Brock v. Deml

7ermont Superior Court
Filed 12/05/24
Orleans UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Orleans Unit Case No. 24-CV-02775
247 Main Street
Newport VT 05855
802-334-3305
www.vermontjudiciary.org

Nicholas Brock v. Nicholas Deml, et al

ENTRY REGARDING MOTIONS
Title: Motion to Dismiss; Motion to Dismiss (Motion: 2; 3)
Filer: Pamela Eaton; Brendan T. Sage
Filed Date: August 08, 2024; October 03, 2024

In this case, plaintiff Nicholas Brock, an inmate in the custody of the Department of
Corrections, is suing the Department and several of its employees, alleging that he was
denied required medication, physically abused and harassed, retaliated against, and
subjected to cruel and unusual punishment in violation of his constitutional rights.
Plaintiffs pro se complaint, dated July 5, 2024, alleges that he was subjected to a
variety of mistreatment by the defendants over the past several years beginning from the
time he was lodged at Northern State Correctional Facility on a parole violation and until
the filing of this complaint, including while plaintiff was held at Northeast Regional
Correctional Facility.
Defendants have filed two separate motions to dismiss one with respect to
plaintiff's medical claims submitted by the law firm contracted to defend such claims and a
second motion with respect to plaintiff's other claims submitted by the Attorney General's
Office. Both motions seek dismissal for lack of subject matter jurisdiction on the basis that
plaintiff failed to exhaust his administrative remedies before filing suit. Plaintiff opposes
dismissal but did not separately respond to the second motion.
On a motion to dismiss for lack of jurisdiction, the court accepts as true and
construes all uncontroverted factual allegations in the complaint in the light most favorable
to the nonmoving party and may consider evidence outside the pleadings. Mullinnex v.
J
Menard, 2020 VT 33, 8, 212 Vt. 432.
"A trial court lacks subject matter jurisdiction to hear a case if a party fails to
exhaust administrative remedies." Id. (quotation omitted). A prisoner bringing claims
related to the conditions of his confinement accordingly must exhaust available
administrative remedies before turning to the courts for relief. See id., { 14; Jordan v. State
Agency of Transp., 166 Vt. 509, 511 (1997). "Under the Prison Litigation Reform Act
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24-CV-02775 Nicholas Brock v. Nicholas Deml, et al
(PLRA), 42 U.S.C. § 1997e(a), that same requirement also applies when a prisoner asserts a
cause of action arising under the federal constitution. Jackson v. Menard, No. 179-3-17
Wnev, 2017 WL 11883466, at *1 (Vt. Super. Oct. 31, 2017) (citations omitted).
In order to exhaust administrative remedies in this context, plaintiff was required to
file a grievance and then appeal any unsatisfactory response to the Commissioner. See DOC
Policy 320, at p. 14-15. Further, any claim covered by Rule 75 of the Rules of Civil
Procedure was required to be appealed to this court within thirty days of the
Commissioner's final decision. See V.R.C.P. 75(c).
Defendants have provided the court with plaintiffs entire grievance record from the
date of plaintiff's reincarceration at Northern State in November 2022 until the filing of his
complaint. Plaintiff initiated many grievances during this period, but only ten of those were
exhausted by having been appealed to the Commissioner. And of those ten, all but one
resulted in a final decision from the Commissioner more than thirty days before plaintiff
signed his complaint and are therefore untimely to the extent that they are covered by Rule
75. The other grievance was not exhausted until after plaintiff filed his complaint and is
therefore not exhausted. See Mullinnex, 2020 VT 33, 16-18.!
The court therefore only has jurisdiction to the extent plaintiff's complaint
was both (i) exhausted, i.e., raised in one of his nine grievances that were decided by the
Commissioner; and (ii) falls outside of Rule 75 and is otherwise timely. See Middlebrooks v.
Bradt, 794 F. App'x 72, 74 (2d Cir. 2019) (statute of limitations for 1983 claims is governed
by state law and tolled while prisoner is actively exhausting his administrative remedies);
Shields v. Gerhart, 155 Vt. 141, 145 (1990) (recognizing three-year limitation period for §
1983 actions). Any claim must also be properly preserved. See Pratt v. Pallito, 2017 VT 22,
1 16, 204 Vt. 313 ("[T]o properly preserve an issue, a party must present the issue to the
administrative agency with specificity and clarity in manner which gives the agency a fair
Cca

opportunity to rule on it... . [Courts will] not address issues that were not properly
preserved before the relevant administrative agency." (quotations omitted)).

Construing his grievances and pleading favorably, as the court must, plaintiff has
exhausted and preserved claims that his medical and legal records were confiscated and
that he was transferred from Northern State to Northeast in retaliation for having engaged
in protected activity in violation of his constitutional rights. See Grievance # 161587. He
has also preserved and exhausted a claim that he was subjected to cruel and unusual
punishment while in the Department's custody in violation of his constitutional rights. See
1
This final grievance demonstrates the purpose of the exhaustion requirement, which "is designed to
ensure that a grievance is fully explored and litigated before the administrative body possessing the
pertinent experience and expertise in the subject area" in order "to preserve the authority of the
administrative body, and to promote judicial efficiency." See Mullinnex, 2020 VT 33, q 17. The issue
raised by petitioner in this grievance his access to video calls with his son was fully resolved at
the administrative level after the complaint was filed in this court.

Entry Regarding Motion Page 2 of 3
24-CV-02775 Nicholas Brock v. Nicholas Dem, et al
Grievances ## 163215, 163216. These claims appear to be raised under Section 1983—not
Rule 75—and therefore appear to be timely.
The court concludes only that it has subject matter to consider the claims that were
fairly preserved and exhausted through the grievances cited above, as that is the only basis
on which defendants have moved for dismissal. The court expresses no opinion on the
merits of those claims. All other claims are dismissed for lack of subject matter jurisdiction.
Order
Defendants’ motion to dismiss plaintiff’s medical claims (Motion 2) is GRANTED.
Defendants’ motion to dismiss all other claims (Motion 3) is GRANTED IN PART
AND DENIED IN PART as set forth above.
The clerk shall set this case for a status conference on plaintiff’s remaining claims.

Electronically signed on: 12/5/2024 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

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24-CV-02775 Nicholas Brock v. Nicholas Deml, et al