McLaughlin v. Pallito, No. 42-1-14 Wncv (Teachout, J., January 13, 2014)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 42-1-14 Wncv

William McLaughlin

Plaintiff

v.

Andrew Pallito, Commissioner,

Vermont Department of Corrections

Defendant

DECISION

Mr. McLaughlin’s Motion for Summary Judgment

Vermont Inmate William McLaughlin has been held in administrative segregation at the 

Lee Adjustment Center in Beattyville, Kentucky for a protracted time, currently exceeding one 

year.

1

 He claims that the processes by which the Department of Corrections (DOC) placed him 

in segregation and has kept him there since violate his due process rights and the DOC’s own 

directives.

2

 He requests that this court order the DOC to release him from segregation or to 

conduct an administrative segregation hearing that fully complies with his procedural rights. Mr. 

McLaughlin has filed a motion for summary for judgment, which the DOC opposes.

Mr. McLaughlin originally was placed in segregation pending a disciplinary hearing 

related to suspected involvement in a fight resulting in the broken jaw of another inmate. That 

disciplinary proceeding was dismissed, and another was begun, when video footage of the 

incident was found to show that Mr. McLaughlin was involved in a different fight. He was 

convicted of the second violation before a Lee Adjustment Center hearing officer. That 

conviction later was vacated and he was granted a new hearing before a Vermont hearing officer. 

The third proceeding resulted in a conviction, but Commissioner Pallito reversed it on February 

13, 2014 out of “procedural and due process concerns” despite, according to him, “compelling” 

evidence of guilt. The disciplinary violation was expunged and there were no further 

disciplinary proceedings related to the fight. Nearly a year later, Mr. McLaughlin remains in 

segregation.

 

1 Mr. McLaughlin alleges that he was first placed in segregation in December 2013. No filings in this case, the most 

recent of which is August 4, 2014, indicate that he ever has been removed from segregation. For purposes of this 

decision, the court assumes that he remains in administrative segregation now.

2 Vermont inmates are housed at the Lee Adjustment Center under contract between the DOC and Corrections 

Corporation of America (CCA). There is no dispute that the DOC’s directives controlling administrative 

segregation apply to this inmate population and no party has asserted that this court lacks personal or subject matter 

jurisdiction. Moreover, there is no suggestion that, in relation to Mr. McLaughlin, the distinction between the DOC 

and CCA has any bearing on this case. The court thus refers in this decision to the DOC and the operators of the 

Lee Adjustment Center collectively as the DOC.
2

During the disciplinary proceedings, it is unclear which segments of Mr. McLaughlin’s 

segregation were disciplinary and which administrative. It is similarly unclear whether the 

conditions of confinement differ with the classification. There appears to be no dispute that all 

or nearly all of the subsequent segregation has been administrative. The actual conditions of Mr. 

McLaughlin’s confinement while segregated are not in the record.

Placement in administrative segregation

Procedural aspects of administrative segregation are set out in Directive #410.03. 

Placement on administrative segregation generally begins with a placement report stating 

specific reasons that warrant segregation. Directive #410.03, Procedural Guidelines § 2(a). A 

notice of hearing is completed and reviewed with the inmate. Id. § 2(b). The Superintendent 

reviews the report and the notice to ensure that there is just cause for segregation and that notice 

was proper. Id. § 2(c). A due process hearing must occur no later than the fourth day of 

segregation. Id. § 2(d).

A hearing officer presides over the due process hearing. Id. § 3(g). A presenting officer, 

“who was not involved in the preliminary decision to place the inmate on segregation,” makes 

the case in favor of segregation. Id. § 3(e). The inmate has a right to appear at the hearing, id. § 

3(c), with the benefit of a hearing assistant, id. § 3(d), to make the case against segregation. At 

the hearing, the inmate has the right to be present and to be heard, to call and cross-examine 

witnesses, and to submit a written statement and other documentary evidence. Id. § 3(g)(iii) and 

Attachment #3 (Notice of Hearing) to Directive #410.03. The hearing is recorded by “digital, 

audio or audiovisual equipment.” Id. § 3(g)(ii).

