Note: Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2015

- 3 83

NOVEM BER TERM, 20 1 6

Douglas S. Cavett } APPEALED FROM: } } Superior Court, Chittenden Unit

,

v. } Civil Divisio n } } Andrew Pallito, et al. } DOCKET NO. 1092

- 10

- 13 Cncv

Trial Judge: Helen M. Toor

In the above

- entitled cause, the Clerk will enter:

Plaintiff, an inmate in the custody of the Department of Corrections (DOC)

, filed this petition under Vermont Rule of Civil Procedure 75 seeking review of a disciplinary report conviction issued by DOC

. Following a trial, t he superior court upheld the conviction . On appeal, plaintiff argues that there wa s insufficient evidence to support the violation. We affirm.

Plaintiff was issued a disciplinary violation for assaulting a DOC officer based on an allegation that he threw a ball of crumpled paper that hit DOC Officer Seavey

. At a disciplinary hearing, the hearing officer watched a video of the incident and took testimony from DOC O fficer
Dunn, who had witnessed the incident. The hearing officer concluded that plaintiff was guilty of a “Major A” infraction for assault of a DOC employee.

Plaintiff filed for review in superior court. The court held a merits hearing and heard testimony from DOC Officers Dunn, Seavey, and Hebert, 1 the DOC hearing officer , and plaintiff. In addition, a video of the incident that had been shown a t the disciplinary hearing was admitted

and shown to the court

. Officer Dunn testified that he observed plaintiff throw the crumpled paper at Officer Seavey and that it hit her. O fficer Seavey testified that she did not think plaintiff

intended to hit he r, but that the paper was thrown in her direction and hit her in the face

. Plaintiff initially claimed the incident never happened. He then admitted that he threw the paper but stated that he did not throw the paper at Officer Seavey and that he was attempting to throw the paper into a box of recycling

. Officer Seavey testified there was no such box in that area

.

The court issued written findings. The court found that the video depicts plaintiff balling up a sheet of paper and throwing it directly at Officer Seavey, who is sitting a few feet across from plaintiff behind a desk. The court also found that in the video Officer Seavey ducks in an attempt to avoid the wad of paper and that the angle and the quality of the video make it impossible to

de termine whether the paper ma kes contact with Officer Seavey

. The court did not find plaintiff’s

1 The audio recording of the disciplinary review hearing was lost. The trial court found that it was not intentionally destroyed. Officer Hebert testified concerning the process for preserving audio recording s from disciplinary violation hearing s

.2

version of the events credible . The court noted that plaintiff appeared angry in the video, that no recycling box was apparent in the video

, and that plaintif f appeared to throw the paper at Officer Seavey . The court found based on the testimony of DOC Officers Dunn and Seavey that the paper

hit Officer Seavey

. The court concluded that plaintiff’s action satisfied the DOC definition of

assault on a correction s employee and upheld the disciplinary violation. Plaintiff appeals.

“On judicial review of the sufficiency of evidence at a prison disciplinary hearing, the hearing officer’s final determination must be upheld if it is supported by some evidence in the

r ecord.” Herring v. Gorczyk , 173 Vt. 240, 243 (2001) (quotation omitted). To determine if there is “some evidence,” the court must look at whether there is “any evidence in the record that could support the conclusion reached by the disciplinary board.” Id . (quotation omitted). Rule 75 proceedings are in the nature of certiorari and therefore the superior court is limited to reviewing whether the findings below met the standard. Id

. at 248 (“ Because V.R.C.P. 75 proceedings are

in the nature of certiorar i the parties cannot expand the findings on review. ”).

On appeal, plaintiff ’s main argument is that the paper did not make contact with the DOC

officer and the video of the event provides definitive evidence this fact

. We emphasize that the

critical que stion is whether there was some evidence in the record to support the disciplinary hearing officer ’s decision . Insofar as the superior court’s review was in the nature of certiorari, the trial court and this Court must give deference to the hearing office r’s determination of the facts.

