young v. menard

STATE OF VERMONT

SUPERIOR COURT 241 FER 9 CIVIL DIVISION
Washington Unit red SU: A il: 33. Docket No. 382-6-16 Wnev
MARK YOUNG

Plaintiff bee ny

LISA MENARD, Commissioner,
Vermont Department of Corrections
Defendant

DECISION .
Plaintiff’s Motion for Summary Judgment

Plaintiff Mark Young, who is an inmate in the custody of the Commissioner of the
Department of Corrections currently being held in an out-of-state facility in Baldwin, Michigan,
was disciplined for assaulting another inmate, which is a “major” violation. He claims that his
conviction is flawed due to a due process violation because he had a right to a hearing assistant
and had requested one and was not provided one for his hearing. In opposition to summary
judgment, the State argues that the conviction should be affirmed because Mr. Young did not
appear at his administrative hearing and otherwise there was sufficient evidence of guilt.

The State expressly stipulated, for purposes of summary judgment, to the facts as
portrayed in Mr. Young’s filings. Those facts are as follows. Following whatever transpired
between Mr. Young and the other inmate, Mr. Young was put in segregation and charged with a
disciplinary violation. On the Notice of Hearing form given to him giving notice of his
administrative disciplinary hearing on the charge, there was a box to check to request a hearing
assistant. The record is clear that he checked that box and expressly asked for a named person as
a hearing assistant.

On the day of the hearing, guards came to take him to it. He was still in'segregation. He
objected that he had never had a chance to speak with a hearing assistant. He was not then given
the opportunity to do so. In those circumstances, he did not go to the hearing.

No hearing assistant was present at the hearing.' The hearing officer summarily noted
Mr. Young’s absence and found him guilty. Nothing in the recording of the hearing reflects any
consideration about why neither Mr. Young nor his hearing assistant was not there.

In opposition to summary judgment, the State argues that Mr. Young should have gone to
the hearing and objected on the record that he had not had any opportunity to meet with a hearing

1 The State asserts that the hearing assistant “refused to attend the hearing.” Defendant’s Opposition at 2 (filed Dec.
9, 2016). That allegation is without any support. Nothing in the record implies that any hearing assistant ever was
assigned to work with Mr. Young, much less that one “refused” to attend the hearing.
assistant, and asked for the opportunity to do so then or requested a continuance to be able to do
so later, There is no evidence that anyone ever advised Mr. Young that he should do this and
there is nothing to indicate that he should have known it. Moreover, it is not reasonable or fair to
shift to him the burden of actively having to pursue a request for a hearing officer when he had
already made a clear request, and such a practice is contrary to the administrative rules governing
disciplinary proceedings.

“Offenders who cannot adequately present their cases shail be entitled to the assistance of
a hearing Assistant.” Vt. Admin. Code 12-8-13:2(e) (emphasis added) (also cited as VT ADC 13
130 002 and DOC Rule 96-12(2)(e)). That rule is complemented by the DOC’s discipline
directive #410.01. A hearing assistant is “[a] person who assists an inmate in preparing and
presenting their case. It does not have to be a staff person, but cannot be an attorney.” Id.,
Definitions, “hearing assistant” (emphasis added). The function of the hearing assistant and
related procedure is further described as follows:

Hearing Assistant Role

i. An inmate has the right to a hearing assistant to help them prepare their
case; however, this cannot be an attorney.

ii. The Hearing Officer will ensure that the accused inmate and hearing
assistant have had sufficient time - at least three (3) hours if requested - to confer
and review the violation packet prior to the hearing.

iii, Both the hearing assistant and accused will be present in the hearing
room unless the inmate or the hearing assistant refuses to attend.

iv. If the conduct of the inmate or hearing assistant is repeatedly
disrespectful, unruly or presents a hazard to institutional security or safety of the
individuals, the hearing may continue without them.

v. A hearing assistant will attend the hearing on the inmate’s behalf if the
inmate does not attend for any reason.

vi. In the case of an SFI-designated inmate, and in the case of any inmate
where the Hearing Officer feels they do not have the capacity to fully understand
the process, a hearing assistant will be appointed by the Hearing Officer if one is
not selected by the inmate.

Id., Procedural Guidelines § (5)(d) (emphasis added).

Mr. Young had a right to a hearing assistant. He unambiguously requested one. The
documentation reflected that. The hearing officer was supposed to “ensure” that Mr. Young and
the hearing assistant had an opportunity to “prepare” Mr, Young’s defense “prior” to the hearing.
If Mr. Young declined to attend the hearing, his hearing assistant still was supposed to attend.

There is no evidence that any hearing assistant ever was appointed. Nothing in the record
suggests that Mr, Young attempted to manipulate the system or that any security concerns could
explain. why Mr, Young’s right to a hearing assistant was completely ignored. Nothing in the
rules required Mr. Young to press his rights on the record during his hearing to avoid an
unintentional waiver.
ORDER
For the foregoing reasons, Mr. Young’s summary judgment motion is granted. The
disciplinary conviction is vacated. The Department may, if it chooses, hold a new hearing that is
in compliance with Mr. Young’s rights.
Dated at Montpelier, Vermont this 23 day of February 2017.

Mary ies Teachout
Superiomudge