Cione v. Deml

7ermont Superior Court
Filed 07/29/25
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 24-CV-04247
175 Main Street
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Burlington VT 05402 an

802-863-3467
.vermontjudiciary.org

Joel Cione,
Petitioner

DECISION ON MOTIONS

Nicholas Deml, Commissioner, Vermont
Department of Corrections,
Respondent

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

In this Rule 75 appeal, Petitioner inmate Joel Cione seeks review of his disciplinary rule
conviction for engaging in conduct that disrupted or interfered with the orderly running of the
correctional facility. In his amended complaint, Cione asserts that there was insufficient
evidence to support the Vermont Department of Corrections' ("DOC") findings and asks that the
conviction be expunged from his record. DOC contends that the evidence presented to the
hearing officer below shows that Cione caused a disruption to facility operations and interfered
with the security of the facility. Both parties have moved for summary judgment. Mr. Cione is
represented by Marco Kushner, Esq. and DOC is represented by AAG Robert C. Menzel, Jr. For
the reasons discussed below, Petitioner's motion is DENIED and DOC's motion is GRANTED.

Factual Background

The record establishes the following relevant, undisputed facts.! On July 29, 2024, Mr.
Cione was called to unit "AC" to receive a copy of a grievance. On his way to unit AC, Cione
intentionally walked through a fenced-off, designated construction area. C.O. Dale Martell
ordered Cione to leave the construction area. Cione stopped and did not follow Martell's

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The Court notes that DOC failed to support its summary judgment motion with a statement of
undisputed material facts as required by Rule 56(c)(1). Nor did it file a response to Petitioner's
statement. Accordingly, the Court considers the facts stated in Petitioner's pleading as
undisputed. See V.R.C.P. 56(e)(2); Boyd v. State, 2022 VT 12, 1 8 n.1, 216 Vt. 272 (holding that,
where plaintiff "did not directly respond to defendant's statement of facts . . for purposes of
summary judgment, defendant's facts are deemed undisputed'). However, the Court understands
that both parties rely exclusively on the materials attached to Petitioner's motion, which consist
of the Incident Report, Incident Disciplinary Report, Hearing Report, and Appeal Form.
Therefore, to the extent any facts are omitted from or recharacterized in Petitioner's recitation,
the Court looks to these documents as providing the relevant factual record in this case.
instructions. In his Incident Report, Martell stated that Cione remained in the area and argued
with him. Cione told Martell that he was going to the AC unit. Martell again directed Cione to
leave the area. Cione began to walk away and out of the construction area, but then stopped and
turned around to argue with Martell, who then called a “10-33.” Other officers responded to the
call and placed Cione in handcuffs and took him to the segregation unit.

On July 31, 2024, Mr. Cione was issued a Major B21 for: “Conduct, which disrupts or
interferes with inmate safety, security, or the orderly running of the facility (Only to be used if
another Major B violation is not applicable).” A hearing was held on August 2, 2024, where the
Department presented the following evidence: the notice of hearing, disciplinary report,
investigation report, and reports by CFSS Judd, C.O. Martel, and C.O. Lance. The Hearing
Officer found Cione guilty, and made the following findings of fact:

a. Construction is being completed in the upper yard. b. Fencing is in place to
keep incarcerated individuals out of the construction area. c. You deliberately
entered an area that was off limits. d. When directed to leave the area you stopped
and did not follow the officers’ instructions. e. By entering the area and refusing
to follow directions to leave you caused a disruption to facility operations and
interfered with the security of the facility.

Mr. Cione filed an appeal to the Superintendent, asserting that the DR should be
dismissed because he never intended to cause trouble, but rather made a mistake by going the
wrong way. The Superintendent denied the appeal stating: “you failed to follow CO Martell’s
Orders.”

This Rule 75 appeal followed.

Discussion

Summary judgment shall be granted when the moving party shows that there is no
genuine issue as to any material fact “and the movant is entitled to a judgment as a matter of
law.” V.R.C.P. 56(a). The party moving for summary judgment has the burden of demonstrating
“the absence of a genuine issue of material fact . . . by showing the nonexistence of evidence to
support the nonmoving party’s case.” Brown v. State, 2013 VT 112, ¶ 12, 195 Vt. 342 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986)). “The nonmoving party is afforded the
benefit of all reasonable doubts and inferences.” Id. (citing Campbell v. Stafford, 2011 VT 11,
¶ 10, 189 Vt. 567 (mem.)). “When, as here, there are cross-motions for summary judgment, both
parties are entitled to the benefit of all reasonable doubts and inferences when being considered
as the nonmoving party.” Vermont Coll. of Fine Arts v. City of Montpelier, 2017 VT 12, ¶ 7, 204
Vt. 215 (quotation omitted). However, as noted above, the parties essentially agree on the
factual record below.

“Rule 75 provides for review of ‘action or failure or refusal to act by an agency of the
state or a political subdivision thereof, including any department, board, commission, or officer,
that is not reviewable or appealable under Rule 74.’” Rose v. Touchette, 2021 VT 77, ¶ 13
(quoting V.R.C.P. 75(a)). “[W]hen reviewing administrative action by the DOC under V.R.C.P.

