exist no facts or circumstances that would
entitle the Petitioner to relief." Id. (citations and quotations omitted). In accepting factual
allegations a true, courts are "not required to accept as true conclusory allegations or legal
conclusions masquerading as factual conclusions." Colby v. Umbrella, Inc., 2008 VT 20, q 10.

Factual Allegations

Petitioner is currently in the custody of the Commissioner of the Department of Corrections
serving a sentence. Petitioner was previously housed at Marble Valley Regional Correctional Facility
in Rutland, Vermont. On July 24, 2023, Petitioner leaned against a wall in the Bravo Unit of the
Facility. Petitioner was electrocuted due to a live, exposed, and uncapped wire inside and outside of
a junction box. This electrocution caused pain and numbness to Petitioner's hand and fingers. This
has impeded Petitioner's ability to use his hand to write and work. Respondents failed to keep
Petitioner safe by allowing a live, exposed, and uncapped wire to be on the wall of Bravo Unit.

Petitioner filed a request for medical care from WellPath, the medical provider utilized by
the Commissioner for health care in correctional facilities, Ccon July 24, 2023. Petitioner filed a
second request for medical care on August 3, 2023. Petitioner filed an informal grievance on August

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23-CV-04052 Zackary Gouette v Nicholas Deml, Commissioner VT DOC et al
2, 2023 regarding the outlet and two formal grievances regarding the outlet on July 30, 2023 and
August 6, 2023. Petitioner’s August 6, 2023 formal complaint states as follows:
On 7-24-23 I was shocked by open wires on B-Pod in Marble Valley Correctional
Facility. It burned the end of my finger pretty badly. Also I have incurred several
health problems that I have addressed w/ medical staff. This shock was not a result
of malicious actions by myself. I was just standing there talking to inmate Randy
Kolbe leaning on the wall and it just happened. I now can’t feel the ends of my
fingers + also have at tic in my back sometimes. I have all medica slips. The extra
conduits need to be taken out. Thank you for your time.

