Lowe v. Menard, 237-4-18 Wncv (Teachout, J., June 5, 2019)

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 237-4-18 Wncv

SCOTT LOWE

Plaintiff

v.

LISA MENARD, Commissioner,

Vermont Department of Corrections

Defendant

DECISION

Cross-Motions for Summary Judgment

Scott Lowe is an inmate in the custody of the Commissioner of the Department of 

Corrections (DOC). He seeks Rule 75 review of the DOC’s decision to not give him a “bottom 

bunk pass” guaranteeing him the ability to sleep on a bottom-level bunk. Mr. Lowe claims that 

he needs to sleep on a bottom bunk due to “night terrors” that he suffers as a consequence of his 

diagnosed, serious psychiatric illnesses, depression and post-traumatic stress disorder. The DOC 

has filed a motion for summary judgment arguing that bed-height is immaterial to treatment for 

night terrors, and that Mr. Lowe has failed to come forward with any expert testimony in support 

of his preferred treatment, sleeping on a bottom bunk. Mr. Lowe has filed a cross-motion for 

summary judgment arguing that the DOC’s failure to give him a bottom bunk pass violates the 

Eighth Amendment.

There is no dispute that the DOC has offered Mr. Lowe treatment consistent with the 

standard of care in the community for what he experiences as night terrors, episodes during sleep 

that may include fear, screaming, and kicking. There also is no dispute that Mr. Lowe has 

refused to accept the treatment offered by the DOC. 

The DOC characterizes Mr. Lowe’s claim in this case as medical malpractice, arguing 

that he refuses treatment within the standard of care in preference for the treatment of his 

choice—sleeping on the bottom bunk—that will have no bearing on any psychiatric condition 

causing night terrors. The DOC faults him for not coming forward with expert testimony 

showing that sleeping on a bottom bunk treats night terrors. The DOC’s motion is denied 

because it plainly mischaracterizes Mr. Lowe’s claim. Mr. Lowe expressly seeks to sleep on a 

bottom bunk for safety reasons. He claims that his night terrors have caused him to fall out of 

bed and are likely to do so in the future. He invokes his right to refuse the treatment offered by 

the DOC and objects that the DOC will not accommodate his condition. See generally 1 Michael 

B. Mushlin, Rights of Prisoners § 4:38 (5th ed.) (discussing prisoners right to refuse treatment).

Mr. Lowe’s Eighth Amendment claim also fails. Mr. Lowe cannot at once claim that the 

DOC is making proper medical treatment available to him and being deliberately indifferent to 
2

his needs. See Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (“Prisoners do not have a 

constitutional right to any particular type of treatment. Prison officials do not violate the Eighth 

Amendment when, in the exercise of their professional judgment, they refuse to implement a 

prisoner’s requested course of treatment.” (citation omitted)). 

Mr. Lowe claims that for most of the time he has been incarcerated, which has been since 

2011, he has had a bottom bunk pass as an accommodation provided in compliance with the 

Americans with Disabilities Act (ADA), and that the refusal to provide him a pass now violates 

his right to an accommodation under the ADA. Neither party has addressed Mr. Lowe’s ADA 

claim, which remains to be resolved.

ORDER

For the foregoing reasons, the parties’ cross-motions for summary judgment are denied.

A pretrial status conference will be scheduled to plan for an evidentiary hearing.

Dated at Montpelier, Vermont this ____ day of June 2019.

_____________________________

Mary Miles Teachout

Superior Judge