Ladd v. Pallito, No. 294-5-15 Wncv (Tomasi, J., Aug 25, 2016).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text 

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VERMONT SUPERIOR COURT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 294-5-15 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 

photocopies 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 charges could only be lawful if the Legislature 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 Legislature 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 

complaint, 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 Ladd has withdrawn that claim. 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 small 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. Ladd now argues that, because the 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 amount 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 doctrines. In the Court’s view, however, 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 courts or his ability to 

access photocopy services while in jail. There 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 genuine 
3

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 showing 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. There 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 the Commissioner. He asserts that he was unable to identify 

the correct corrections executive, or whether one existed, and so proceeded directly 
4

to appeal to the Commissioner. He so noted his confusion in the appeal to the 

Commissioner. 

The DOC grievance 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 evidence or allegation, however, that either the 

grievance coordinator or the corrections executive clarified the procedural status of 

the appeal at any point or told Mr. Ladd that he still needed to appeal to the 

Commissioner if he wanted to pursue his grievance 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 Williams 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, the Court would find itself without subject matter jurisdiction in a 

case like this, where the inmate has not properly exhausted his administrative 

remedies. Indeed, the Court does not find the DOC’s grievance policy confusing, as 

a general matter. But, in this particular instance, the grievance coordinator 

introduced unnecessary confusion by rerouting the appeal to the Commissioner to 

the corrections executive without any explanation to Mr. Ladd from either the 
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grievance coordinator or the corrections executive 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.

3. The 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 stands 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 29, 2015). As a general matter, this 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 claim presented but ... [will not] preclude 

further litigation on any of the issues presented.” 18A Charles Wright, Arthur 
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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, the civil division interpreted the small claims decision 

narrowly as having relied exclusively on two statutes as specific authority 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, awarded judgment to Mr. Ladd. The State never sought review of the small 

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 award 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 legal 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 Attorney General.
7

the photocopy charge issue is the second ruling from the small claims court, which 

is not entitled to preclusive effect. 

4. Authority for Photocopy Charges—Directive #385.01 § 4.3.2.1.11

The DOC charges inmates a nominal amount for photocopies unless the 

inmate is indigent. See Directives #385.01 § 4.3.2.1.11 (photocopies), #321.01, 

Definitions (defining indigency). Directive #385.01 § 4.3.2.1.11 applies by its terms 

to photocopies “of inmate court filings pertaining to state or federal 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 charges 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 cites 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 courts 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. Based 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 640–43.
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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 with 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 prisoners may be charged for 

copies); Searcy v. Idaho State Bd. of Correction, No. 41216, 2015 WL 160361, at *10 

(Idaho 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 formal 

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 authority. 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 prison 
9

officials over prison administration”). The DOC has exercised that authority in 

enacting Directive #385.01 § 4.3.2.1.11.

To the extent that the photocopies at issue in this case fall within the scope of 

Directive #385.01 § 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 #385.01 § 4.3.2.1.11.

5. Other Authority for Photocopy Charges

It is unclear whether this case may involve charges for photocopies falling 

outside the scope of Directive #385.01 § 4.3.2.1.11. Directive #385.01 § 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 

referring 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. To the extent that the photocopying charges in this case may fall 
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outside the scope of Directive #385.01 § 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 stated 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 denied,

in part; and the State’s is granted in part and denied, in part.

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

_____________________________

Timothy B. Tomasi,

Superior Court Judge