Ladd v. Pallito , No. 294

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- 15 Wncv (Tomasi, J. , Aug 25, 201 6).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the t ext and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] VERMONT SUPERIOR COURT SUPERIOR COURT CIVIL DIVISION Washington Unit Docket No. 294

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- 15 Wncv │ Eugene Ladd, │ Plaintiff, │ │
v. │ │ Andrew Pallito, Commissioner, │ Vermont Department of Corrections, │ Defendant. │ │ Opinion and Order on Cross

- Motions for Summary Judgment In this case, Inmate Eugene Ladd seeks reimbursement from the Vermont Department of Corrections (DOC) for charges against his inmate account for photoc opies he requested of his legal papers (presumably , filings for his various lawsuits). 1 He asserts that the charges violate a final judgment in a prior case and, otherwise, that such charg es could only be lawful if the L egislature specifically authorized them , and it has not. The parties have filed cross

- motions for summary judgment. Mr. Ladd’s basic claim is straightforward. He believes that the DOC under no circumstances can charge him for making photocopies of his legal papers that he requests unless the L egislature has adopted a statute that expressly so provides.

1 The DOC estimates the amount in dispute in this case is $18.85 as of November 23, 2015. Mr. Ladd suggests that the amount has grown since then. In the c omplaint, Mr. Ladd also sought reimbursement for certain charges for postage ($2.93). The parties agree that the postage charges now have been reimbursed, and Mr. Ladd has withdrawn that claim.2

Based on that belief, he filed a smal l claims action in 2011 seeking reimbursement for several years’ worth of photocopy charges . He prevailed in that case

. After the adverse small claims judgment, the DOC evidently continued charging him for photocopying, which led to this case. Mr. Lad d now argues that , because t he legal issue was finally determined by the small claims judgment and the DOC otherwise lacks authority to levy him for photocopies, the charges violate his due process rights and a mount to unconstitutional takings. He sued the DOC and the Commissioner in both his official and individual capacities. The prior judgment and Mr. Ladd’s extrapolations in this case have caused the State to brief numerous arguments, including several constitutional issues and immunity doctrin es. In the Court’s view, h owever, the case first boils down to three potentially dispositive issues: (a ) whether Mr. Ladd properly exhausted his administrative remedies; (b ) whether the small claims judgment has any preclusive effect here ; and, (c ) if not , whether the photocopy charges are unlawful. It is important to note at the outset, though, what this case is not about. This case has nothing to do with Mr. Ladd’s right to access the court s or his ability to access photocopy services while in jail . T here is no allegation of any denial of such

access. 1

. Summary Judgment Standard Summary judgment is appropriate if the evidence in the record, referred to in the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine3

issue as to any material fact and that any party is entitled to a judgment as a matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland , 163 Vt. 83, 86 (1994) (summary judgment will be granted if, after adequate time for discovery, a party fails to make a sho wing sufficient to establish an essential element of the case on which the party will bear the burden of proof at trial). The Court derives the undisputed facts from the parties’ statements of fact and the supporting documents. Boulton v. CLD Consulting Engineers , Inc. , 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing summary judgment may not simply rely on allegations in the pleadings to establish a genuine issue of material fact. Instead, it must come forward with deposition excerpts or affidavits to establish such a dispute. Murray v. White , 155 Vt. 621, 628 (1991).
2. Exhaustion of Administrative Remedies The State argues that Mr. Ladd failed to exhaust his administrative remedies because he failed to pursue the final step of the grievance policy, the appeal to the Commissioner. See Directive 320.01 Procedural Guidelines § 15(b) ( iii ) ( “ Upon return of a Commissioner’s decision, the disposition is considered final in regard to administrative remedy. The re are no further administrative appeals. ”). The record is more complicated. Mr. Ladd reached the step of the grievance policy at which he should have filed a “decision appeal to corrections executive , ” Grievance Form #5, one step before the appeal to th e Commissioner. He asserts that he was unable to identify the correct corrections executive, or whether one existed, and so proceeded directly4

to appeal to the Commissioner. He so noted his confusion in the appeal to the Commissioner. The DOC grievanc e coordinator, recognizing that Mr. Ladd had not already appealed to the corrections executive, spontaneously routed Mr. Ladd’s appeal to the Commissioner to the corrections executive instead. The corrections executive denied the appeal. There is no evid ence or allegation , however, that either the grievance coordinator or the corrections executive clarified the procedural status of the a ppeal at any point or told Mr. Ladd that he still needed to appeal to the Commissioner if he wanted to pursue his grieva nce further. Mr. Ladd then filed this case. Mr. Ladd now argues that the grievance policy is confusing and his reasonable, good faith efforts at complying with it should be sufficient to satisfy his obligation to exhaust administrative remedies. See Wil liams v. Correction Officer Priatno , No. 14