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75, [courts] will not interfere with the DOC’s determinations absent a showing that the DOC
clearly and arbitrarily abused its authority.” King v. Gorczyk, 2003 VT 34, ¶ 7, 175 Vt. 220
(citation omitted). Further, on “judicial review of the sufficiency of evidence at a prison
disciplinary hearing, the hearing officer’s final determination must be upheld if it is supported by
‘some evidence’ in the record.” Herring v. Gorczyk, 173 Vt. 240, 243, 789 A.2d 955, 958 (2001);
see also LaFaso v. Patrissi, 161 Vt. 46, 49, 633 A.2d 695, 697 (1993) (describing “the
appropriate standard for judicial review of the actions of prison authorities”). The “some
evidence” standard is met if the record contains “any evidence” supporting the disciplinary
board’s conclusion. Herring, 173 Vt. at 243 (citing Superintendent v. Hill, 472 U.S. 445, 455-56
(1985)). Cione asserts that there was insufficient evidence to support his conviction for a Major
B21 violation because at most, the evidence indicates that he should have been charged with a
lesser infraction, pursuant to DOC’s policy. DOC contends that the Major B21 conviction should
be upheld because there is “some evidence” in the record to support it. The Court agrees.

As an initial matter, Cione relies on DOC’s Facility Rules and Inmate Discipline #410.01,
which state an inmate should not be charged with a Major B21 violation if another Major B
violation is applicable. Cione argues his conduct did not warrant being charged with a B21
violation because a B18 violation would have addressed the conduct that formed the basis of the
alleged violation. However, Cione failed to present this argument below “with specificity and
clarity in a manner which gives the agency a fair opportunity to rule on it.” Pratt v. Pallito, 2017
VT 22, ¶ 16, 204 Vt. 313 (quotation omitted). Therefore, it was not preserved and the Court
lacks the authority to consider it. Id. ¶ 11 (“[A]lthough it had subject matter jurisdiction to hear
petitioner’s appeal, the trial court did not have the authority to hear the unpreserved issue that
was raised for the first time before the court.”). 2

Accordingly, the Court turns to the question of whether there was sufficient evidence to
convict Mr. Cione of a Major B21 violation. Cione concedes that he walked through a
designated construction area and that, before exiting the area, he stopped to tell C.O. Martell
where he was going as his explanation for why he was in that area. In addition, the Incident
Report created by Officer Martell describes the events in more detail. According to Officer
Martell:

On 7/29/24 . . . at approximately 1645 I was in the Yard and . . . out of the corner
of my eye I saw movement inside of a clearly fenced off section in the Yard that is
going to be under construction. I looked over and saw Cione walking through the

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In Pratt, 2017 VT 22, ¶ 19, petitioner inmate argued that the preservation rule should not be
applied to DOC proceedings because inmates are denied legal assistance when preparing their
cases. The Court acknowledged the inability to obtain legal counsel for the initial hearing
process but noted that the Facility Rules authorize inmates who need help appealing a
disciplinary conviction to the Superintendent to contact the Prisoners’ Rights Office. Id. The
Court noted that “[p]reservation in the appeal before the Superintendent is what is critical to
subsequent judicial review, and petitioner had the opportunity to involve legal counsel in that
appeal.” Id. (“The place to litigate the significant issues raised by petitioner’s Rule 75 petition is,
in the first instance, the DOC, and inmates are entitled to contact counsel in connection with their
intra-agency appeal.”).

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fenced off section. I gave Cione clear direction to get out of the fenced off
section. Cione stood there and argued with me and told me he was going to A/C,
I directed him again to get out of the construction zone and go back down and
around, he started to walk away then stopped and turned around and continued to
argue loudly about going to A/C, I then called a 10-33 Yard 1, that made Cione
walk to the edge of the fence and take it off the post and walk out of the fenced in
area and put the fence back on the post . . . .

DR Packet at 7. C.O. Martell’s Incident Report provides at least “some evidence” supporting the
disciplinary board’s conclusion that Cione committed a Major B21 violation. As the Hearing
Officer found, Cione deliberately entered a restricted, fenced-off area and refused to leave
despite orders by a C.O. Martell indicated that Cione argued loudly with him and challenged his
instructions while remaining in the restricted area. The Court is unable to conclude that DOC
“clearly and arbitrarily abused its authority” in finding that such conduct “disrupts or interferes
with inmate safety, security, or the orderly running of the facility.” See King, 2003 VT 34, ¶ 7.

Accordingly, the Court finds there are no genuine issues of material fact raised in this
case and DOC, rather than Petitioner, has demonstrated it is entitled to judgment as a matter of
law.

Order

For the foregoing reasons, DOC’s motion for summary judgment (Mot. #5) is
GRANTED and Petitioner’s motion (Mot. #2) is DENIED. DOC shall submit a proposed
judgment order within 7 days. See V.R.C.P. 58.

Electronically signed on July 29, 2025 at 10:51 AM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

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