After considering “all evidence presented,” id. § 4(c), the hearing officer then makes 

findings and a recommendation in favor of or against segregation, id. § 4(a), (b). “No inmate 

may be recommended for Administrative Segregation unless it is supported by at least a 

preponderance of the evidence presented. Id. § 4(c). To warrant segregation, the findings must 

establish one of the following:

a. An inmate is charged with a disciplinary violation (DR) and is awaiting a 

disciplinary hearing, and, in the judgment of staff, may become disruptive or be 

dangerous if left in general population. If a DR hearing, [sic] is held within four 

(4) business days after the inmate is placed in segregation, an Administrative 

Segregation hearing does not need to be held.

b. An inmate may pose a serious escape risk;

c. An inmate requests and/or requires protective custody;

d. An inmate is a danger to others;

e. An inmate has demonstrated that they are a threat to the secure and orderly 

running of the facility;
3

f. During investigation of an allegation of, or information about, an inmate’s 

involvement in the commission of a crime, and staff feel the inmate poses a threat 

to the secure and orderly operation of the facility;

g. Upon the order of a physician or equivalent provider (Advanced Practice 

Nurse, Nurse Practitioner or Physician Assistant).

Id. § 1. The Superintendent must approve segregation. Id. § 4(d). The inmate then may appeal 

to the Commissioner. Id. § 5.

Following placement in administrative segregation

Nothing in Directive #410.03 provides any temporal limit on the duration of an inmate’s 

segregation. Instead, the inmate’s segregation undergoes 7, 30, and 60-day reviews indefinitely. 

At each 7-day review, the segregation review committee reviews the inmate’s status. Directive 

#410.03, Procedural Guidelines § 6(c). The directive describes no process with regard to how 

this is done, though the committee will consider a written statement from the inmate if one was 

submitted during the previous week. At each 30-day review, the review committee “will make a 

new written finding of fact and determination regarding placement.” Id. § 6(d)(ii). The inmate 

is allowed to submit a written statement and is permitted to attend the review, though evidently 

has no other procedural protections. Id. § 6(d)(i). It is unclear whether the committee’s finding 

is whether there is a continuing basis for segregation or something else. If the former, it is 

unclear upon what record such a finding might be based. At each 60-day review, the deputy 

commissioner reviews documents, including the inmate’s behavioral plan, DRs and incident 

reports from the past 60 days, a medical/mental health treatment plan, etc. Id. § 6(e). The 

inmate has no procedural rights at the 60-day review.

The culmination of each review is a recommendation to the Superintendent to:

i. Continue on the current status;

ii. Modify the conditions of confinement;

iii. Move to Phase II Segregation (after 30 days only);

iv. Remove from Administrative Segregation.

Id. § 6(f). Phase II Segregation presumably is less restrictive; it requires good behavior, 

completion of in-cell programming requirements, and adherence to the behavioral plan. Id. § 7. 

The inmate must be released from segregation when one of three conditions is present: “1) the 

condition, which required placement, is no longer present; 2) upon completion of a disciplinary 

hearing and transfer of the inmate to Disciplinary Segregation; 3) upon approval of a physician 

who authorized placement.” Id. § 8(b).

There is no right to an administrative appeal from a decision to continue segregation at 

the 7, 30, and 60-day reviews.
4

Issues and the sufficiency of the record

Mr. McLaughlin claims that, in some manner, decisions of the DOC have violated either 

or both the procedures required by Directive #410.03 or his constitutional right to due process. 

He emphasizes that the initial DR was expunged and the factual findings at segregation hearings 

and reviews are sparse to nonexistent. The DOC generally responds that it is not required to 

follow the directive, Mr. McLaughlin has no applicable due process rights, and that he has 

received most or all of the reviews to which he is entitled. Moreover, it has submitted an 

affidavit that presumably is intended to justify continued segregation as necessary to protect 

inmate safety and order within the facility.

