Barcomb v. Deml

Vermont Superior Court
Filed 03/ 24
Washmgton mt

VERMONT SUPERIOR K? CIVIL DIVISION
COURT
Washington Unit Case No. 23—CV—00880
65 State Street
Montpelier VT 05602
Efi
802—828—2091

wwwvermontjudiciaryorg

Nathan Barcomb V Nicholas Deml

Opinion and Order on Cross-Motions for Summary Judgment

Plaintiff challenges a case-staffing determination made by the Department of
Corrections (DOC) following the revocation of his parole. He maintains that the
DOC relied upon a parole Violation on which he was not found guilty and, indeed,
for which no probable cause was found. He has moved for summary judgment on
that basis. The DOC has cross-moved for summary judgment maintaining that
there was sufficient information at the case-staffing review to support its ruling
even leaving aside such evidence. The Court makes the following determinations.

I. Summary Judgment Standard
Summary judgment is appropriate if the evidence in the record, referred to in
the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party
fails to make a showing sufficient to establish an essential element of the case on
which the party will bear the burden of proof at trial). The Court derives the
undisputed facts from the parties’ statements of fact and the supporting documents.
Boulton v. CLD Consulting Engineers, Inc., 2008 VT 72, 11 29, 175 Vt. 413, 427. A
party opposing summary judgment may not simply rely on allegations in the
pleadings to establish a genuine issue of material fact. Instead, it must come
forward with deposition excerpts, affidavits, or other evidence to establish such a
dispute. Murray v. White, 155 Vt. 621, 628 (1991). Speculation is insufficient.
Palmer v. Furlan, 2019 VT 42, 1] 10, 210 Vt. 375, 380. Where, as here, there are
cross-motions for summary judgment, the parties opposing summary judgment “are
entitled to the benefit of all reasonable doubts and inferences.” Montgomery v.
Devoid, 2006 VT 127, 11 9, 181 Vt. 154, 156.
II. Analysis
There is no question that the case-staffing report contains various domestic
assault allegations for which the Parole Board failed to find probable cause. The

1
report prominently mentions Plaintiff’s relationships with women as a significant
concern. The report also notes, however, that allegations of physical violence were
not proven.
No doubt, case-staffing decisions are matters for which the DOC has
significant discretion. Wheelock v. Deml, No. 22-CV-01554, 2023 WL 3605863, at *4
(Vt. Super. Apr. 06, 2023). In certain circumstances, case staffing can consider
matters of historical concern not directly related to the violations at issue. Id. at *4-
5. But principles of fairness and due process dictate that it cannot directly rely
upon patently false information. Id. Further, in the context of case-staffing
following a particular violation, the Court also agrees with other decisions that case
staffing cannot sanction Plaintiff directly for conduct relating to violations on which
the person was found not guilty. Persad v. Vermont Dep’t of Corr., 21-CV-02749,
(Vt. Super. Nov. 29, 2022); Kadawe v. Baker, 342-10-20 Wncv (Vt. Super. Oct. 19,
2021).
In this instance, although the report acknowledges physical violence was not
proven, the record raises significant concern that the case-staffing process relied, at
least in part, on the allegations of domestic violence for which no probable cause
was found. While Plaintiff has failed to allege specifically reliance in his statement
of undisputed facts, cross-movant DOC has not denied such reliance. DOC’s
argument is that the staffing is defensible even if such reliance existed. The Court
cannot agree. While other evidence may support the ultimate determination, the
Court cannot determine on this record whether the result would have been the
same if the tainted evidence were removed. Since the DOC has discretion in this
area, it makes the most sense for the Court to remand for another case staffing,
which may not rely upon the violation for which no probable cause was found.
WHEREFORE, the Plaintiff’s motion for summary judgment is granted, and
the Defendant’s cross-motion is denied. The matter is remanded to the DOC for
proceedings consistent with this opinion.
Electronically signed on Monday, March 11, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

2