marcell v. deml

Vermont Superior Court
Filed 03/04/24
Orleans Unit

VERMONT SUPERIOR COURT 1
fl4 CIVIL DIVISION
Orleans Unit Case N0. 23-CV-03676
247 Main Street
NewportVT 05855
802-334-3305 fifi
WWW.Vermontjudiciary.org

Joshua Marcell v Nicholas Deml et a1

ENTRY REGARDING MOTION
Title: Motion for Summary Judgment; Cross Motion for Summary Judgment ; (Motion: 2;
3)
Filer: Kassie R. Tibbott; Annemarie Manhardt
Filed Date: December 13, 2023;]anuary 15, 2024

The motion is GRANTED IN PART and DENIED IN PART.

This is a Rule 75 appeal seeking to set aside a disciplinary determination based on two

procedural defects, namely the lack of a Witness that Petitioner claims he intended to call to testify
and the superintendent’s failure to specifically address this issue in his decision to affirm the hearing

officer.

Rule 75 appeals are not de novo appeals or direct appeals, but rather they are limited judicial
reviews of a lower tribunal or an administrative decision that falls into one of three types. Rbezmme I).

Pal/#0, 2011 VT 72, 1H] 5—8. In this case, the review falls under the certiorari—type of review, which
looks to the applicable law in the substantive area governing the case to define the nature of the
review and right. Mason p. Tbeflom’ Scbool Bd, 142 Vt. 495, 497 (1983). It is not an appeal to correct
mere errors made in the exercise of lawful jurisdiction. Rhodes z). Town of Woodstock, 132 Vt. 323, 325

(1974). It is limited to a review that ensures the inferior tribunal stays within the limits of its

jurisdiction and that such jurisdiction is exercised with regularity. Id. These standards shape the
Court’s review of each of the issues raised in the parties’ competing summary judgment motions.

Petitioner’s motion raises two arguments under Rule 75. The first is a due process challenge.
The allegation is that Petitioner wanted to have a witness at his disciplinary hearing, the Department
knew of this wish, and the Department failed to provide the witness. This resulted in an alleged
constitutional defect in the proceeding by failing to allow Petitioner to put on the necessary evidence
and defense. The second challenge is based on administrative rules governing the grievance of
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disciplinary decisions, specifically Section 410.01 that requires the superintendent to specifically
address all appeal issues and respond within 30 days.

In contrast, Respondent’s motion seeks affirmance of its underlying decision based on the
administrative record and existence of some evidence in support of the determination that Petitioner
violated the rules governing administration and consumption of medication designed to prevent
diversion of such mediation to other inmates. .

The nature of certiorari review is that each of these issues represents a separate channel that
the Court must examine, and which does not preclude the other as each has its own applicable area
of substantive law that governs the rights and responsibilities of the parties.

Undisputed Facts

Based on the parties’ filings, the following facts are undisputed. The Department of
Corrections convicted Petitioner Marcell of misuse of authorized medication in violation of a prison
rule, Major B-30. This rule prohibits “misuse of authorized medication, including, but not limited to,
inmates transferring or selling their medication to another inmate.” Department of Corrections
Directive 410.01 at 19. DOC’s initial evidence consisted of an incident report by a corrections
officer who witnessed the incident and accused Petitioner of improperly having some of his
sublingual Medication Assisted Treatment (MAT) medication on top of his tongue. On the Notice
of Hearing Form dated July 25, 2023, Petitioner indicated his desire to call Nurse Lisa (the MAT
distribution nurse) and the reporting officer as witnesses at his disciplinary hearing.

The disciplinary hearing was held on August 2, 2023. At the start of the disciplinary hearing,
the hearing officer asked Petitioner Marcell if he still wished to have the reporting officer present.
Petitioner stated that he did not and waived one of the two requested witnesses. The hearing officer
acknowledged that Petitioner still requested Nurse Lisa to testify. Petitioner explained that Nurse
Lisa would testify that the medication was in Petitioner’s mouth. The hearing officer told Petitioner
that he was not sure if Nurse Lisa was on-site, but that he would make the attempt to summon her if
the hearing reached that point.

