wool v. menard

“STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Washington Unit MI GEC 1S: A B IO Docket No. 241-4-17 Wnev

KIRK WOOL
Plaintiff

Y.

LISA MENARD
Defendant

DECISION
Defendant’s Motion to Dismiss, filed September 11, 2017
Plaintiffs Motion to Dismiss, filed November 13, 2017

Plaintiff, an inmate in the custody of the Defendant Commissioner of the Vermont
Department of Corrections, filed this suit to challenge the Vermont Department of Corrections’
use of an assessment device in his classification and/or programming. He claims that the device
was intentionally used to produce a fraudulent result to justify prolonging his incarceration or
preventing parole.

Defendant filed the above-referenced Motion to Dismiss in which she argued several
legal bases for dismissal, and memos were filed. Prior to any decision on Defendant’s Motion,
Plaintiff then filed the above-referenced Motion to Dismiss Without Prejudice.

Plaintiff asserts that he raised this claim in an earlier filed suit in Washington Superior
Court. That case evidently was removed to federal court where it eventually was dismissed. It is
unclear whether any state claims remained following dismissal, but proceedings did not then
resume in the state case.

Plaintiff then filed this new case, raising the same issue: fraudulent use of the assessment
device. Plaintiff now seeks to voluntarily dismiss this case without prejudice. He notes that he
has the same.claim also pending in yet another case that was filed in Chittenden Superior Court
in 2014 and remains pending.

Defendant argued many bases for dismissal in her Motion, but she has not argued that the
earlier filed Washington case or federal dismissal decision have any preclusive effect on this
case. She also has not sought dismissal on the basis that there is apparently duplicative litigation
that has been underway in Chittenden Superior Court at all relevant times.

She also has not objected to the request for dismissal without prejudice. Because
Defendant has not opposed Plaintiffs Motion, it is granted. The court takes no position on
whether this voluntary dismissal may or may not have any prejudicial effect on any other
litigation.
Dismissal of this case without prejudice renders Defendant’s Motion moot.

Accordingly,
1. Plaintiff's Motion to Dismiss Without Prejudice is granted, and
2. Defendant’s Motion to Dismiss is moot.

fh
Dated at Montpelier, Vermont this / of day of December 2017.

Mary Miles Teachout
Superior Judge