The Department of Corrections’ (the Department) response was, “BGS and the grievance
coordinator will be notified.” Petitioner did not agree to this plan and filed a notice of appeal with
the Commissioner on August 6, 2023. In the appeal, Petitioner indicates that “BGS and GTL need
to be held responsible for their negligence!!”
On September 8, 2023, the Commissioner determined the issue raised by Petitioner in his
August 6, 2023 grievance had been resolved. The Commissioner stated that the wire had been
capped to prevent further electrocution incidents. In addition the Commissioner stated, “Your
concerns have been addressed by facility medical staff. Please submit another sick slip if you feel
you need additional assistance.” No additional sick slips were submitted by Petitioner regarding any
medical condition resulting from the July 24, 2023 incident. Petitioner filed this case on September
27, 2023.
Analysis
Respondents have raised several arguments in their motion to dismiss. These include: 1)
Petitioner failed to exhaust his administrative remedies; 2) Petitioner’s did not submit a Certificate of
Merit regarding his claim regarding medical care; 3) Absolute and sovereign immunity as to
Commissioner Deml; and 4) Petitioner failed establish negligence. Each argument will be addressed
separately.
1. Exhaustion of Administrative Remedies
The court does not have jurisdiction to hear Petitioner’s claims regarding lack or appropriate
medical care because Petitioner failed to exhaust his administrative remedies. “A trial court lacks
subject matter jurisdiction to hear a case if a party fails to exhaust administrative remedies.” Pratt v.
Pallito, 2017 VT 22, ¶ 15. The Vermont Supreme Court in Mullinnex v. Menard, 2020 VT 33, held
that an inmate who believes they are not receiving medical care as required by 28 V.S.A. § 801 must
exhaust the Department’s grievance process before initiating civil litigation.
Petitioner’s August 6, 2023 grievance does not put the Department or the Commissioner on
notice that he believe he was not receiving appropriate medical care. The grievance starts with
reporting being electrocuted by a live wire in Bravo Unit and identifies the harm it caused. The
grievance does note Petitioner suffered medical injuries that caused him to consult with medical
staff. The only request made, however, is that the conduits be removed. Petitioner did not identify
any lack of proper medical care in the grievance, nor did he identify any change or request in medical
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care. The August 6, 2023 grievance was the only grievance that was appealed to the Commissioner.
In the appeal to the Commissioner Petitioner only requested that those likely responsible for
maintenance and repair of the wires--BGS and GTL—“be held responsible for their negligence,”
and did not allege inadequate medical care, or request further or different care.
Petitioner did not submit any additional grievance from the July 24, 2023 incident where he
alleged lack of proper medical care by the Department. As such, Petitioner did not exhaust his
administrative remedies. The Department’s grievance policy, Directive 320, requires an inmate to
initiate an informal grievance. Ex. B, p. 7. If the informal response is unsuccessful, the inmate may
initiate a formal grievance. Id. If the inmate is not satisfied with how the Department responds to
the formal grievance, they may appeal that decision to the Commissioner. Id. at 12. The
Commissioner’s decision is considered final with no further administrative appeals. Id. at 15.
Petitioner did not follow this process as to any requested medical care needed as a result of the July
24, 2023 incident. Although Petitioner sought medical attention, as demonstrated by the requests
for care to WellPath, he did not grieve any lack of response to those requests. Because Petitioner
failed to exhaust his administrative remedies regarding medical care, the court lacks jurisdiction to
hear those claims and they are dismissed.
2. Lack of Certificate of Merit
The court does not address this argument as Petitioner’s claims regarding medical care are
dismissed for lack of jurisdiction.
3. Absolute and Sovereign Immunity
Commissioner Deml is entitled to absolute immunity under the alleged facts of this case.
“Absolute immunity applies to judges, legislators and the state's highest executive officers when they
are acting within their respective authorities.” LaShay v. Dept. of Social and Rehabilitation Services, 160
Vt. 60, 64 (1993). The Vermont Supreme Court has held that the Commissioner of the Department
of Corrections is one of “the state’s highest executive officers” for the purposes of absolute
immunity. Curran v. Marcille, 152 Vt. 247, 249 (1989). The Commissioner is thus entitled to absolute
immunity if the acts complained of were within his official duties. Id.
The Commissioner was required to respond to any grievance appeal pursuant to DOC
Directive 320. His decision on September 8, 2023 that the issue was resolved is therefore protected
by absolute immunity. Petitioner does not identify any other acts by the Commissioner in his
complaint. Accordingly, the Commissioner is entitled to absolute immunity under the allegations in
this case.
“Sovereign immunity protects the State and its components from liability for money
damages unless immunity is waived by statute.” Wool v. Menard, 2018 VT 23, ¶ 8. The State of
Vermont has waived sovereign immunity to the extent set forth in the Vermont Tort Claims Act. 12
V.S.A. Chap. 189. This Act “provides that the State can be held liable for injury to persons or
property caused by the negligent or wrongful act or omission of a State employee while acting in the
scope of his or her employment, provided that the claim is ‘comparable to a recognized cause of
action against a private person.’” Wool, 2018 VT 23, ¶ 9 (quoting Sabia v. State, 164 Vt. 293, 298
(1995)). The Act states “the exclusive right of action shall lie against the State of Vermont; and no
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such action may be maintained against the employee or the estate of the employee.” 12 V.S.A. §
5602(a). Thus, any action for negligence by employee of the Department, whether it be the
Commissioner or an employee of a correctional facility, must be brought against the State rather
than the employee.
The Commissioner is protected by absolute and sovereign immunity, thus he must be
dismissed from the action.
4. Negligence
Petitioner has established the essential elements of negligence to survive a motion to dismiss.
“To support a negligence claim, a plaintiff must show that the defendant owed the plaintiff a duty
that was breached, which proximately caused injury to the plaintiff.” LeClair v. LeClair, 2017 VT 34,
¶ 10. Vermont Rule of Civil Procedure 8(a) requires that “a claim for relief shall contain a short and
plain statement of the claim showing that the plaintiff is entitled to relief, and a demand for
judgment for the relief to which he deems himself entitled. A pleading is sufficient if it gives fair
notice of the claim and the grounds upon which it rests.” Bressler v. Keller, 139 Vt. 401, 402-3 (1981).
Upon review of a motion to dismiss, the question is “whether the bare allegations of the complaint
are sufficient to state a claim.” Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 7. In this case,
Petitioner has alleged that while in custody of the Commissioner of the Department of Corrections,
he was injured due to leaning against an exposed wire. As noted above, a motion under V.R.C.P.
12(b)(6) may not be granted “unless it appears beyond doubt that there exist no facts or
circumstances that would entitle the Petitioner to relief.” Murray v. City of Burlington, 2012 VT 11, ¶ 2.
(citations and quotations omitted). The facts alleged by Petitioner in the amended complaint are
sufficient to survive a motion to dismiss. Respondent’s motion to dismiss Petitioner’s claim for
negligence is therefore denied.
Conclusion
For the reasons stated above, all claims are dismissed except for Petitioner’s claim of
negligence. The Commissioner is dismissed as a party.

Electronically signed on April 10, 2025 pursuant to V.R.E.F. 9(d)

__________________________
Alexander N. Burke
Superior Court Judge

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