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

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2010-291 

JULY TERM, 2011 

Gordon E. Campbell, Jr. } APPEALED FROM: 

} 

 v. } Superior Court, Windsor Unit, 

} Civil Division 

} 

Ellen McWard, Brian Kearns, 

Lynn Roberto and Andrew A. Pallito 

} 

} 

DOCKET NO. 63-1-09 Wrcv 

 

 Trial Judge: Harold E. Eaton, Jr. 

In the above-entitled cause, the Clerk will enter: 

Plaintiff appeals pro se from the trial court’s order granting summary judgment to defendants on 

his civil rights complaint. We affirm. 

Plaintiff is an inmate in the custody and control of the Vermont Department of Corrections 

(DOC). He filed a civil rights complaint against defendants in January 2009 after he was assaulted by

another inmate. According to plaintiff, he warned defendants that this inmate had threatened him 

before, and defendants failed to keep plaintiff safe from harm. Defendants moved for summary 

judgment in March 2010. Plaintiff did not oppose the motion in the manner required by Vermont Rule 

of Civil Procedure 56(c). 

In a July 2010 decision, the court granted summary judgment to defendants, relying on 

defendants’ unchallenged statement of material facts. The court found as follows. Plaintiff was housed 

in a unit dedicated to sex offenders, and he would refer to other sex offenders in his unit in derogatory 

terms. This behavior created tense relationships with other inmates. Defendants Lynn Roberto, DOC 

Unit Supervisor, and Brian Kearns, plaintiff’s DOC Case Worker, had previously discussed this 

problematic behavior with plaintiff. While plaintiff indicated that he felt unsafe in his unit, he did not 

report any specific threat and had only vague feelings that other inmates were out to get him. In late 

December 2007, plaintiff called an inmate a derogatory name—a particular term that he had been 

warned against using around other inmates. The inmate rushed toward plaintiff to confront him. 

Warned by a corrections officer to stay away from plaintiff, the inmate nevertheless challenged plaintiff 

to repeat what he said. When plaintiff did not respond, the inmate punched plaintiff in the face, injuring 

him. According to the corrections officer, the whole exchange lasted approximately five seconds. 

In their motion for summary judgment, defendants averred that they had no knowledge that 

plaintiff might be assaulted by the inmate, nor had plaintiff warned them of this possibility. 

Additionally, they stated that plaintiff never complained about the prison’s security procedures prior to 

his assault. Defendants maintained that plaintiff failed to pursue and exhaust his administrative 

remedies as a precondition to suit. The court noted that plaintiff submitted a handwritten unnotarized 

letter to the court in response to the State’s motion. In the letter, plaintiff indicated that he had a copy of 

a letter that he wrote to the former DOC Commissioner complaining about events at the facility. He 
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stated that he would be sending the court copies of the paperwork that he possessed; he did not assert

that the DOC was preventing him from accessing his own legal materials. Plaintiff also stated that he

did not file a grievance because he was threatened with retaliation by DOC staff. 

The court found that plaintiff provided no documentary evidence to support either assertion. He 

provided no copy of the alleged letter to the court as evidence, nor did he file any admissible evidence, 

such as a personal affidavit, to substantiate his claim that he was threatened when he asked to file a

grievance. Without any admissible evidence to controvert defendants’ affidavit that no grievance was 

filed, or at least to explain plaintiff’s noncompliance with the grievance procedure, the court found no 

factual dispute precluding summary judgment. 

Based on these facts, the court concluded that defendants were entitled to summary judgment 

because plaintiff failed to exhaust his administrative remedies and he failed to show that defendants 

breached a duty that they owed to him. As the court explained, plaintiff was required by law to exhaust 

his administrative remedies prior to filing a claim under 42 U.S.C. § 1983. See id. § 1997e(a). 

Defendants submitted an affidavit from the DOC’s grievance coordinator that no grievance had been 

filed. Plaintiff provided no evidence to rebut this affidavit, nor did he even allege that he exhausted 

available administrative remedies. Given this, the court found that plaintiff’s suit was barred by 

§ 1997e(a). Even if plaintiff had exhausted his administrative remedies, the court continued, or had a 

valid excuse for failing to do so, defendants would still be entitled to summary judgment because 

plaintiff failed to show that defendants breached a duty owed to him. The court thus granted judgment

to defendants, and plaintiff appealed. 

We review a grant of summary judgment using the same standard as the trial court. Richart v. 

Jackson, 171 Vt. 94, 97 (2000). Summary judgment is appropriate “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the 

statements required by Rule 56(c)(2), show that there is no genuine issue as to an material fact and that 

any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). Material facts set forth in 

moving party’s statement of undisputed facts are deemed admitted unless controverted by nonmoving 

party’s statement of undisputed facts. V.R.C.P. 56(c)(2); see also Richart, 171 Vt. at 97 (same). 

“Summary judgment is mandated . . . where, after an adequate time for discovery, a party fails to make a 

showing sufficient to establish the existence of an element essential to his case and on which he has the 

burden of proof at trial.” Poplaski v. Lamphere, 152 Vt. 251, 254-55 (1989) (quotation omitted). For

the reasons set forth above, summary judgment was properly granted to defendants here. 

Plaintiff offers no compelling reason to support a contrary conclusion—he simply presents his 

version of the facts. He asserts, for example, that he warned DOC many times that he was in danger of

being assaulted. As the trial court found, however, he did not provide a sworn statement or any other

evidence to support this assertion. He similarly did not provide any evidence to controvert DOC’s 

assertion that plaintiff failed to file a grievance. While plaintiff states that he responded to defendants’ 

summary judgment motion, the record indicates that he filed an unnotarized letter with the court, and 

this document failed to satisfy the requirements of V.R.C.P. 56. It is well established that “[o]nce a 

claim is challenged by motion for summary judgment, accompanied by an affidavit or affidavits or other

documentary evidence sufficient to call into question the existence of the factual basis for the claim, the 

person advancing the claim may not rest upon his mere allegations, but must come forward with an 

opposing affidavit or other evidence that raises a dispute as to the fact or facts in issue.” Alpstetten 

Ass’n, Inc. v. Kelly, 137 Vt. 508, 514 (1979). Plaintiff failed to meet his burden here. 
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We are not persuaded to a contrary conclusion by plaintiff’s assertion that DOC staff took his 

legal work in an attempt to stop him from working on this case. Plaintiff does not identify any specific 

materials taken, claiming only that if he had the chance to send these materials to the trial court, the 

court would have reached a different result. The record shows that plaintiff filed a letter to the trial court 

on June 3, 2010, stating that DOC had taken his legal work, but this letter was sent two months after 

both the State’s motion for summary judgment and plaintiff’s handwritten response to the motion. 

Plaintiff’s vague assertion about missing materials does not show that the court erred in granting 

summary judgment. As referenced above, plaintiff informed the court in April 2010 that he would be 

sending additional materials to support his claim. He offers no reason why he did not do so for two 

months, or why he could not have filed a personal affidavit, for example, to support his version of the 

facts as part of his initial response to the State’s motion. Moreover, we note that the record indicates 

that as part of discovery, the court specifically allowed plaintiff to request copies of any record he felt 

showed prior knowledge of dangerous condition by DOC. Plaintiff had ample time to secure relevant 

materials and file them with the court. We find no basis to disturb the trial court’s decision. 

Affirmed. 

BY THE COURT: 

_______________________________________ 

John A. Dooley, Associate Justice 

_______________________________________ 

Marilyn S. Skoglund, Associate Justice 

_______________________________________ 

Brian L. Burgess, Associate Justice