Vermont Superior Court Filed 03/04/24 Orleans Unit

VERMONT SUPERIOR COURT Orleans Unit 247 Main Street NewportVT 05855 802-334-3305 WWW.Vermontjudiciary.orgCIVIL DIVISION

Case N0. 23-CV-03676

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ENTRY REGARDING MOTION

Title: Motion for Summary Judgment; Cross Motion for Summary Judgment (Motion: 2; 3) Filer: Kassie R. Tibbott; Annemarie Manhardt Filed Date: December 13, 2023;]anuary 15, 2024

The motion is GRANTED IN PART and DENIED IN PART.

This is Rule 75 appeal seekingto set aside disciplinary determination based on two

procedural defects, namely

the lack of Witness that Petitioner claims he intended to call to testify

and the superintendent’sfailure to specifically address this issue in his decision to affirm the hearing officer.

Rule 75 appeals are not de novo appeals or direct appeals, but rather theyare limited judicial

reviews of lower tribunal or an administrative decision that falls into one of three types. Rbezmme I).

Pal/#0, 2011 VT 72, 1H] 5—8. In this case, the review falls under the certiorari—type of review, which

looks to the applicable law in the substantive area governingthe case to define the nature of the

review and right. Mason p. Tbeflom’ Scbool Bd, 142 Vt. 495, 497 (1983). It is not an appeal to correct mere errors made in the exercise oflawful

jurisdiction. Rhodes z). Town of Woodstock, 132 Vt. 323, 325

(1974). It is limited to review that ensures the inferior tribunal stays within the limits ofits

jurisdiction and that such jurisdiction is exercised with regularity. Id. These standards shape

the

Court’s review of each of the issues raised in the parties’ competing summary judgment motions.

Petitioner’s motion raises two arguments under Rule 75. The first is due process challenge. The allegation is that Petitioner wanted to have witness at his disciplinary hearing, the Department

knew of this wish, and the Department

failed to providethe witness. This resulted in an alleged

constitutional defect in the proceeding by failingto allow Petitioner to put on the necessary evidence

and defense. The second challengeis based on administrative rules governingthe grievance of

Entry Regarding Motion Page of 23—CV—03676 Joshua Marcell Nicholas Deml et a1

Joshua Marcell Nicholas Deml et a1
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disciplinary decisions, specifically Section 410.01 that requires the superintendent to specifically 

address all appeal issues and respond within 30 days. 

In contrast, Respondent’s motion seeks affirmance of its underlying decision based on the 

administrative record and existence of some evidence in support of the determination that Petitioner 

violated the rules governing administration and consumption of medication designed to prevent 

diversion of such mediation to other inmates. . 

The nature of certiorari review is that each of these issues represents a separate channel that 

the Court must examine, and which does not preclude the other as each has its own applicable area 

of substantive law that governs the rights and responsibilities of the parties.

Undisputed Facts 

Based on the parties’ filings, the following facts are undisputed. The Department of 

Corrections convicted Petitioner Marcell of misuse of authorized medication in violation of a prison 

rule, Major B-30. This rule prohibits “misuse of authorized medication, including, but not limited to, 

inmates transferring or selling their medication to another inmate.” Department of Corrections 

Directive 410.01 at 19. DOC’s initial evidence consisted of an incident report by a corrections 

officer who witnessed the incident and accused Petitioner of improperly having some of his 

sublingual Medication Assisted Treatment (MAT) medication on top of his tongue. On the Notice 

of Hearing Form dated July 25, 2023, Petitioner indicated his desire to call Nurse Lisa (the MAT 

distribution nurse) and the reporting officer as witnesses at his disciplinary hearing. 

The disciplinary hearing was held on August 2, 2023. At the start of the disciplinary hearing, 

the hearing officer asked Petitioner Marcell if he still wished to have the reporting officer present. 

Petitioner stated that he did not and waived one of the two requested witnesses. The hearing officer 

acknowledged that Petitioner still requested Nurse Lisa to testify. Petitioner explained that Nurse 

Lisa would testify that the medication was in Petitioner’s mouth. The hearing officer told Petitioner 

that he was not sure if Nurse Lisa was on-site, but that he would make the attempt to summon her if 

the hearing reached that point. 

