Lockerby v. Doc

Vermont Superior Court
wiislfig‘it/Elfift‘

VERMONT SUPERIOR COURT £3: CIVIL DIVISION
Washington Unit f1 Case NO. 23-SC-01948
65 State Street
Montpelier VT 05602
802—828—2091

wwwvermontjudiciaryorg

Heath Lockerby V. Vermont DOC et a1

Opinion and Order on CoreCiVic’s Motion to Dismiss and
Plaintiffs Motion for Summarv Judgment

Plaintiff Heath Lockerby is an inmate in the custody of Defendant the Vermont

Department of Corrections Who is currently housed in an out-of-state prison facility

operated by Defendant CoreCiVic, Inc. In this small claims action, Mr. Lockerby alleges

that CoreCiVic personnel seized his television as contraband under suspicion that he had

secreted drugs inside it, the disciplinary action related to the drug possession charge was

dismissed, and CoreCiVic nevertheless has failed to return his television. CoreCivic has

filed a motion to dismiss the claim against it for lack of personal jurisdiction. See Vt. R.

Sm. Cl. P. 4(e) (permitting such motions in small claims). Plaintiff has filed a motion for

summary judgment.

Personal jurisdiction may be either specific or general. The difference has been

described as follows:

Specific jurisdiction exists when “a State exercises personal
jurisdiction over a defendant in a suit arising out of or related to the
defendant’s contacts with the forum”; a court’s general jurisdiction, on the
other hand, is based on the defendant's general business contacts with the
forum state and permits a court to exercise its power in a case where the
subject matter of the suit is unrelated to those contacts. Because general
jurisdiction is not related to the events giving rise to the suit, courts impose
a more stringent minimum contacts test, requiring the plaintiff to
demonstrate the defendant’s “continuous and systematic general business
contacts.”

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23—SC—01948 Heath Lockerby v. Vermont DOC et a1
Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567–68 (2d Cir. 1996)

(citations omitted); see also Canaday v. Anthem Companies, Inc., 9 F.4th 392, 400 (6th

Cir. 2021) (the contacts relevant to specific personal jurisdiction are claim-specific).

There is no palpable assertion of general personal jurisdiction in Vermont over

CoreCivic.

With regard to specific personal jurisdiction, the Vermont Supreme Court has

explained as follows:

Vermont’s long-arm statute, 12 V.S.A. § 855, confers jurisdiction to
the full extent allowed by the United States Constitution. Our inquiry
focuses on whether the defendant has sufficient contacts with Vermont that
maintaining the lawsuit here does not “offend traditional notions of fair play
and substantial justice.” The central question in determining whether
specific jurisdiction may be exercised is whether the defendant has
purposefully availed itself of the privilege of acting in the forum state. This
requirement “gives a degree of predictability to the legal system that allows
potential defendants to structure their primary conduct with some
minimum assurance as to where that conduct will and will not render them
liable to suit.” Put another way, the purposeful-availment requirement
“ensures that a defendant will not be haled into a jurisdiction solely as a
result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral
activity of another party or a third person.’”

N. Sec. Ins. Co. v. Mitec Elecs., Ltd., 2008 VT 96, ¶ 14, 184 Vt. 303, 310.

Procedurally, a plaintiff must establish the grounds for jurisdiction. The Court

has explained that:

If . . . “a court chooses to rule on a [pretrial] motion to dismiss for lack
of personal jurisdiction on the basis of affidavits alone, the party opposing
[the] motion need make only a prima facie showing of jurisdiction, or, in
other words, demonstrate facts which would support a finding of
jurisdiction.” The nonmoving party’s prima facie showing must go beyond
the pleadings and rely upon specific facts set forth in the record. “In
assessing the submitted materials, the [trial] court eschews fact finding and
simply accepts properly supported proffers of evidence as true and rules on
the jurisdictional question as a matter of law.”

State v. Atl. Richfield Co., 2016 VT 22, ¶ 9, 201 Vt. 342, 348–49 (citations omitted).
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23-SC-01948 Heath Lockerby v. Vermont DOC et al
CoreCivic’s argument is straightforward. All alleged conduct related to Mr.

