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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2015-383

NOVEMBER TERM, 2016

Douglas S. Cavett } APPEALED FROM:

}

} Superior Court, Chittenden Unit,

 v. } Civil Division

}

}

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, the superior court upheld the conviction. On appeal, 

plaintiff argues that there was 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 Officer

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,1the DOC hearing officer, and plaintiff. 

In addition, a video of the incident that had been shown at 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. Officer Seavey testified that she did not think plaintiff 

intended to hit her, 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 

determine whether the paper makes 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 recordings from disciplinary violation hearings. 
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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 plaintiff 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 corrections 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 

record.” 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 certiorari 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 question 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 officer’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 the 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, the court 

found that there 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 this 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 hit DOC Officer Seavey. 

Plaintiff also raises issues concerning what he sees as inconsistencies in witness testimony 

and claims that testimony was fabricated as part of a conspiracy against him. Essentially, plaintiff 

seeks to have this Court reevaluate the 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 supported 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 appeal 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.
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conspiracy against him or was being used to retaliate against 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 have 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.

Plaintiff 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 person and that the court erred in not 

requiring this. Citing 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 Court 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 abuse 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 (“Because 

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 testimony. As 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 provides grounds to 

affirm the disciplinary violation.

Affirmed.

BY THE COURT:

_______________________________________

Paul L. Reiber, Chief Justice

_______________________________________

John A. Dooley, Associate Justice

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Harold E. Eaton, Jr., Associate Justice