After admission of the disciplinary report and entry of Petitioner’s plea of not guilty, the 

hearing officer allowed Petitioner to testify. Petitioner stated that he had placed the medication in 

his mouth as directed. The hearing officer then asked Petitioner a few questions and then asked 
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Petitioner if there was anything else he would like to add. Petitioner l said, “Nope.” The record 

shows that Petitioner had been enrolled in the MAT program for approximately two-years; that the 

protocol for receiving MAT medication is under the tongue where it is rapidly absorbed and avoid 

the risk that it can be transferred to another inmate. When the officer inspected the Petitioner, he 

found, and Petitioner admitted to having the majority of his MAT medication, on the top of his 

tongue where it remained unabsorbed. Rather than put it below his tongue, Petitioner spit out the 

medication upon discovery. 

The hearing officer went into deliberations and found Petitioner guilty of misusing his 

medication. Petitioner appealed his disciplinary conviction to the superintendent on August 8, 2023. 

Petitioner raised two issues: (1) that he had taken his MAT medication correctly; and (2) that the 

hearing officer did not call his requested witnesses, Reporting Officer Houle and Nurse Lisa. The 

superintendent denied Petitioner’s appeal on August 11, 2023, writing, “(1) You admitted in your 

DR hearing your [sic] aware the medication is to be under your tongue & it was not.” The 

superintendent did not explicitly respond to Petitioner’s appeal issue regarding the Department’s 

failure to call his requested witnesses. 

Legal Analysis I: Some Evidence

The Department’s argument for summary judgment relies upon the “some evidence in the 

record” standard. Herring v. Gorczyk, 173 Vt. 240, 243 (2001) (citing Superintendent v. Hill, 472 U.S. 

445, 455 (1985)). The Department notes that the record shows that Petitioner had a history of 

receiving MAT medication and was aware of the protocol for receiving the mediation below the 

tongue Petitioner was found to have put the medication above his tongue where it remained 

unabsorbed. This evidence is sufficient for the Department to draw the finding that Petitioner 

misallocated the medication and was attempting to divert it. Whether or not the officer’s evidence 

was credible or not or whether the finding reached by the Department that such behaviors are 

consistent with the diversion of MAT medication is outside the scope of the Court’s review. Herring 

, 173 Vt. at 243. By statute, the MAT programs is under the purview of the Department of 

Corrections 28 V.S.A. § 801b. The Department also has broad authority to make rules and 

regulations governing the administration of such medication and to impose discipline on inmates 

who violate such rules. 28 V.S.A. §§ 101, 601, 801 and 851. The Court is obligated to exercise 

deference to the Department and its expertise in administering this MAT program and detecting 

diversion and efforts to misappropriate medication that is consistent with its expertise. Plum Creek 
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Main Timberlands, LLC v. Vermont Dept of Forest, Parks & Recreation, 2016 VT 103, ¶ 31. Under this 

standard, the record is sufficient to affirm the Department’s imposition of discipline on Petitioner.

Legal Issue II: Superintendent’s Failure to Specifically Address Petitioner’s Arguments

The next issue is Petitioner’s second argument. Notwithstanding the evidentiary record, 

Petitioner contends that the superintendent’s failure to address Petitioner’s contention that he was 

not allowed to call Nurse Lisa constituted a violation of Section 410.01 of the Department’s own 

directives. The section that Petitioner specifically relies upon is found on page 14 of the Directive 

and states:

The Superintendent may, upon their review of the appeal, deny the requested relief, 

or direct any other appropriate action; e.g., dismiss the appeal, order a new hearing, 

order a modification of findings reducing sanctions, etc. The Superintendent will 

specifically address all appeal issues raised by the inmate in the appeal. The 

Superintendent will respond to the appeal within thirty (30) calendar days from the 

date the appeal was delivered by the inmate to a staff member at the facility. Failure 

to respond to the appeal within thirty (30) calendar days will result in the dismissal of 

the disciplinary action, and staff will expunge the DR packet from the inmate’s file 

and the database.