After admission of the disciplinary report and entry of Petitioner’s plea of not guilty, the
hearing officer allowed Petitioner to testify. Petitioner stated that he had placed the medication in
his mouth as directed. The hearing officer then asked Petitioner a few questions and then asked

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Petitioner if there was anything else he would like to add. Petitioner l said, “Nope.” The record
shows that Petitioner had been enrolled in the MAT program for approximately two-years; that the
protocol for receiving MAT medication is under the tongue where it is rapidly absorbed and avoid
the risk that it can be transferred to another inmate. When the officer inspected the Petitioner, he
found, and Petitioner admitted to having the majority of his MAT medication, on the top of his
tongue where it remained unabsorbed. Rather than put it below his tongue, Petitioner spit out the
medication upon discovery.

The hearing officer went into deliberations and found Petitioner guilty of misusing his
medication. Petitioner appealed his disciplinary conviction to the superintendent on August 8, 2023.
Petitioner raised two issues: (1) that he had taken his MAT medication correctly; and (2) that the
hearing officer did not call his requested witnesses, Reporting Officer Houle and Nurse Lisa. The
superintendent denied Petitioner’s appeal on August 11, 2023, writing, “(1) You admitted in your
DR hearing your [sic] aware the medication is to be under your tongue & it was not.” The
superintendent did not explicitly respond to Petitioner’s appeal issue regarding the Department’s
failure to call his requested witnesses.

Legal Analysis I: Some Evidence

The Department’s argument for summary judgment relies upon the “some evidence in the
record” standard. Herring v. Gorczyk, 173 Vt. 240, 243 (2001) (citing Superintendent v. Hill, 472 U.S.
445, 455 (1985)). The Department notes that the record shows that Petitioner had a history of
receiving MAT medication and was aware of the protocol for receiving the mediation below the
tongue Petitioner was found to have put the medication above his tongue where it remained
unabsorbed. This evidence is sufficient for the Department to draw the finding that Petitioner
misallocated the medication and was attempting to divert it. Whether or not the officer’s evidence
was credible or not or whether the finding reached by the Department that such behaviors are
consistent with the diversion of MAT medication is outside the scope of the Court’s review. Herring
, 173 Vt. at 243. By statute, the MAT programs is under the purview of the Department of
Corrections 28 V.S.A. § 801b. The Department also has broad authority to make rules and
regulations governing the administration of such medication and to impose discipline on inmates
who violate such rules. 28 V.S.A. §§ 101, 601, 801 and 851. The Court is obligated to exercise
deference to the Department and its expertise in administering this MAT program and detecting
diversion and efforts to misappropriate medication that is consistent with its expertise. Plum Creek
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Main Timberlands, LLC v. Vermont Dept of Forest, Parks & Recreation, 2016 VT 103, ¶ 31. Under this
standard, the record is sufficient to affirm the Department’s imposition of discipline on Petitioner.

Legal Issue II: Superintendent’s Failure to Specifically Address Petitioner’s Arguments

The next issue is Petitioner’s second argument. Notwithstanding the evidentiary record,
Petitioner contends that the superintendent’s failure to address Petitioner’s contention that he was
not allowed to call Nurse Lisa constituted a violation of Section 410.01 of the Department’s own
directives. The section that Petitioner specifically relies upon is found on page 14 of the Directive
and states:

The Superintendent may, upon their review of the appeal, deny the requested relief,
or direct any other appropriate action; e.g., dismiss the appeal, order a new hearing,
order a modification of findings reducing sanctions, etc. The Superintendent will
specifically address all appeal issues raised by the inmate in the appeal. The
Superintendent will respond to the appeal within thirty (30) calendar days from the
date the appeal was delivered by the inmate to a staff member at the facility. Failure
to respond to the appeal within thirty (30) calendar days will result in the dismissal of
the disciplinary action, and staff will expunge the DR packet from the inmate’s file
and the database.