Id . at 243 (explaining that hearing officer’s determination will be upheld if supported by some evidence). We recognize that in this case the record from the DOC was limited. Due to a technical problem, the recording of t he disciplinary hearing was not available. Although Rule 75 review in the superior court is generally on the record from the administrative agency, the court also has discretion to gather additional evidence. Garbitelli v. Town of Brookfield , 2011 VT 122 , ¶ 8, 191 Vt. 76. In particular, “evidence may be admitted to establish facts necessary for the trial court’s review” when “a transcript from the administrative proceeding is unavailable or incomplete.” Id

. Here, given that the court lacked a recording or transcript from the administrative proceeding, it was appropriate for the court to hear testimony concerning what evidence had been submitted

below. Based on a review of the video and upon hearing testimony from Officer Dunn, t he court

found that ther e were sufficient facts to show that the DOC officer was hit by the paper

. This Court has viewed the video evidence that was submitted at the disciplinary hearing. 2 When evidence submitted at trial includes a video this Court will view the video, but thi s Court continues to review findings of fact under a clearly erroneous standard. See In re M.K. , 2015 VT 8, ¶ 15 n.*,

198 Vt. 233. There is nothing in the video that demonstrates that the hearing officer committed

clear error in finding that the paper hi t DOC Officer Seavey

.

Plaintiff also raises issues concerning what he sees as incon sistencies in witness testimony and claims that testimony was fabricated as part of a conspiracy against him. Essentially, plaintiff

seeks to have this Court reevaluate t he evidence. That is not the role of this Court on appeal. See

State v. Woolbert , 2007 VT 26, ¶ 9 , 181 Vt. 619 (mem.) (explaining that this Court’s duty on appeal is to ensure court’s findings are support ed by evidence not to decide whom to believe). The

trial court heard testimony from the individuals involved in the incident and found that there was no evidence to support plaintiff’s claims that the disciplinary violation was the result of a

2 On appeal, plaintiff has submitted photographs of still frames from the video in support of his argument. Consistent with this Court’s prior rulings, those additional items, which were not admitted in the disciplinary hearing, have not been reviewed on appea l because the record on appeal is limited to “the original documents, data, and exhibits” filed in the trial court. V.R.A.P. 10(a)(1); see Deutsche Bank v. Pinette , 2016 VT 71, ¶ 15.3

conspiracy against him or was being used to retaliate aga inst him

, and we conclude that those findings are not clearly erroneous. In addition, we emphasize that the trial court’s review of the disciplinary violation itself is very deferential, requiring only “some evidence” to support the violation, which we ha ve explained “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. ” LaFaso v. Patrissi , 161 Vt. 46, 50 (1993) (quotation omitted)

. Here, that standard was satisfied.

Plain tiff also asserts that the court erred both in denying his motion to continue the hearing

and in allowing Officer Seavey to present testimony over the telephone

. Plaintiff claims that there had been a prior stipulation to have Officer Seavey appear in per son and that the court erred in not requiring this

. C iting the long time the case had been pending and the difficulty in rescheduling it, the court denied the motion to continue. The trial court has discretion in ruling on a motion to

continue and this C ourt will reverse only where “ the discretion is exercised upon grounds clearly untenable, or to an extent clearly unreasonable. ” In re Woodstock Cmty. Trust & Hous. Vermont

PRD , 2012 VT 87, ¶ 36, 192 Vt. 474 (quotation omitted). Here, the court did not a buse its discretion in denying the motion to continue given the length of time the matter had been pending

.

Furthermore, we need not reach the question of whether it was error to allow Officer Seavey to testify by telephone because, as set forth above, this Rule 75 proceeding was in the

nature of certiorari and the trial court’s review was limited to reviewing whether the evidence submitted at the disciplinary hearing supported the decision

. Herring , 173 Vt. at 248 (“ Becaus e V.R.C.P. 75 proceedings are in the nature of certiorari the parties cannot expand the findings on

review. ”). Because Officer Seavey did not testify at the disciplinary hearing, the court could not expand the record in the superior court to include her t estimony

. A s explained above, the evidence submitted at the disciplinary hearing

— including the testimony of Officer Dunn and the video of

the incident

— was sufficient to satisfy the “some evidence” standard and provide s grounds to

affirm the disciplinary v iolation.

Affirmed

.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justic e

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Harold E. Eaton, Jr., Associate Justice