Evaluation of whether there are disputes of material fact is difficult due to the 

presentation of the case. While Petitioner has laid out a statement of facts that cites to the record 

in compliance with Rule 56(c)(1)(A) and has attached record documentation, Petitioner does not 

include an affidavit that provides context or explanation for the record documents. Furthermore, 

it appears that the entire record is not attached to Petitioner’s motion. The response of 

Respondent appears to rely on significant additional documentation. Petitioner represents that 

these documents were not provided in discovery and thus not available to Petitioner. They 

complicate the factual material considerably, but it is still not clear that the court has the entire 

record. Moreover, the response to the Petitioner’s statement of material facts does not clarify 

disputes of fact by citations to supporting documents or affidavits, but merely gives conclusory 

statements that there is a dispute; Respondent’s memo then relies on facts by citing to an 

attached affidavit without lining the factual material up with Petitioner’s statement of disputed 

facts. This presentation, complicated by Respondent’s representation that Mr. McLaughlin has 

been on segregated status on a variety of grounds for periods that are not clearly specified in the 

facts, makes it extremely difficult to determine whether or not the record is complete and 

whether or not there are material facts in dispute.

As to legal issues, this case is not before the court for a de novo decision on whether Mr. 

McLaughlin should be segregated. This is a Rule 75 case. The court’s role is to review the 

governmental action at issue and, to the extent that it is reviewable, determine its lawfulness. 

While the record is clear that Mr. McLaughlin is in administrative segregation, it is unclear 

which due process hearing and resulting segregation decision is the operative one; the record 

includes indications of several. It is also unclear what occurred at various hearings or whether 

Mr. McLaughlin appealed outcomes. If the case is before the court for review of the DOC’s 7, 

30, or 60-day review decisions, it is unclear whether Mr. McLaughlin exhausted administrative 

remedies by filing a grievance before seeking review in this court. Again, while documents 

showing the outcome of decisions are in the record, the full record of administrative proceedings 

appears not to be. This makes it difficult to analyze Petitioner’s claim that the DOC has not 

followed required procedural requirements. Without an organized factual record, there is also an 

insufficient basis on which to consider Respondent’s claim that the Petitioner has no right to 

require compliance with the terms of the DOC directive.

In short, the record is too incomplete for the court determine that either party is entitled to 

summary judgment. It consists almost entirely of some documentation of DOC decisions but 

includes little to none of the administrative record upon which any particular decision was made. 
5

The findings, to the extent required, that ostensibly support continued segregation at the 

numerous reviews are sparse and, in one case, nonexistent. In short, the record is insufficient for 

the court to determine what, if any, procedural rights in Directive #410.03 apply to this case and 

whether they have been satisfied or whether some additional process is due.

The court also declines to address constitutional due process as a separate matter at this 

time. Under either the United States or Vermont constitution, consideration of Mr. 

McLaughlin’s due process rights would have to include some examination of the conditions of 

his confinement in segregation. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (protected 

liberty interest sufficient to warrant procedural protections limited to freedom from “atypical and 

significant hardship on the inmate in relation to the ordinary incidents of prison life”); Parker v. 

Gorczyk, 170 Vt. 263, 273 (1999) (rejecting Sandin and instead requiring “a fact-sensitive 

examination of the particular circumstances involved, including consideration of the nature and 

significance of the interest at stake, the potential impact of any decision resulting in a deprivation 

of that interest, and the role that procedural protections might play in such a decision”). Except 

for Mr. McLaughlin’s assertion in argument that segregation is the equivalent of torture, the

record is silent with regard to the actual conditions of Mr. McLaughlin’s confinement. Neither 

the label “segregation” nor the duration of a status imposing unknown conditions alone is 

sufficient to evaluate due process rights.

ORDER

For the foregoing reasons, Mr. McLaughlin’s motion for summary judgment is denied. A 

status conference will be scheduled.

Dated at Montpelier, Vermont this ____ day of January 2015.

_____________________________

Mary Miles Teachout,

Superior Judge