Department of Corrections Dir. 410.01(9)(c), at 14.

Petitioner argues that a failure to address his witness and due process issue constituted an
incomplete response and violates Directive 410.01(9)(c)’s 30-day requirement. The Court does not
understand the plain language of this directive to support Petitioner’s interpretation. The Directive
ties the nullification and dismissal to a delay by the Superintendent in filing any response. As the
Vermont Supreme Court has noted, the idea if to avoid untimely delays and prejudice that accrues
through protracted deliberation. Loveland v. Gorczyk, 173 Vt. 501, 501–02 (2001) (mem.). As
Loveland notes, the contents of the decision are not relevant to whether the nullification provisions
apply, only whether the superintendent has made the decision. Id. In this respect, the provisions of
this section are similar an applied in a manner that is akin to the “deemed approved” language in
zoning statutes. Id. at 504 (Skoglund, J. dissenting). The Court has long held that these type of
provisions are not short-cuts to avoid the merits of a decision but a remedy to avoid “indecision and
protracted deliberations . . . .” In re McEwing Services, LLC, 2004 VT 53, ¶ 21.

In the present case, there is no evidence of delay, indecision, or protracted deliberation.
While the superintendent did not expressly address the issue that Petitioner has raised, nothing in
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the decision would cause Petitioner to understand or be under the ambiguity that his argument had
found purchase with the superintendent or was still under consideration. Moreover, the
requirement to address all arguments is not tied to a specific remedy. Given that Petitioner has
appealed and continued his argument, the Court finds that this error is harmless and has not
impinged upon Petitioner’s ability or right to appeal. For these reasons, the Court finds no legal
basis to set aside Petitioner’s discipline based on the superintendent’s failure to expressly address
Petitioner’s argument concerning witnesses.

Legal Analysis III: Lack of Due Process

Petitioner’s primary argument on appeal concerns the failure to call Nurse Lisa during his
disciplinary hearing.1 While the Department notes that Petitioner had two opportunities to either
delay the hearing (when informed that Nurse Lisa was likely unavailable) or to call her (at the end of
his testimony when the hearing officer asked Petitioner if he had anything further), these “missed
opportunities” depend, in part, on making factual findings. Instead, the Court’s analysis in King v,
Gorczyk is instructive. 2003 VT 34, at ¶ 10. A party seeking to assert a due process claim from the
failure to allow a witness or piece of evidence at a hearing must show prejudice resulting from the
omission of the witness or evidence. In King, the Vermont Supreme Court found no prejudice and
by extension no violation of an inmate’s due process based on the Department’s omission of
specific laboratory test because even if the results had been admitted, they would have showed the
inmate to be under the influence of THC and in violation of the rules. Id.

In the present case, Petitioner asserts that if Nurse Lisa had testified, she would confirm that
Petitioner had the medication in his mouth. This may be true, but it is not a contested fact. The
Department concedes that Petitioner had the medication in his mouth. It is where Petitioner had
the medication in his mouth—specifically atop the tongue where it would not immediately be
absorbed and where it could more readily be diverted. Nothing in Petitioner’s proffer indicates that
Nurse Lisa could have testified differently about the location of the medication, and the record
indicates that the location was not disputed.

1 Petitioner does not dispute the record, which shows that he waived his right to call CO Houle as a witness.

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Based on these uncontested facts, the Court finds no prejudice attaching to the failure to call
Nurse Lisa as a witness, and nothing in Petitioner’s argument demonstrates prejudice from this
defect.

ORDER

The Department’s Motion for summary judgment is Granted. Petitioner’s Motion for
summary judgment is Denied. The Department’s discipline against Petitioner is Affirmed, and the
present appeal is dismissed.

Electronically signed on 3/4/2024 3:17 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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