Morgan v. Mena rd

, 288

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- 17 Wncv (Teachout, J., Oct. 2 7, 2017 ).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the orig inal. 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. 288

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- 17 Wncv

MATTHEW J. MORGAN

Plaintiff

v.

LISA MENARD et al.

Defendant s

DECISION

The State ’s Motion to Dismiss

Plaintiff

– Inmate Matthew Morgan initiated this case claiming that the Department of Corrections unlawfully seized legal documents from his possession . The documents at issue apparently relate to other inmates’ legal claims, not Mr. Morgan’s. However, he apparently claims a right to assist other inmates that has been impeded by the document seizure. The State

has filed a motion to dismiss arguing that the court lacks subject matter jurisdiction because Mr. Morgan nev er pursued and completed an administrat ive grievance

.

“This Court has consistently held that when administrative remedies are established by statute or regulation, a party must pursue, or ‘exhaust,’ all such remedies before turning to the

courts for relief.” Jordan v. State Agency of Transp. , 166 Vt. 509, 511 (1997) (emphasis added) ; see also Pratt v. Pallito , 2017 VT 22 (discussing distinction between exhaustion and preservation).

Mr. Morgan concedes that he never pursued or completed the DOC’s ordinary grievance

process. See DOC Directive 320.01. Instead, he grieved directly to the Commissioner herself pursuant to 28 V.S.A. § 854(2), which provides: “ All inmates shall be allowed to communicate grievances directly to the commissioner, and an inmate’s ri ght to file grievances shall not be

restricted. ” The Commissioner responded as follows:

You have communicated a grievance directly to the Commissioner pursuant to 28 V.S.A. § 854(2). Your grievance has been reviewed and it has been determined that your grievance is not an emergency grievance and does not allege serious employee misconduct, criminal activity or sexual , physical or psychological abuse or assault.

In other words , the Commissioner received the grievance and declined to exercise her discret ion

to take action or further address its substance without proper exhaustion of the ordinary grievance process.

Mr. Morgan’s reliance on his direct grievance under § 854(2) in opposition to dismissal2

here is misplaced. While § 854(2) preserves a right to communicate grievances directly to the commissioner, that does not mean that doing so alone necessarily avoids the obligation to exhaust administrative remedies under the normal grievance procedure. This court has so ru led many times. See, e.g., Wheelock v. Centurion of Vermont , No. 257

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- 16 Wncv (Vt. Super. Ct. March 3, 2017) (Teachout, J.); Wool v. Cohen

, No. 825

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- 15 Wncv (Vt. Super. Ct. May 27, 2016) (Tomasi, J.); Wool v. Pallito , No. 455

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- 15 Wncv (Vt. Super. Ct. Apr. 18, 2016) (Tomasi, J.); Ladd v. Hoffman

, No. 438

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- 08 Wncv (Vt. Super. Ct. May 18, 2009) (Toor, J.).

Here, the Commissioner’s decision to not address the substance of Mr. Morgan’s grievance pursuant to § 854(2) was well within her discretion. Mr. Morgan nevertheless was

able to communicate that grievance to her directly. That ability to communicate is p reserved by § 854(2). He was then, however, required to pursue and complete the ordinary grievance policy

to exhaust his administrative remedies . Section 854(2) is not an escape hatch that enables inmates to simply skip the regular grievance process. 1

Mr. Morgan did not exhaust his administrative remedies prior to filing this action. This court therefore lacks subject matter jurisdiction.

ORDER

For the foregoing reasons, the State’s motion to dismiss is granted.

Dated at Montpelier , Vermont this ____ day of October 201 7

.

_____________________________ Mary Miles Teachout, Superior Judge

1 The ordinary grievance policy contains a provision that requires staff to immediately forward a grievance alleging “serious employee misconduct” to their supervisor and requiring the supervisor to forward it immediately to the superintendent and the Depar tment’s hearings administrator, who forwards it to the “Agency of Human Services

Personnel Administrator for investigation and response.” DOC Directive 320.01, Directive Procedural Guidelines ¶

14 . T his provision is triggered simply by filing an ordinary gri evance with the qualifying allegations.