Pecor v. Menard, No. 202-3-17 Wncv (Teachout, J., Dec. 8, 2017). 

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

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 202-3-17 Wncv

DAVID PECOR

Plaintiff

v.

LISA MENARD, Commissioner,

Vermont Dep’t of Corrections

Defendant

DECISION

Cross-Motions for Summary Judgment

Defendant the Vermont Department of Corrections disciplined Plaintiff–Inmate David 

Pecor for attempting to introduce drugs into prison through two visitors. Mr. Pecor seeks Rule 

75 review of that determination, arguing that the evidence is insufficient to show that he had any 

foreknowledge of or involvement in any such scheme. The parties have filed cross-motions for 

summary judgment.

The basic narrative is undisputed. On January 21, 2017, a correction officer found a 

“slug” of drugs on the walkway near the prison toward the public parking lot. It was presumed 

that a recent visitor had dropped it accidentally. The most recent visitors were identified as two 

women who had come to see Mr. Pecor and were still at the facility. When they left, they 

walked around the walkway and parking lot obviously looking for something on the ground and 

in their car. Mr. Pecor later spoke with one of the visitors on the phone. The two spoke about 

the “key” getting lost and whether it had been found. It had not.

Based on those facts, Mr. Pecor was alleged to have attempted to introduce drugs into the 

facility. After a hearing, he was found guilty. The finding essentially required two factual 

inferences: that the two women possessed and then dropped the slug, and that the drugs were 

intended for Mr. Pecor and he was in on the plot.

In Vermont, due process requires the DOC to prove a disciplinary infraction by a 

preponderance of the evidence at the disciplinary hearing. LaFaso v. Patrissi, 161 Vt. 46, 51

(1993). On review, the court will uphold the DOC’s determination if “there is any evidence in 

the record to support the conclusion reached by the disciplinary board.” Superintendent v. Hill, 

472 U.S. 445, 455–56 (1985); Lafaso, 161 Vt. at 49 (prison determination “must be upheld if it is 

supported by ‘some evidence’ in the record” (citation omitted)). “Requiring a modicum of 

evidence to support a decision . . . will help to prevent arbitrary deprivations without threatening 

institutional interests or imposing undue administrative burdens.” Hill, 472 U.S. at 455.

Mr. Pecor effectively concedes that the evidence was sufficient to support the inference 
2

that his visitors possessed the slug and then dropped it in the walkway. He argues, however, that 

there is no evidence from which one could infer that he was in on any plot to introduce the drugs 

into the facility. He argues that the phone conversation about the “key”—even if “key” is 

understood to be code for drugs—could only show awareness that the women had attempted to 

introduce the drugs after the fact. It could not, he argues, show that he knew anything about the 

attempt before the fact.

The court is not persuaded. The transcript of the phone conversation provides adequate 

evidence from which one could infer that Mr. Pecor was speaking in “code” about a plot to 

introduce drugs into the facility and how it went wrong. It was reasonable in these 

circumstances to infer that the visitors were bringing the drugs to Mr. Pecor and he knew it. The 

“some evidence” standard does not require more.

ORDER

For the foregoing reasons, Mr. Pecor’s motion for summary judgment is denied and the 

State’s is granted.

Dated at Montpelier, Vermont this ____ day of December 2017.

_____________________________

Mary Miles Teachout,

Superior Judge