Department of Corrections Dir. 410.01(9)(c), at 14. 

Petitioner argues that a failure to address his witness and due process issue constituted an 

incomplete response and violates Directive 410.01(9)(c)’s 30-day requirement. The Court does not 

understand the plain language of this directive to support Petitioner’s interpretation. The Directive 

ties the nullification and dismissal to a delay by the Superintendent in filing any response. As the 

Vermont Supreme Court has noted, the idea if to avoid untimely delays and prejudice that accrues 

through protracted deliberation. Loveland v. Gorczyk, 173 Vt. 501, 501–02 (2001) (mem.). As 

Loveland notes, the contents of the decision are not relevant to whether the nullification provisions 

apply, only whether the superintendent has made the decision. Id. In this respect, the provisions of 

this section are similar an applied in a manner that is akin to the “deemed approved” language in 

zoning statutes. Id. at 504 (Skoglund, J. dissenting). The Court has long held that these type of 

provisions are not short-cuts to avoid the merits of a decision but a remedy to avoid “indecision and 

protracted deliberations . . . .” In re McEwing Services, LLC, 2004 VT 53, ¶ 21. 

In the present case, there is no evidence of delay, indecision, or protracted deliberation. 

While the superintendent did not expressly address the issue that Petitioner has raised, nothing in 
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the decision would cause Petitioner to understand or be under the ambiguity that his argument had 

found purchase with the superintendent or was still under consideration. Moreover, the 

requirement to address all arguments is not tied to a specific remedy. Given that Petitioner has 

appealed and continued his argument, the Court finds that this error is harmless and has not 

impinged upon Petitioner’s ability or right to appeal. For these reasons, the Court finds no legal 

basis to set aside Petitioner’s discipline based on the superintendent’s failure to expressly address 

Petitioner’s argument concerning witnesses.

Legal Analysis III: Lack of Due Process

Petitioner’s primary argument on appeal concerns the failure to call Nurse Lisa during his 

disciplinary hearing.1 While the Department notes that Petitioner had two opportunities to either 

delay the hearing (when informed that Nurse Lisa was likely unavailable) or to call her (at the end of 

his testimony when the hearing officer asked Petitioner if he had anything further), these “missed 

opportunities” depend, in part, on making factual findings. Instead, the Court’s analysis in King v, 

Gorczyk is instructive. 2003 VT 34, at ¶ 10. A party seeking to assert a due process claim from the 

failure to allow a witness or piece of evidence at a hearing must show prejudice resulting from the 

omission of the witness or evidence. In King, the Vermont Supreme Court found no prejudice and 

by extension no violation of an inmate’s due process based on the Department’s omission of 

specific laboratory test because even if the results had been admitted, they would have showed the 

inmate to be under the influence of THC and in violation of the rules. Id. 

In the present case, Petitioner asserts that if Nurse Lisa had testified, she would confirm that 

Petitioner had the medication in his mouth. This may be true, but it is not a contested fact. The 

Department concedes that Petitioner had the medication in his mouth. It is where Petitioner had 

the medication in his mouth—specifically atop the tongue where it would not immediately be 

absorbed and where it could more readily be diverted. Nothing in Petitioner’s proffer indicates that 

Nurse Lisa could have testified differently about the location of the medication, and the record 

indicates that the location was not disputed. 

1

 Petitioner does not dispute the record, which shows that he waived his right to call CO Houle as a witness.
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Based on these uncontested facts, the Court finds no prejudice attaching to the failure to call 

Nurse Lisa as a witness, and nothing in Petitioner’s argument demonstrates prejudice from this 

defect.

ORDER

The Department’s Motion for summary judgment is Granted. Petitioner’s Motion for 

summary judgment is Denied. The Department’s discipline against Petitioner is Affirmed, and the 

present appeal is dismissed.

Electronically signed on 3/4/2024 3:17 PM pursuant to V.R.E.F. 9(d)

__________________________________ 

Daniel Richardson

Superior Court Judge