7ermont Superior Court Filed 07/01/24 Orleans UUnit

VERMONT SUPERIOR COURT Orleans Unit 247 Main Street Newport VT 05855 802-334-3305 www.vermontjudiciary.org

CIVIL DIVISION

Case No. 23-CV-05064

Bryan Lenane Nicholas Deml et al

ENTRY REGARDING MOTION

Title: Motion for Summary Judgment (Motion: 3) Filer: Annemarie Manhardt Filed Date: May 16, 2024

The motion is DENIED.

This Rule 75 appeal from disciplinary determination. Petitioner Lenane has filed motion for summary judgment, to which the Department has not opposed or filed response.

The facts as established bythe administrative record and Petitioner's undisputed statement of material facts are as follows. Petitioner is currently

incarcerated at the Northern State

Correctional Facility. On October 2, 2023, Corrections Officer observed Petitioner and his cell mate in their cell standing over white piece of paper with white powdery substance, which was

partially

covered by playingcard. The Corrections Officer instructed Petitioner and his roommate

to step awayfrom the desk, which they did. The roommate claimed that the white powder was his

and his alone. The Department had the white powdertested and confirmed that it was

Buprenorphine, narcotic medication given to inmates as maintenance drug

to control opiate

cravings. This substance is prescribed medication that inmates must take in front of medical

personnel and may not take back to their cells. Its presence

in Petitioner's cell constituted misuse of the medication.

Both Petitioner and his roommate were charged with Major B-20 violation under Vermont

Department of Corrections Directive 410.01. This regulation states that "Misuse of authorized medication, including, but not limited to, inmates transferring or selling

their medication to another

inmate.: Id at 20.

Entry Regarding Motion Page of 23-CV-05064 Bryan Lenane Nicholas Dem et al
Entry 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