Lockerby’s claim occurred in Mississippi at the prison facility it operates in that state.

No such conduct was directed at Mr. Lockerby in Vermont. As far as the pleadings go,

Mr. Lockerby attached documentation of the disciplinary process and his grievance.

They clearly show that CoreCivic personnel undertook the disciplinary process that was

dismissed, Mr. Lockerby then used the CoreCivic grievance policy to try to get his

television back, and CoreCivic officials ultimately denied that relief. Everything

occurred in Mississippi.

In response to CoreCivic’s motion, Mr. Lockerby has come forward with nothing

that goes “beyond the pleadings” to demonstrate jurisdiction other than a citation to 28

V.S.A. § 807, which is non-responsive. That provision merely provides that prisoners

retain the right to vote only “at the person’s last voluntary residence during the term of

the person’s commitment.” Id. § 807(a). Mr. Lockerby’s right to vote wherever he lived

in Vermont prior to incarceration sheds no light on whether CoreCivic has the sort of

claim-specific contacts with Vermont that might demonstrate personal jurisdiction over it

in Vermont in relation to this small claims case.1 Similarly, the fact that certain statutes

give Vermont certain specific rights that are applicable even if they are housed out of

state, see Nichols v. Hofmann, 188 Vt. 1 (2010), does not confer jurisdiction over this

Small Claims action.

Mr. Lockerby’s claim has nothing to do with Vermont other than the fact that it is

the State on whose authority he is incarcerated. Mr. Lockerby neither makes nor

1 Nor is it clear why he did not bring his claim in Mississippi, where personal jurisdiction

over CoreCivic would seem to be obvious.
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23-SC-01948 Heath Lockerby v. Vermont DOC et al
attempts to support any argument that jurisdiction might arise out of Vermont’s contract

with CoreCivic alone, and such an argument is not considered. In analogous

circumstances, although the fact patterns vary, several courts have found a lack of

personal jurisdiction in the context of prisoners residing at out-of-state facilities. See,

e.g., Burke v. Baker, No. 5:21-CV-265-GWC-KJD, 2023 WL 1801927, at *8 (D. Vt. Feb. 7,

2023) (“Because Plaintiff fails to allege that any suit-related conduct of Defendant

Johnson was substantially connected to Vermont, she is not subject to specific

jurisdiction in Vermont.”), report and recommendation adopted, No. 5:21-CV-265, 2023

WL 2423232 (D. Vt. Mar. 9, 2023); Butler v. Baker, No. 619-11-19 WNCV, 2022 WL

1242633, at *3 (Vt. Super. Jan. 24, 2022) (suggesting, in dicta, that court has no

jurisdiction over CoreCivic); Bergrin v. United States, No. 19-CV-9681 (VSB), 2022 WL

912280, at *11 (S.D.N.Y. Mar. 28, 2022); Simon v. Mullgrav, No. CV 2017-0007, 2021 WL

4024360, at *5 (D.V.I. Sept. 1, 2021); Harris v. Dzurenda, No. 18CV00294MMDCBC,

2019 WL 4262507, at *2 (D. Nev. Sept. 9, 2019), aff’d, 831 F. App’x 266, 267 (9th Cir.

2020) (“The district court properly dismissed nonresident defendants Thomas and

Hininger because Harris failed to allege facts sufficient to establish that the district court

had personal jurisdiction over them.”).

On this record, Mr. Lockerby has not carried his affirmative burden of establishing

a prima facie case for general or specific personal jurisdiction over CoreCivic.

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23-SC-01948 Heath Lockerby v. Vermont DOC et al
Conclusion

For the foregoing reasons, CoreCivic’s motion to dismiss is granted. It is granted

without prejudice to a filing in the jurisdiction where the events occurred and where all

pertinent witnesses may be called into court. The motion for summary judgment is

denied as moot.

Electronically signed on Friday, January 26, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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23-SC-01948 Heath Lockerby v. Vermont DOC et al