Fellows v. Pallito, No. 598-9-15 Wncv (Tomasi, J., Feb. 10, 2016)

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VERMONT SUPERIOR COURT

WASHINGTON UNIT

CIVIL DIVISION

│

Frank Fellows, │

 Plaintiff, │

│

 v. │

│ Docket No. 598-9-15 Wncv

Andrew Pallito, │

Commissioner, │

Vermont Department of Corrections, │

 Defendant. │

Opinion and Order on Defendant’s Motion to Dismiss

Plaintiff Frank Fellows is an inmate within the control and custody of the 

Vermont Department of Corrections (the “Department”), who is currently 

incarcerated at North Lake Correctional Facility, in Michigan. Plaintiff brings this 

action, pursuant to Vt. R. Civ. P. 75, seeking review of the Department’s decision 

not to afford him particular dietary options. The Defendant has moved to dismiss, 

arguing that Plaintiff has alleged no cognizable injury that can be reviewed under 

Rule 75. The Court makes the following determinations. 

Analysis

Plaintiff’s complaint and his supplemental filings indicate that the food at his 

facility is of low quality, is often processed, and is not accurately described in the 

menus – e.g., he claims the beef patties actually contain a significant amount of 

chicken. He is principally concerned about consuming processed foods, which he 

claims can eventually lead to cancer. Plaintiff has not asserted that he has any 

particular medical or religious need for a particular diet, and has not claimed that 
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the food provided fails to meet any established minimum nutrition or health 

standards. When he asked the Department to provide him with different menu 

options, it refused. He grieved that decision, lost, and subsequently appealed to this 

Court. 

In evaluating a motion to dismiss for lack of subject matter jurisdiction under 

Vt. R. Civ. P. 12(b)(1), the Court takes “all uncontroverted factual allegations of the 

complaint ... as true and construed in the light mist favorable to the nonmoving 

party.” Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997). In addition, 

unlike a motion under Rule 12(b)(6), the Court may also consider materials outside 

the complaint in deciding whether it has jurisdiction. See Conley v. Crisafulli, 2010 

VT 38, ¶3, 188 Vt. 11, 14.

Vt. R. Civ. P. 75. allows limited judicial review of governmental 

administrative decisions, but only “if such review is otherwise available by law.” 

The Vermont Supreme Court has interpreted this provision to mean that review is 

allowable if it “is provided by the particular statute establishing an agency,” or falls 

under one of the common law writs, namely: certiorari, mandamus, or prohibition. 

Rheaume v. Pallito, 2011 VT 72, ¶ ¶ 9-10, 190 Vt. 245, 250. Here, as there is no 

statutory right to review, this Court has jurisdiction only if one of those writs is 

applicable.

Review under a writ of certiorari allows judicial examination of decisions 

taken by public officers that are quasi-judicial in nature. The Department’s actions 

in this instance are not reviewable under certiorari because, in setting its food 
3

menus, the Department is not acting in a quasi-judicial capacity – i.e., as a court. 

Instead, it is fulfilling its duties under Chapters 3 and 11 of Title 28 to make 

decisions as to how to provide for the needs of the inmates and to review those 

decisions periodically. See Rheaume, 2011 VT 72, ¶ 10, 190 Vt. at 250. 

Nor is review available in this instance under a writ of prohibition. “The 

function of a writ of prohibition is to prevent the unlawful assumption of 

jurisdiction by a tribunal contrary to common law or statutory provisions.” In re 

Mattison, 120 Vt. 459, 463 (1958). Prohibition is plainly inapplicable here because 

the Department has the responsibility to provide food to prison inmates. See Ala v. 

Pallito, No. 2013–434, 2014 WL 3714892, at *1 (June 2014) (unpub. mem.)

(Department’s conduct in dispensing medications within its authority and not 

reviewable under writ of prohibition); cf. Rheaume, 2011 VT 72, ¶ 6, 190 Vt. at 249

(“There is no question that the structuring of programming requirements is within 

the agency purview of the [Department]; thus Rule 75 review cannot be derived 

from this writ.”).

Plaintiff’s only possible avenue of review is pursuant to a writ of mandamus. 

Mandamus is a remedy wherein the Court “require[s] a public officer to perform a 

simple and definite ministerial duty imposed by law.” Sagar v. Warren Selectboard, 

170 Vt. 167, 171 (1999). For it to apply, there must be a statutory limitation on the 

Department’s discretion. See Rheaume, 2011 VT 72, ¶¶ 9-10, 190 Vt. at 250. Here, 

plaintiff can point to no statute constraining the Department’s ability to set menus 

in its facilities. Ala, No. 2013–434, 2014 WL 3714892, at *1 (Department’s conduct 
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in dispensing medications not reviewable under writ of mandamus as it has no 

specific, statutory duty to dispense drugs in a particular manner). 

Furthermore, even under the standard of a so-called “extreme abuse of 

discretion,” where mandamus is used to address truly arbitrary abuses of power, 

relief would be unavailable. See Vermont State Employees’ Ass’n, Inc. v. Vt. Crim.

Justice Training Council, 167 Vt. 191, 195 (1997). Case law has made clear that an 

extreme abuse of discretion must amount “to a practical refusal to perform a certain 

and clear legal duty.” Inman v. Pallito, 2013 VT 94, ¶ 15, 195 Vt. 218, 224 (internal 

quotation omitted). Absent that, mandamus may not issue, no matter how 

seemingly arbitrary or extreme the Department’s decision making may appear. See 

Holcomb v. Pallito, No. 2011–316, 2012 WL 390699, at *1 (Vt. Jan. 26, 2012) 

(unpublished mem.). 

Plaintiff has submitted to the Court his complaint and two supplemental 

filings that further explain his claim. He has pointed to no clear duty that the 

Department is shirking in refusing to provide him with his desired choices of food. 

He has proffered no specific medical or religious need for such a diet. While he has 

noted his concern regarding the long-term consumption of processed foods, he has 

not asserted in his submissions that the food being provided fails to meet any 

established minimum nutritional or health standards. Under such circumstances, 

the Court has no jurisdiction to review the Department’s decision under Rule 75.1

 

1 Although Plaintiff’s complaint does not contain a constitutional claim, the 

Court notes that any such cause of action also would be unlikely to succeed. See

Cunningham v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977) (complaints about the 

preparation or quality of prison food are generally “far removed from Eighth 
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Conclusion

In light of the foregoing, the Motion to Dismiss is granted.

Electronically signed on February 10, 2016 at 09:58 AM pursuant to V.R.E.F. 7(d).

________________________

Timothy B. Tomasi

Superior Court Judge

 

Amendment concerns”); Price v. Rees, No. 5:06-CV-P186-R, 2007 WL 2461674, at *5 

(W.D. Ky. Aug. 23, 2007) (claim of future harm from ingestion of processed foods 

presents no actionable, present injury).