VermontSuperiorCourtFiled03/04/24OrleansUnit

## VERMONTSUPERIOR

## COURTOrleans

### Unit247

### MainStreet

### NewportVT05855802-334-3305WWW.Vermontjudiciary.org

## CIVILDIVISIONCase

### N0.23-CV-03676fifi

# ENTRYREGARDINGMOTIONTitle:MotionforSummary

### Judgment;Cross

### MotionforSummary

### Judgment(Motion:2;3)

### Filer:

### Kassie

### R.

### Tibbott;AnnemarieManhardt

### FiledDate:

### December13,

### 2023;]anuary15,2024

### Themotionis

## GRANTEDIN

## PARTand

## DENIEDIN

### PART.Thisis

### Rule75appealseekingtosetasidedisciplinarydeterminationbasedontwoproceduraldefects,namelythe

### lack

### ofWitnessthatPetitionerclaimsheintendedtocalltotestifyandthesuperintendent’sfailuretospecificallyaddressthisissueinhisdecisiontoaffirmthehearingofficer.

### Rule75appealsare

### notdenovoappealsordirectappeals,butrathertheyarelimitedjudicialreviews

### oflowertribunaloranadministrativedecisionthatfalls

### intoone

### ofthreetypes.RbezmmeI).Pal/#0,2011

## VT72,1H]5—8.

### Inthiscase,the

### reviewfallsunderthecertiorari—type

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### whichlookstotheapplicable

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### governingthecasetodefinethenature

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### Bd,142

### Vt.495,497(1983).

### Itis

### notanappealtocorrectmereerrorsmadeintheexercise

### oflawfuljurisdiction.Rhodesz).TownofWoodstock,132

### Vt.323,325(1974).

### Itislimitedtoreviewthatensuresthe

### inferiortribunalstays

### withinthelimits

### ofitsjurisdictionandthatsuchjurisdictionisexercised

### withregularity.Id.

### Thesestandardsshapethe

### Court’sreview

### ofeach

### oftheissuesraised

### intheparties’

### competingsummaryjudgmentmotions.Petitioner’s

### motionraisestwoargumentsunder

### Rule75.

### Thefirstisdueprocesschallenge.

### Theallegationisthat

### Petitionerwantedtohavewitnessathisdisciplinaryhearing,the

### Departmentknew

### ofthis

### wish,andthe

### Departmentfailedto

### providethewitness.

### Thisresultedinanallegedconstitutionaldefect

### intheproceeding

### byfailingto

### allowPetitionertoputonthenecessaryevidenceanddefense.

### Thesecondchallengeisbasedonadministrativerules

### governingthegrievance

### ofEntryRegardingMotionPageof23—CV—03676JoshuaMarcellNicholasDemleta1

## JoshuaMarcell

## Nicholas

## Demleta1Entry Regarding Motion Page 2 of 6

23-CV-03676 Joshua Marcell v Nicholas Deml et al 

### 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 askedEntry Regarding Motion Page 3 of 6

23-CV-03676 Joshua Marcell v Nicholas Deml et al 

### 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 CreekEntry Regarding Motion Page 4 of 6

23-CV-03676 Joshua Marcell v Nicholas Deml et al 

### 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 inEntry Regarding Motion Page 5 of 6

23-CV-03676 Joshua Marcell v Nicholas Deml et al 

### 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.Entry Regarding Motion Page 6 of 6

23-CV-03676 Joshua Marcell v Nicholas Deml et al 

### 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