- 4777, 2016 WL 3729383, at *7 (2d Cir. July 12, 2016) (concluding that administrative remedies were sufficiently exhausted where procedures were too “ opaque and confusing ” to be followed properly). Typically, t he Court would find itself without subject matter jurisdiction in a case like this, where the inmate has not properly exhaust ed his administrative remedies

. Indeed, t he Court d oes not find the DOC’s grievance policy confusing , as a general matter

. But, in this particular instance, t he grievance coordinator introduced unnecessary confusion by rerouting the appeal to the Commissioner to the corrections executive without any explanation to Mr. Ladd from either the5

grievance coordinator or the corrections execu tive that a second appeal to the Commissioner still would be required to properly exhaust. In these unique circumstances, the Court concludes that Mr. Ladd exhausted his administrative remedies and that it does not lack subject matter jurisdiction.
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. Th e Small Claims Judgment The small claims judgment has no binding effect on this case because, as a general matter, small claims judgments have no estoppel or preclusive effect on subsequent litigation. See Cold Springs Farm Development, Inc. v. Ball , 163 Vt.
466 , 470

– 72 (1995)

. As explained in Cold Springs Farm , a small claims judgment finally resolves the specific damages claim advanced in the small claims case only

. Id . at 472

– 73. But, it otherwise does not bar the relitigation of any issue determined in the course of arriving at that judgment in future litigation. Id . at 469

– 72. This is due largely to the informality of small claims. Id

. The federal District Court for District of Vermont has suggested that Cold Springs st ands for the proposition that small claims court judgments are entitled to res judicata effect as to the precise matters litigated but not collateral estoppel effect. Burke v. Dep’t of Corrections , No. 5:14

– cv
– 00272, 2015 WL 1954268, at *3 ( D. Vt. April 2 9, 2015) . As a general matter, thi s Court agrees and, as a leading treatise has noted in an analogous context, a small claims judgment will “ preclude any further litigation on the actual c laim presented but ... [will not] preclude further litigation on any of the issues presented .” 18A Charles Wright, Arthur6

Miller and Edward Cooper, Fed. Prac. & Proc. Juris . § 4443 (2d ed.) (citing United States v. Int’l Bldg. Co

. , 345 U.S. 502 505

– 06 (1953))

. Here , Mr. Ladd is seeking damages for photocopy expenses that were not at issue in his former small claims case. Accordingly, that small claims judgment has no impact on this case

. 2 Incidentally, the small claims court initially ruled in the DOC’s favor. On appeal, t he civil division interprete d the small claims decision narrowly as having relied exclusively on t wo statutes as specific authori ty for photocopy charges. It reversed and remanded because it did not appear to the Court that those two statutes authorized the charges actually at issue and because additional findings were needed regarding DOC directives , Mr. Ladd’s prison
accounts , and his possible indigence . But, the Superior Court did not make any final ruling on the larger question of the DOC’s authority to charge for photocopies. On remand, the small claims court, limited by the narrow mandate and the facts, award ed judgment to Mr. Ladd. The State never sought review of the s mall claims court’s second judgment. 3 As a result , the only final judgment with regard to

2 Similarly, small claims courts are not empowered to awar d injunctive relief, Vt. R. Sm. Cl. P. 2(a); and the judgment at issue in the earlier case did not purport to include equitable relief. The DOC was not bound to conform its subsequent conduct to that judgment, and that prior ruling does not control the le gal issue in this case.

3 At the time, Mr. Ladd was housed out of state in a privately operated facility. The small claims case was defended by private counsel for that facility, not by the Office of the Vermont A ttorney Ge neral.7

the photocopy charge issue is the second ruling from the small claims court, which is not entitled to preclusive effect.
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. Authority for Photocopy Charges

— Directive #38 5 .01 § 4.3.2.1.11 The DOC charges inmates a nominal amount for photocopies unless the inmate is indigent. See Directive s #38 5 .01 § 4.3.2.1.11 (photocopies), # 321.01 , Definitions (defining indigency). Directive #38 5 .01 § 4.3.2.1.11 applies by its terms to photocopies “of inmate court filings pertaining to state or fe deral post conviction remedies and civil rights actions involving conditions of confinement.” Essentially, if the inmate has less than $10 in his accessible inmate accounts for thirty days in a row, he is indigent and photocopy c harges are not assessed. If he is not indigent, the charges are assessed. See generally Affidavit of Kathy Corriveau (filed Nov. 30, 2015). No inmates are denied photocopies due to an inability to pay. Here, as in the initial small claims case, the only authority Mr. Ladd cite s for his argument that photocopy charges are unlawful unless the legislature specifically says otherwise is Smith v. Florida Dept. of Corrections , 920 So.2d 638 ( Fla. Dist. Ct. App. 2005) . The Smith Court specifically recognized that numerous court s have recognized that there is no right to “ the provision of free and unlimited photocopies to inmates for the purposes of litigation .” Id . at 639. B ased on Florida

