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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 396-9-19 Wnsc

Brian Butler,

Plaintiff

v.

VT DOC,

Defendant

Opinion and Order on Defendant’s Motion to Dismiss

Plaintiff is a prisoner under the custody of the Department of Corrections 

(DOC). He brings this action asserting the Defendant DOC is liable to him for loss 

or damage to his personal property. He maintains that the injury occurred in 

connection with Defendant’s decision to move him to an out-of-state facility. In 

response, the Defendant has moved to dismiss based on sovereign immunity. 

Plaintiff has opposed the motion. The Court makes the following determinations.

1. Defendant May File the Motion

Under V.R.S.C.P. 4, there is only a limited ability to file motions. One 

possible motion is a motion to dismiss based on lack of subject matter jurisdiction. 

At least as regards common-law torts, the Court concludes that a claim of sovereign 

immunity is properly a matter of jurisdiction. First, the Vermont Supreme Court 

has held that the Vermont Tort Claims Act (VTCA) acts as a waiver of the State’s 

sovereign immunity and has indicated that such a waiver is a prerequisite to this 
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Court’s jurisdiction over such claims. City of S. Burlington v. Dep’t of Corr., 171 Vt. 

587, 590 (2000) (requiring preservation “of jurisdictional issues such as sovereign 

immunity”); Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 485 (1993) (VTCA waiver 

is similar to “jurisdictional provision” of the Federal Tort Claims Act (FTCA)); but 

cf. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ, 466 F.3d 232, 237–39 (2d 

Cir. 2006) (discussing whether Eleventh Amendment immunity is jurisdictional). 

As to the FTCA, upon which the VTCA is based, Denis Bail Bonds, Inc., 159 

Vt. at 485, federal law is clear that establishing a valid waiver of sovereign 

immunity is needed to establish subject matter jurisdiction. See, e.g., King v. 

United States, 917 F.3d 409, 418 (6th Cir. 2019) (“Sovereign immunity is 

jurisdictional in nature.”).

Indeed, such a result makes sense. Immunity provides a protection against 

being haled into court. As with qualified immunity, sovereign immunity “is an 

immunity from suit rather than a mere defense to liability.” Billado v. Appel, 165 

Vt. 482, 498 (1996). If the sovereign is not allowed to raise immunity at the outset 

of a case, that protection is lost or, at least, diminished. See Phoenix Consulting, 

Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000) (Sovereign immunity is 

“an immunity from trial and the attendant burdens of litigation . . . . [And] the 

court must [determine] its own jurisdiction as early in the litigation as possible.” 

(internal quotations omitted)). 

Accordingly, Defendants may raise sovereign immunity under V.R.S.C.P. 4. 

II. Sovereign Immunity: The Proper Defendant
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Under the VTCA, the State has waived sovereign immunity and allowed 

itself to be sued for the torts allegedly committed by its employees. See 12 V.S.A. §§ 

5601–06. Per the VTCA, however, the proper defendant in such an action is the 

State itself, not its subdivisions or state employees. 

The DOC is not a proper party in an action under the VTCA. The language of 

the statute specifically notes that claims may be made against “the State.” Id. 

§ 5601. See id. § 5603 (VTCA’s exclusive right of action is against “the State”). 

Further, as noted above, the VTCA is “modeled” after the FTCA, Andrew v. State, 

165 Vt. 252, 258 (1996), and Vermont often finds instructive decisions interpreting 

the VTCA’s federal counterpart, Lane v. State, 174 Vt. 219, 224 (2002). Numerous 

federal courts have concluded that federal agencies, in their own names, are not 

proper defendants under the FTCA. See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 476 

(1994) (“federal agency cannot be sued ‘in its own name’” if FTCA applies); Jackson 

v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008) (“only proper defendant in an FTCA 

action is the United States”); CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 

2008) (United States “is the only proper defendant in an FTCA case”); Clark Cty. 

Bancorporation v. United States Dep’t of Treasury, No. CV 13-632 (JEB), 2014 WL 

5140004, at *10 (D.D.C. Sept. 19, 2014) (“only the United States may be named as a 

defendant in an FTCA action”). The Court finds those decisions persuasive. 

Accordingly, the Court concludes that Plaintiff has named an improper 

defendant in this action. That defect, though technical, cannot be remedied by the 

Court. The Court lacks the authority to name a new defendant in this action. See 
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Myles v. U.S., 416 F.3d 551, 553 (7th Cir. 2005) (It is “unacceptable for a court to 

add litigants on its own motion.”).1 

III. Sovereign Immunity: Private Analog

The State argues that Plaintiff’s claims must also be dismissed because there 

is no “private analog” for his claims. As noted by the State, the VTCA is directed at 

“common law torts” and that governmental functions that have no counterpart in 

the non-governmental world do not fall within the VTCA’s wavier. Denis Bail 

Bonds, Inc., 159 Vt. at 498. The State argues that all of Plaintiff’s claims must be 

dismissed because they challenge the “decision making” that surrounded his 

transfer to an out-of-state institution and that he lacks standing because he has 

suffered no “injury.” The Court disagrees, at least in part. 

The Plaintiff’s complaint alleges that he had personal property, that 

Defendant had some responsibility for it, and that, through Defendant’s negligence, 

some portion of the property was lost or destroyed or delayed in arriving to Plaintiff. 

The Court cannot discern the full extent of the claim at this early stage, whether 

the issues were properly grieved, or whether they ultimately would satisfy the 

injury-in-fact needed to establish standing. But, at this early point, the allegations 

are sufficient to state a claim that meets the private analog requirement.2 

1 To the extent Plaintiff seeks to bring this action under the provisions of 32 V.S.A. § 

932, the result would be the same. That waiver of sovereign immunity also allows 

persons to bring claims against “the State.” Id. The Court believes Section 932 also 

requires a party to sue “the State” in order to fall within its waiver provisions.

2 Plaintiff’s opposition suggests that he may also be seeking to bring some type of 

constitutional action. The Court sees no basis for that assertion in the complaint, 

which purports to raise only a standard tort action for monetary relief.
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The Court agrees with the State, however, to the extent Plaintiff seeks to 

challenge the governmental decision to transfer him out of state and the process 

created for that transfer. If such matters are cognizable at all, it would be through 

an action under Vt. R. Civ. P. 75 in the Civil Division. Such a claim is beyond the 

limited and strictly financial jurisdiction of the Small Claims Court. That claim is 

dismissed.

Accordingly, other than the claim noted in the preceding paragraph, the 

Court concludes that Plaintiff’s claims may not be dismissed at the threshold. 

IV. Remedy

Since the Court has concluded that Plaintiff has named an improper 

defendant but that his claims are not otherwise futile or meritless, he should be 

allowed to amend his complaint to name the State. Further, while Plaintiff named 

the wrong party, the Court acknowledges both the near unanimity of interests 

between the current Defendant and the appearance of the Vermont Attorney 

General in this action. 

Accordingly, Plaintiff will be allowed to amend his complaint to name the 

correct party within 30 days. Further, he will be permitted to serve the amended 

complaint on the Attorney General through the mail under Vt. R. Civ. P. 5, rather 

than through Rule 4. 

WHEREFORE, Defendant’s motion to dismiss is granted, in part, and denied, 

in part. Plaintiff may amend the complaint within 30 days. 
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Electronically signed on February 18, 2020 at 03:09 PM pursuant to V.R.E.F. 

7(d).

________________________

Timothy B. Tomasi

Superior Court Judge