Lowe v. Menard, 396-7-18 Wncv (Teachout, J., Mar. 15, 2019)

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

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 396-7-18 Wncv

SCOTT LOWE

Plaintiff

v.

LISA MENARD, Commissioner,

Vermont Department of Corrections

Defendant

DECISION

The State’s Motion to Dismiss, filed November 28, 2018 (MPR #2)

Opposition filed January 28, 2019

Plaintiff–Inmate Scott Lowe alleges that the Vermont Department of Corrections has 

repeatedly assigned different case managers to him and each has given him conflicting and 

wrong information about when he may engage in programming and thus be on track for early 

release. In this case, he seeks an order prospectively requiring the DOC to “uphold its original 

recommendation of granting reintegration furlough for March 4, 2020, requiring the Department 

to provide a VTPSA Sex Offender treatment date of twelve (12) months prior to the original RF 

date of March 4, 2020.” Complaint at 12. The DOC has filed a motion to dismiss arguing that 

Mr. Lowe failed to seek review in a timely manner, failed to preserve the issues he seeks to raise 

here in his administrative grievance, seeks review of unreviewable issues, and otherwise any 

particular claims are not sufficiently alleged. 

Mr. Lowe’s decision appeal to the commissioner and the commissioner’s response are in 

the record. They show that Mr. Lowe’s grievance essentially consisted of an argument that the 

DOC should exercise its discretion to initiate his programming and put him on track for early 

release because his good behavior warrants it. The commissioner’s response, declining to award 

relief and relying on Mr. Lowe’s most recent case staffing, is dated May 4, 2018. His petition 

for review here was filed on July 9, 2018.

Mr. Lowe’s petition is out of time. Rule 75(c) requires a petition for review to be filed 

within 30 days of notice of the challenged act.1 The 30-day review period is not jurisdictional: it 

may be enlarged under Rule 6(b), waived by a defendant, or it may be subject to an estoppel, as 

was the case in Fyles v. Schmidt, 141 Vt. 419, 422 (1982). See V.R.C.P. 82 (“These rules shall 

not be construed to extend or limit the jurisdiction of the superior courts . . . or the venue of 

actions therein.”). There is no asserted basis for a waiver or estoppel in this case.

1 Mr. Lowe purported to seek Rule 74, rather than Rule 75, review. However, he has no identifiable statutory right 

to review enabling Rule 74 procedure. See V.R.C.P. 74(a). His right to review, if one exists at all, thus falls under 

Rule 75. See V.R.C.P. 75(a).
2

Under Rule 6(b)(1)(A), the court has broad discretion to enlarge the time for filing the 

petition when the request to do so occurs before the expiration of the time for filing. That did not 

happen in this case. When the request occurs later, Rule 6(b)(1)(B) limits the court’s discretion 

to situations in which “the failure to act was the result of excusable neglect.” The Vermont 

Supreme Court has explained that the “excusable neglect standard is a strict one.” State v. Felix, 

153 Vt. 170, 171 (1989). The heart of the analysis is “the reason for delay, including whether it 

was within the reasonable control of the movant.” In re Town of Killington, 2003 VT 87A, ¶ 16, 

176 Vt. 60. “Ignorance of the law or inattention to detail” usually is insufficient. In re Lund, 

2004 VT 55, ¶ 5, 177 Vt. 465 (mem.). There is no asserted excusable neglect in this case.

Even if Mr. Lowe had sought Rule 75 review in a timely manner, the only claim he 

would have preserved for review is his disagreement with the DOC’s discretion over his 

programming. The DOC’s decisions about Mr. Lowe’s programming are in its discretion and are 

unreviewable in this court. See Rheaume v. Pallito, 2011 VT 72, ¶ 11, 190 Vt. 245.

To the extent that Mr. Lowe is seeking to raise any other claims in this case, they were 

not preserved for review in an exhausted administrative grievance. See generally Pratt v. 

Pallito, 2017 VT 22, 204 Vt. 313 (distinguishing preservation from exhaustion and analyzing 

preservation in prisoner grievance case in depth). The purpose of the preservation requirement is 

to ensure that the agency has a fair chance to address an issue before it is presented to the judicial 

branch for further review. Id., 2017 VT 22, ¶ 16. “[T]o properly preserve an issue, a party must 

present the issue to the administrative agency ‘with specificity and clarity in a manner which 

gives the [agency] a fair opportunity to rule on it.’” Id. (citation omitted).

ORDER

For the foregoing reasons, the State’s motion to dismiss is granted.

Dated at Montpelier, Vermont this ____ day of March 2019.

_____________________________

Mary Miles Teachout

Superior Judge