Wright v. Menard, No. 218-4-18 Wncv (Teachout, J., Aug. 31, 2018). 

[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. 218-4-18 Wncv

DEVLIN WRIGHT

Plaintiff

v.

LISA MENARD, Commissioner,

Vermont Department of Corrections

Defendant

DECISION

The State’s Motion to Dismiss

Petitioner Devlin Wright, an inmate in the custody of the Commissioner of the 

Department of Corrections, filed this action seeking to raise an issue relating to the Department 

of Corrections’ designation of him as a high-risk sex offender pursuant to 13 V.S.A. § 5411b. 

The State promptly filed a Rule 12(b)(1) motion to dismiss, arguing that Mr. Wright failed to 

exhaust his administrative remedies because he never appealed the designation administratively 

to the Sex Offender Review Committee. Vt. Admin. Code 12-8-4:4 § 4.5. Mr. Wright alleges

that he filed and exhausted an ordinary grievance rather than an appeal to the Committee because 

he was expressly instructed to do so by his caseworker, Jeff Hill, and the assistant 

superintendent, Mike Lyons. He argues that the misdirection should estop the State from seeking 

to dismiss on exhaustion grounds.

There is no dispute that Mr. Wright received the notice of high-risk designation, and the 

notice explained than any appeal must be filed with the Sex Offender Review Committee. The 

State argues that, due to the clarity of the notice, there can be no estoppel in this case. It further 

argues that the Vermont Supreme Court has so ruled explicitly, citing In re Landry, 2015 VT 6, 

198 Vt. 565.

Landry is not pertinent to this case. In Landry, a would-be administrative appellant 

unilaterally and repeatedly subjectively misunderstood the implications of appealing a denial 

versus filing a new application on the retroactivity of benefits. Nothing on the face of the notice 

was confusing in that regard and no agent of the State otherwise misrepresented anything to the 

appellant. There was no exhaustion issue presented. The allegation in this case is that two 

agents of the State, both in substantial positions of power and authority over Mr. Wright, 

specifically directed him to exhaust his administrative remedy in one way rather than another, 

and he did so. Landry did not address similar circumstances. 

The obligation to exhaust an administrative remedy is contingent on the availability of 

that administrative remedy. Misrepresentation can render an otherwise available administrative 
2

remedy no longer available and thus eliminate the obligation to exhaust. Ross v. Blake, 136 S. 

Ct. 1850, 1860 (2016). Mr. Wright alleges misrepresentation, but the petition is spare and the 

record does not contain enough facts for the court to rule that Mr. Wright should not be excused 

from the obligation to have appealed to the Committee. Moreover, in the petition, Mr. Wright 

claims that his high-risk designation violates his plea agreement, a claim that could be 

characterized as a post-conviction relief claim. Thus, if in fact Mr. Wright was directed to file an 

ordinary grievance rather than an appeal to the Committee, it is not clear that there was any 

jurisdictional defect in so doing.

Since there is a possibility that jurisdiction can be shown, the court declines to dismiss on 

the grounds claimed by the State. 

ORDER

For the foregoing reasons, the State’s motion to dismiss is denied at this time. 

An amended complaint is due by September 21, 2018.

A stipulated pretrial schedule is due by October 5, 2018.

Dated at Montpelier, Vermont this ____ day of August 2018.

_____________________________

Mary Miles Teachout

Superior Judge