Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2015-186

SEPTEMBER TERM, 2015

Kirk Wool } APPEALED FROM:

}

} Superior Court, Washington Unit,

 v. } Civil Division

}

}

Andrew Pallito } DOCKET NO. 579-9-14 Wncv

Trial Judge: Mary Miles Teachout

In the above-entitled cause, the Clerk will enter:

Petitioner Kirk Wool appeals pro se from the trial court’s order granting summary 

judgment to defendant on his complaint. Wool argues that summary judgment was inappropriate 

because he provided an affidavit from an expert who stated that defendant’s actions violated a 

duty of care. Petitioner also asserts that the court erred in refusing to accept his amended 

complaint. Finally, petitioner argues that the court erred in construing his case as an action under 

Vermont Rule of Civil Procedure 75 when the court had previously agreed that it was a civil 

action seeking injunctive relief. We agree with petitioner that he was entitled to amend his 

complaint as a matter of right, and thus reverse and remand for additional proceedings.

Petitioner is incarcerated. He filed a complaint against defendant, the Commissioner of 

the Department of Corrections, in September 2014, seeking injunctive relief. Petitioner alleged 

that he had a long history of suffering from insomnia and severe panic attacks, and that despite 

repeated requests for medical attention from someone who could provide him with psychiatric 

medication, he had not received care since late April 2014. Petitioner maintained that this delay 

was grossly unreasonable and that it established a claim under the Eighth Amendment to the U.S. 

Constitution for gross deliberate indifference to serious mental health needs. Petitioner sought 

immediate injunctive relief to enjoin defendant from continuing to deny him necessary mental 

health care.

In an October 2014 entry order, the court denied petitioner’s request for injunctive relief

“at this time.” It construed petitioner’s complaint as a request for review of governmental action 

under V.R.C.P. 75. Petitioner moved for reconsideration, asserting that he had filed his 

complaint as a civil action that presented an Eighth Amendment claim of deliberate indifference 

to his serious mental health needs. He acknowledged that since filing his complaint, he had been 

seen by a mental health provider. Nonetheless, he asserted that the action was not moot because 

the delay he suffered was capable of repetition yet evading review. Petitioner asked that the 

court hold a status conference. In December 2014, the court issued an entry order, checking a 

box to indicate that the motion to reconsider was granted, and stating that the requested status 

conference had already been held.
2

In early January 2015, petitioner filed an amended complaint, purportedly as a matter of 

right under V.R.C.P. 15(a) to add additional facts and a claim for damages. Defendant filed an 

answer to this amended complaint. During a February 2015 status conference, the court held that 

petitioner was not entitled to amend his complaint as a matter of right and that the case would 

proceed on the original petition. 

By the time that petitioner filed his amended complaint, defendant had moved for 

summary judgment, asserting that petitioner’s claim was moot as he had been seen by a provider 

who prescribed medication. Petitioner opposed the motion, stating that he was dissatisfied with 

the care that he was receiving and that the case fell within an exception to the mootness doctrine. 

In support of his opposition, petitioner included an affidavit from a clinical social worker who 

averred that a delay of six months before being seen by a medical prescriber was inconsistent 

with the type of care that petitioner would have received outside of the prison setting. The social 

worker did not assert that petitioner’s current treatment violated the standard of care. 

The trial court granted defendant’s motion for summary judgment in May 2015, after 

petitioner filed his amended complaint. It stated that this was a Rule 75 action in which

petitioner claimed that he received inadequate mental health treatment. In his motion for 

summary judgment, defendant had detailed the number of times that petitioner had been seen for 

treatment since filing his complaint and argued that the case was moot. Defendant also asserted 

that petitioner’s claim for deliberate indifference must fail for lack of evidence sufficient to meet 

the legal standard. Petitioner acknowledged being provided with mental health treatment, but 

disputed the sufficiency of that treatment. However, petitioner did not present any professional 

expert opinion to support his claim of insufficiency of treatment. The court found that this was 

not a case in which no treatment had been provided or the type of claim that could be decided 

without expert evidence. Thus, because petitioner failed to provide the necessary evidence, the 

court granted summary judgment to defendant. Petitioner appealed.

We begin with petitioner’s assertion that the court erred in refusing to accept his amended 

complaint, which is tied to his argument that the court mistakenly construed his complaint as a 

Rule 75 complaint. Petitioner argues that this argument survives the summary judgment decision 

because the amended complaint seeks damages for the six-month delay in prescribing the 

medication. Petitioner maintains that he filed a “civil suit,” which the trial court acknowledged 

at one point, and that he therefore was entitled to amend his complaint as a matter of right under 

V.R.C.P. 15(a). 

The question of whether petitioner filed a “civil suit” or a Rule 75 complaint is critical in 

resolving whether he had the right to amend his complaint. Rule 15(a) provides that:

 A party may amend the party’s pleading once as a matter of 

course at any time before a responsive pleading is served or, if the 

pleading is one to which no responsive pleading is permitted and 

the action has not been placed upon the trial calendar, the party 

may so amend it at any time within 20 days after it is served. 

Otherwise a party may amend the party’s pleading only by leave of 

court or by written consent of the adverse party; and leave shall be 

freely given when justice so requires. 
3

Under Rule 75(b), “[n]o responsive pleading need be filed unless required by statute or 

by order of the court.” Defendant argues that on October 17, 2014, the trial court ordered that 

the matter would be treated as a complaint under Rule 75 for review of governmental action. 

Thus, defendant asserts that petitioner’s right to amend his complaint expired, at the latest, 

twenty days after the court’s order on November 6, 2014. Defendant acknowledges that the 

court later granted petitioner’s motion to reconsider as to the nature of the complaint that he 

filed, but states that petitioner cites no authority for the proposition that this ruling would 

“revive” petitioner’s right under Rule 15(a) to amend his complaint as of right.

It is evident that petitioner sought only injunctive relief in his initial complaint; he 

specifically disavowed that he was seeking any money damages. The court construed the action 

as one brought under Rule 75. In his motion for reconsideration, petitioner stated that he had 

filed this as a “civil action” that presented a claim under the Eighth Amendment and he asserted 

that “demoting this case to a Rule 75” was not proper. At that point, it did not make a significant 

difference how the complaint was classified. The court issued an entry order, however,

indicating that the motion to reconsider was granted. With this ruling, petitioner could 

reasonably rely on the rules governing amendments of such complaints. Under the plain 

language of the rule, he had the right to amend because defendant had not yet filed a responsive 

pleading. Defendant does not argue that a motion for summary judgment is a “responsive 

pleading” for the purpose of Rule 15, and indeed, the law is to the contrary. See, e.g., 6 Charles 

A. Wright, et al., Federal Practice and Procedure § 1483 (3d ed.) (addressing analogous federal 

rule, and explaining that summary-judgment motions “are not ‘responsive pleadings’ in any 

sense”). Indeed, we note that defendant filed an answer to petitioner’s amended complaint. 

Petitioner was entitled to file an amended complaint, and we therefore must reverse and remand 

for additional proceedings.

We recognize that there is still an argument as to whether the affidavit filed by the social 

worker demonstrates the necessary expert testimony to defeat summary judgment. The trial 

court never addressed this question because it did not consider the amended complaint, and we 

do not, therefore, address it here. 

Reversed and remanded.

BY THE COURT:

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Marilyn S. Skoglund, Associate Justice

_______________________________________

Harold E. Eaton, Jr., Associate Justice