- specific statutes and case law , however, it ruled that the Florida corrections department could not charge for photocopies without express, specific legislative authority to do so, which did not exist. Id . at 640

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The Smith ruling is peculiar to Florida. The Court has been directed to no court from another state that has followed Smith w ith regard to this issue. Indeed, courts have concluded that the rationale in Smith was based on Florida

- specific law. See Olmos v. Ryan , No. CV 10

- 2564

- PHX

- GMS, 2013 WL 4602517, at *5

– 6 (D. Ariz. Aug. 29, 2013) ( Smith is irrelevant to whether Arizona pr isoners may be charged for copies ) ; Searcy v. Idaho State Bd. of Correction , No. 41216, 2015 WL 160361, at *10 (Ida ho Ct. App. Jan. 14, 2015), aff’ d 2016 WL 3977207 (Idaho July 22, 2016) ( similar and also noting that charging such fees does not require for mal administrative rulemaking). As the Idaho Supreme Court recently noted , “courts have recognized that prison administrators are extended deference when imposing fees that have not been specifically authorized by statute.” Searcy , 2016 WL 3977207, at *5. Doing so is generally within the broad scope of a corrections department’s authority to manage its facilities and the inmates in them. Id . at *7

– 8 ; accord Olmos 2013 WL 4602517, at *5

– 6. The Vermont DOC also has been granted such expansive authorit y. See generally 28 V.S.A. §§ 101 , 102(b); Parker v. Gorczyk , 170 Vt. 263, 278 (1999) ( citing Wolff v. McDonnell , 418 U.S. 539, 566 (1974) for the proposition “ that broad discretionary authority of prison officials is necessary for them to undertake [the] extraordinarily difficult task of administering prison ”); Conway v. Cumming , 161 Vt. 113, 115 (1993) (noting “the necessarily broad discretionary authority of prison9

officials over prison administration”). The DOC has exercised that authority in
enact ing Directive #38 5 .01 § 4.3.2.1.11

. To the extent that the photocopies at issue in this case fall within the scope of Directive #38 5 .01 § 4.3.2.1.11 , the Court concludes that the modest photocopy charges at issue here , and the manner by which they are implemented, are generally within the DOC’s broad authority over prison administration. If there

were some other legal basis for not imposing them in this case , such as his indigence, it was Mr. Ladd’s burden to come forward with it . He has not done so. The DOC is entitled to summary judgment insofar as the photocopying charges in this case fall within Directive #38 5 .01 § 4.3.2.1.11

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. Other A uthority for Photocopy Charges It is unclear whether this case may involve charges for photocopies falling
out side the scope of Directive #38 5 .01 § 4.3.2.1.11 . Directive #38 5 .01 § 4.3.2.1.12 , for instance, appears to more broadly require that “[i]nmates will have access to photocopying services,” but does not include any provisions instituting charges or referrin g to the charges in the previous section. Nor does the record include any clear evidence that the DOC as a matter of policy generally permits photocopying and imposes charges in the manner described by Ms. Corriveau. On this limited record, then, the Court is unable to rule out the possibility that the DOC has imposed photocopying charges on Mr. Ladd arbitrarily , in violation of its policies and directives. T o the extent that the photocopying charges in this case may fall10

outside the scope of Direc tive #38 5 .01 § 4.3.2.1.11 , summary judgment is denied at this time. While the Defendant also raises various immunity defenses, without defining the underlying facts in the preceding paragraph, the Court cannot make a present assessment of those defenses

— with two exceptions. Plaintiff’s state d claims against Defendant in his individual capacity fail as a matter of law based on absolute immunity, see Curran v. Marcille , 152 Vt. 247, 249 (1989); and his federal claims for monetary damages against Defendant in his official capacity are barred because such claims are construed as being against the State, which is not a “person” amenable to suit under 42 U.S.C. § 1983, see Bock v. Gold , 2008 VT 81, ¶ 9, 184 Vt.
575 , 577 (mem.) (citing Kentucky v. Graham , 473 U .S. 159, 166 (1985)). Order For the foregoing reasons, Mr. Ladd’s summary judgment motion is denie d , in part ; and the State’s is granted in part and denied , in part

. Dated this __ day of August 2016, at Montpelier, Vermont.

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______________ Timothy B. Tomasi, Superior Court Judge