dezotell v. deml

Vermont Superior Court
Filed 03/08/24
Orleans Unit

VERMONT SUPERIOR COURT 1
fl4 CIVIL DIVISION
Orleans Unit Case N0. 23-CV—05335
247 Main Street
NewportVT 05855
802-334—3305 fifi
wwwvermontjudiciaryorg

Gordon Dezotell, Sr. v. Nick Deml

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 2)
Filer: Brendan T. Sage
Filed Date: January 23, 2024

The motion is DENIED.

The Department has filed a motion to dismiss the present action, which is a Rule 74 appeal.
Of Petitioner’s furlough revocation.

The gist of the Department’s motion is that the November case staffing from which
Petitioner has appealed, was not the result of a furlough revocation but occurred after Petitioner had

already been re-incarcerated. As such, the Department contends, it falls outside of the narrow

authority of 28 V.S.A. § 724, which only give the Court authority to review a case staffing that result
from a furlough revocation decision. The appellate rights under Section 724 do not extend to

furlough revocations that arise from decisions of the parole board or from a case staffing that occurs
for any reason other than a determination that an inmate on furlough committed a technical
Violation of his terms and conditions. Carter p. Vermont D¢artmeflt ofCorrem'om, Dckt. No. 21-CV—
02090 (Dec. 10, 2021) (Mello,].).

In response to the Department’s motion, Petitioner contends that his appeal is timely and

actually incorporates an earlier case staffing following the interrupt of his furlough. Petitioner notes
that the confiasion arises from the fact that he lost his furlough-approved housing in September of

2023. There was a notice of suspension, and the loss of housing did constitute a violation of his

furlough terms. At the first case staffing in October, the Department charged Petitioner with
developing a plan for transitional housing and a plan to avoid the risk of contact with minors. The
October case staffing did not indicate how long the furlough interruption would be. The next

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23—CV—05335 Gordon Dezotell, Sr. v. Nick Deml
month, Petitioner has a second case staffing, the Department determined that Petitioner would have
to stay in the facility for an extended period of time to complete programming to address his sexual
risk to minors before he could become eligible for release. Once Petitioner released, the
interruption would be for an extended period of time, he filed present appeal.

Standard for a Motion to Dismiss

The Department moves to dismiss Plaintiff’s appeal on the basis that Petitioner’s claim is
outside the authority and jurisdiction created by 28 V.S.A. § 724; see also V.R.C.P. 12(b)(6). To
determine whether a complaint survives a motion to dismiss, the court assumes the factual
allegations in the complaint are true. Colby v. Umbrella Inc., 2008 VT 20, ¶ 5. The court will only
grant the motion if there are no facts or circumstances that would grant plaintiff relief. Id. This is
because the purpose of a motion to dismiss for failure to state a claim is “to test the law of the claim,
not the facts which support it.” Brigham v. State of Vermont, 2005 VT 105, ¶ 11 (quoting Powers v.
Office of Child Support, 173 Vt. 390, 395 (2002)). Courts rarely grant motions to dismiss for failure to
state a claim. Colby, 2008 VT 20, at ¶ 5; see also Kaplan v. Morgan Stanley & Co., Inc., 2009 VT 78, ¶ 7.

Courts generally disfavor these motions. Bock v. Gold, 2008 VT 81, ¶ 4 (“Motions to dismiss
for failure to state a claim are disfavored and should be rarely granted.”). For these reasons, a party
seeking dismissal has a high burden to show that they are entitled to such an initial ruling. Bock,
2008 VT 81 at ¶ 4.

Legal Analysis

The Court’s authority to hear a furlough appeal is defined by 28 V.S.A. § 724(c), which states
that”[a]n offender whose community supervision furlough status is revoked or interrupted for 90
days or longer for a technical violation shall have the right to appeal the Department’s determination
. . . .” 28 V.S.A. § 724(c). While this language contains several provisions, the critical one in the
present case is the 90-day window. A revocation must be for at least 90 days before an inmate can
invoke the appeal process in Section 724. If the furlough is for less than 90 days, then the
interruption falls outside the scope of a Section 724 appeal.

In this case, the facts before the Court, for the purposes of the present motion, indicate that
the Department never decided in either September or October of 2023 how long Petitioner’s
furlough interrupt would last. Instead, the Department’s decisions appear to take a wait and see

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23-CV-05335 Gordon Dezotell, Sr. v. Nick Deml
approach. Even the November 2023 case staffing does not explicitly set a specific term or time for
1the interruption.

Instead of setting a specific deadline, the Department’s decisions focus on programming and
compliance issues. These decisions may be valid and ultimately defensible, but for the purpose of
the present analysis, they do very little to express the length of the furlough in a way that would
either trigger the 90-day requirement of Section 724 or put Petitioner on notice that his furlough
interruption would extend beyond 90 days. There may be additional facts that would suggest that
Petitioner had constructive notice that his furlough interruption was going to last for an extended
period of time, but neither party has suggested this, and the Court lacks any factual basis to make
such an inference.

Petitioner’s situation created a paradox. If he had appealed his furlough interruption in
September or October, he could not have pointed to any part of the record showing that he had or
was going to have an interruption of more than 90 days. But by waiting, Petitioner has opened
himself up to the Department’s objections.The language of the October decision, in fact, undercuts
such a conclusion as it appears to indicate that Petitioner was being prepared for a return to the
community. Petitioner also could not have pointed to any actual time-periods served as he was
under the 90-day threshold.

Given these potential illogical outcomes that would nullify the Section 724 appeal process
and review, the Court will interpret Petitioner’s situation as follows, for the purpose of the motion
to dismiss. The Department’s October case staffing was not a final case staffing, but it was a
preliminary hearing in which the Department did not reach the final issue of length of interruption.
Instead, the Department chose to continue the process and re-convened in November. It was only
at that case staffing that it became apparent that the Department would be interrupting Petitioner’s
furlough for more than 90-days. From this determination, Petitioner took the present, timely
appeal.

Based on this, the Court cannot conclude that the present appeal is either inappropriate or
outside of the jurisdiction of Section 724. As such, the Court denies the Department’s motion and
will allow the present matter to proceed to trial.

1 Petitioner’s appeal, particularly if it seeks to relate back to the original October case staffing creates a timeliness

issue as Rule 74 must generally be filed within 30 days of a case staffing decision V.R.C.P. 74(b)..

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23-CV-05335 Gordon Dezotell, Sr. v. Nick Deml
ORDER

Based on this analysis, the Department’s Motion to Dismiss is Denied at this time. The
Court will set this matter for a status conference that if the parties are prepared will be converted
into a pre-trial conference to set this matter for a bench trial.

Electronically signed on 3/8/2024 2:37 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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23-CV-05335 Gordon Dezotell, Sr. v. Nick Deml