7ermontSuperiorCourtFiled07/01/24OrleansUUnit

## VERMONTSUPERIOR

## COURTOrleans

### Unit247

### MainStreet

### Newport

## VT05855802-334-3305

### www.vermontjudiciary.org

## CIVILDIVISIONCase

### No.

### 23-CV-05064

### Bryan

### Lenane

## Nicholas

## Demlet

### al

# ENTRYREGARDINGMOTIONTitle:MotionforSummary

### Judgment(Motion:3)

### Filer:AnnemarieManhardt

### FiledDate:

### May16,2024

### Themotionis

## DENIED.ThisRule75appealfrom

### disciplinarydetermination.

### PetitionerLenanehasfiled

### motion

### forsummaryjudgment,to

### whichthe

### Departmenthas

### notopposedorfiledresponse.

### ThefactsasestablishedbytheadministrativerecordandPetitioner'sundisputedstatement

### ofmaterialfactsareas

### follows.

### Petitioneriscurrentlyincarceratedatthe

### NorthernState

### Correctional

### Facility.

### OnOctober2,2023,

### Corrections

### Officerobserved

### Petitionerandhiscellmate

### intheircellstanding

### overwhitepiece

### ofpaper

### withwhitepowderysubstance,

### whichwaspartiallycoveredby

### playingcard.

### TheCorrections

### Officerinstructed

### Petitionerandhisroommatetostepawayfromthedesk,

### whichtheydid.

### Theroommateclaimedthatthe

### whitepowderwashisandhisalone.

### TheDepartmenthadthe

### whitepowdertestedand

### confirmedthat

### itwas

### Buprenorphine,narcoticmedication

### giventoinmatesasmaintenancedrugto

### controlopiatecravings.

### Thissubstanceisprescribedmedicationthatinmatesmusttakein

### front

### ofmedicalpersonnelandmay

### nottake

### backtotheircells.ItspresenceinPetitioner'scellconstitutedmisuse

### ofthemedication.

### BothPetitionerandhisroommatewerecharged

### withMajor

### B-20violationunder

### VermontDepartment

### ofCorrections

### Directive410.01.

### Thisregulationstatesthat

### "Misuse

### ofauthorizedmedication,

### including,but

### notlimitedto,inmatestransferringorsellingtheirmedicationtoanotherinmate.:

### Idat20.EntryRegardingMotionPageof23-CV-05064BryanLenaneNicholasDemetalEntry Regarding Motion Page 2 of 3

23-CV-05064 Bryan Lenane v Nicholas Deml et al 

### At both the disciplinary hearing and on appeal, Petitioner avers that the powder was not his,

that it did not come from his medication, that he was not aware of the powder until the roommate

took it out, just before the Corrections Officer came to the cell, and that he had no other knowledge

or control of the powder. Petitioner puts all knowledge and responsibility for the drug on his

roommate.

In this case, summary judgment is not appropriate for Petitioner because the issue is

credibility. The facts of the case lend themselves to two potential scenarios. There is Petitioner’s

version of events where he is an innocent who just happens to be at the wrong place at the wrong

time, namely standing over a table looking at a contraband medication at the same moment that a

Corrections Officer enters the cell. If Petitioner’s testimony had been found credible, then a

disciplinary finding against him would have been inappropriate.

But if the hearing officers did not find Petitioner’s testimony credible, then they would be

left with a circumstantial case that Petitioner was aware of the existence of the medication in the cell

and was in a position to exercise dominion and control over it. Williams v. United States , 418 F.2d

159, 162 (9" Cir. 1969), aff’d , 401 U.S. 646 (1971). Given that the mere possession of this

medication is a violation of facility policies and rules, along with the fact that it is capable of misuse

and abuse supports a finding that Petitioner’s control over the substance at the moment that the

Corrections Office walked into the cell constituted a B-20 violation. Again, to make such a finding

and to come to this conclusion, the hearing officer would have to discredit Petitioner’s testimony

and look only to the objective pieces of evidence.

The fact that both events are plausible leads us to a Rashomon situation. 1 

### Under the

standard of review in disciplinary appeals, this leaves the Department with “some evidence” to

support its determination that at the moment the Corrections Officer entered the cell, Petitioner was

aware of the medical substance and was, in fact, standing over the substance and exercising

dominion and control, which if the medication was not his, constitutes further circumstantial

evidence that Petitioner was part of a either outright misuse or misuse and transfer of the controlled

medication. King v. Gorczyk , 2003 VT 34, ¶ 7 (“[W]hen reviewing a decision from an inmate

1 Rashomon was Japanese movie where witnesses recount through testimony an incident where a bandit is

accused of murdering a samurai and attempting to kidnap the samurai’s wife. Rashomon (Daiei Films 1950). None

of the three accounts match-up, and anyone seeking to understand the truth of the story must credit and discredit

portions of each account.Entry Regarding Motion Page 3 of 3

23-CV-05064 Bryan Lenane v Nicholas Deml et al 

### disciplinary hearing, we need find only that there was ‘some evidence’ in order to uphold a

conviction.”).

ORDER

Based on the record and evidence, summary judgment is inappropriate and is Denied.

Given that the Department has not filed a brief or opposition in this matter, the Court finds no

grounds to grant judgment to the Department. Instead, the Court will set this for a 30-minute

bench trial at its next available date.

Electronically signed on 7/1/2024 3:44 AM pursuant to V.R.E.F. 9(d)

__________________________________ Daniel Richardson

Superior Court Judge