Gay v. Menard, 605-10-16 Wncv (Teachout, J., Sept. 15, 2017)

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 605-10-16 Wncv

Jeffrey Gay

Petitioner

v.

Lisa Menard, Commissioner,

Vermont Department of Corrections

Respondent

DECISION

Mr. Gay’s Motion to Reconsider

The State’s Motion for Summary Judgment

Inmate Jeffrey Gay seeks Rule 75 review of a decision by the Vermont Department of 

Corrections to not furlough him for a two-year period because the “case staffing” at which that 

decision was made relied at least in part on “inaccurate” information: that he acted violently in 

the course of his recent furlough violation. The State has filed a motion for summary judgment. 

It asks the court to conclude that the furlough decision has a “permissible basis” regardless of 

any incorrect underlying facts that may have been relied upon. Mr. Gay asks the court to deny 

summary judgment and set the case for trial, at which he evidently intends to establish the 

inaccuracy of those underlying facts. Ultimately, he requests that the court remand for a new 

case staffing predicated on facts that are accurate.

Motion to reconsider

Previously, the record included no evidence or allegations showing that Mr. Gay 

exhausted his administrative remedies and preserved any issues he has sought to raise here. The 

court granted judgment to the State on that basis, but permitted Mr. Gay an opportunity to come 

forward with evidence of exhaustion and preservation. He did. The State does not assert any 

defect in exhaustion or preservation. Accordingly, the court rescinds its prior summary 

judgment decision and will address the substance of that motion now.

Motion for summary judgment

While on furlough, Mr. Gay was criminally charged with domestic assault (later pled 

down to disorderly conduct). He was reincarcerated and furlough revocation proceedings were 

initiated. The alleged bases for revocation were that: (1) he was charged with a new crime, (2) 

he engaged in violent behavior (the underlying conduct of the crime); and (3) he lost his 

residence in the community because Dismas House did not want him back. A police affidavit 

documented that Mr. Gay punched a man in the face, which broke his nose and chipped his 

tooth. His furlough was revoked. The hearing officer found him guilty of being charged with a 
2

new crime and losing his residence. The hearing officer also expressly found as follows “Not 

guilty of violent behavior. – No physical evidence of assault.” The findings also expressly 

indicate that the hearing officer considered the police affidavit. The recommendation sanction 

was a referral for a case staffing. The superintendent upheld the hearing officer’s decision and 

sanction recommendation.

The case staffing report described the crime underlying the furlough revocation as one of 

violence, reiterating the violent detail of the police affidavit that was rejected by the hearing 

officer and making recommendations due to, in part, Mr. Gay’s persistent resort to violence. The 

result of the case staffing was a decision that he should remain incarcerated for two years before 

potentially being placed back in the community (a so-called two-year interrupt).

In its summary judgment motion, the State does not attempt to defend or explain the 

propriety of the DOC first squarely finding, on evidence that included the police affidavit, that 

Mr. Gay did not engage in violence, and then turning around and relying on the rejected 

allegations of violence in determining his sanction. Instead, it argues that other evidence in the 

record would have supported the outcome of the two-year interrupt anyway and thus the court 

should not address the accuracy of some of the facts relied upon.

The State misconstrues the court’s function. The court is not reviewing the wisdom of 

the outcome of the case staffing or the adequacy of its basis, and it would not substitute its own

judgment for any determination by the DOC in any event. Mr. Gay does not ask it to. Nor is the 

court reviewing the accuracy of all the information gathered for and evaluated at the case 

staffing. The court instead is evaluating the arbitrariness of the DOC making specific findings of 

fact after an evidentiary hearing to determine that a furlough violation occurred and then

ignoring those same findings without any explanation when imposing a sanction.

If there is any reasonable explanation for what happened in this case, the State has not 

come forward with it. Mr. Gay is entitled to a new case staffing based on facts that accurately 

reflect the DOC’s hearing officer’s findings of fact, not the allegations that he rejected.

ORDER

For the foregoing reasons, Mr. Gay’s motion to reconsider is granted. The State’s 

motion for summary judgment is denied. Summary judgment instead is entered in favor of Mr. 

Gay. This case is remanded to the DOC for a new case staffing.

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

_____________________________

Mary Miles Teachout

Superior Judge