Vermont Fed Superior ConrtB Washingt9541302nit3

VERMONT SUPERIOR Washington Unit 65 State Street Montpelier VT 05602 802-828-2091 www.verm0ntjudiciary.org

Opinion and Order on the State’s Motion to Dismiss

CIVIL DIVISION

Case N0. 20—1—20 Wncv K?

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Petitioner Brian Butler, Vermont prisoner residing in privately operated

out-of-state facility, seeks Rule 75 (mandamus) review of how statutory “inmate

recreation” funds are being spent

in his facility.1 He asserts that they are going to

purposes not permitted by 28 V.S.A. 816 and inconsistent with DOC policies? See

DOC Policies 308, 308.01, and 308.02.

Following the filing of Mr. Butler’s complaint, 35 pro-se prisoners

(Intervenors) individually filed nearly identical motions asking to “join” this lawsuit

as plaintiffs pursuantto Rule 20 (permissive joinder) and to certify the case as

class action under Rule 23. None of these motions included proposed pleading or

proffered any reason that intervention would achieve anything other than delay and

prejudice to the original parties. Surprisingly, however, neither the State nor Mr.

Mr. Butler clarifies in his dismissal briefing that the asserted basis for Rule 75

relief is mandamus. The Court thus disregards the State’s arguments as to prohibition and certiorari.

The alleged violations of 816 are not pleaded with any specificity; it is unclear what the purported Violations actually are. Mr. Butler filed his complaint pro se. Now represented, his counsel has not amended the complaint

to clarify it. Nor has

the State sought any more definite statement.

Brian Butler vs. Judy Henkin
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Butler objected to these motions, though they did not indicate their assent either. 

In a series of entries, the Court granted, in part, and denied, in part, each motion as 

follows: “The motions to join as parties are granted, and [specific intervenors] are 

hereby joined as plaintiffs. The motions for class-action certification are denied 

without prejudice.” Mr. Butler, represented by counsel, has never sought class 

certification.

The State then filed a Rule 12(b)(1) motion to dismiss for lack of subject 

matter jurisdiction. It argues that, as to the Intervenors (not Mr. Butler), none has 

made any allegation to the effect that they exhausted their administrative 

remedies. As to all parties, the State argues that mandamus review is unavailable 

in this case because Mr. Butler has not alleged that 28 V.S.A. § 816 applies to the 

out-of-state facility and, in any event, the DOC has discretion under § 816 as to how 

inmate recreation funds are spent. 

I Intervenors3 and Exhaustion

A party must exhaust all available administrative remedies before seeking 

relief in court. Pratt v. Pallito, 2017 VT 22, ¶ 12, 204 Vt. 313, 317 (“The exhaustion 

requirement bars a party from filing a case in the trial court before complying with 

all available administrative procedures.”). Unlike Mr. Butler, none of the 

3 The Court questions whether the Intervenors appropriately sought joinder under 

Rule 20, as opposed to intervention under Rule 24. See 7C Wright & Miller, Fed.

Prac. & Proc.: Civil 3d § 1901 (intervention is the “procedure by which an outsider 

with an interest in a lawsuit may come in as a party though the outsider has not 

been named as a party by the existing litigants”). Given the Court’s ruling as to 

exhaustion, however, it need not resolve that procedural question.
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Intervenors allege that they exhausted their administrative remedies. The State 

seeks dismissal as to them on this basis.

Some (25) of the 35 Intervenors have opposed dismissal.4 The opposition

filings take two forms, both generally asserting that “joinder” is appropriate. To the 

extent that any address exhaustion, the only discernible argument appears to be 

that they should be able to “borrow” Mr. Butler’s exhaustion for purposes of their 

own claims. None otherwise asserts that he exhausted administrative remedies.

Intervenors’ argument is based on the approach, followed by some courts, 

that would permit a party who did not exhaust to participate as a member of a 

certified class so long as one member did (the “vicarious exhaustion doctrine”). See, 

e.g., Mullinnex v. Menard, 2020 VT 23, ¶¶ 7, 10, 212 Vt. 432, 437–39.

There is no need to ponder the vicarious exhaustion doctrine in this case 

because Intervenors’ requests to certify this case as a class action have been denied. 

Further, all Intervenors all are pro se. They have no lawyer to provide legal 

representation to the class. See Fed. R. Civ. P. 23(c)(1)(B), (g) (expressly requiring 

the appointment of “class counsel”). While that requirement is not express in the 

corresponding Vermont rule, Vt. R. Civ. P. 23, the underlying principle is the same: 

a non-attorney generally may not represent other persons in court litigation. See

Vermont Agency of Nat. Res. v. Upper Valley Reg’l Landfill Corp., 159 Vt. 454, 455–

4 Intervenors’ opposition filings all were filed, evidently in a single batch, on 

September 19, 2022.
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56 (1992). While Mr. Butler is represented, he did not request class certification, 

and his counsel does not represent Intervenors.

The State has sought to dismiss all Intervenors for lack of exhaustion and, in 

response, none has indicated, much less attempted to show, that he exhausted 

administrative remedies. The State’s motion to dismiss is granted as to all 

Intervenors is granted on this basis.

II. Mandamus

The State argues that there can be no viable mandamus claim in this case 

because Mr. Butler has not alleged that 28 V.S.A. § 816 applies to his out-of-state 

facility; and, in any event, he could have no clear and certain right to relief because 

§ 816 broadly delegates discretion over inmate recreation funds to the DOC. While 

the State characterizes this dismissal argument as one of subject-matter 

jurisdiction, might be better characterized as asserting a failure to state a claim 

under Rule 12(b)(6) insofar as the State is arguing a deficiency in the asserted cause 

of action rather than that the Court lacks the power to act on the type of claim 

presented in this case. Either way, the Court concludes that the argument fails in 

this instance. 

The Vermont Supreme Court has described the familiar standard for Rule 

12(b)(6) motions to dismiss for failure to state a claim as follows:

“A motion to dismiss . . . is not favored and rarely granted.” This is 

especially true “when the asserted theory of liability is novel or 

extreme,” as such cases “should be explored in the light of facts as 

developed by the evidence, and, generally, not dismissed before trial 

because of the mere novelty of the allegations.” In reviewing a motion 

to dismiss, we consider whether, taking all of the nonmoving party’s 
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factual allegations as true, “‘it appears beyond doubt’ that there exist 

no facts or circumstances that would entitle the plaintiff to relief.” We 

treat all reasonable inferences from the complaint as true, and we 

assume that the movant’s contravening assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 316–17 (citations 

omitted).

The State’s contention that the complaint is deficient because Mr. Butler 

failed to allege that § 816 applies to the out-of-state facility is meritless for at least 

two obvious reasons. First, he did make that allegation. See Complaint at 2 

(referring to the relevant statute and policies and stating, “This applies to Inmates 

who are out of state as Well as Those who are in State.”). Second, even if did not 

state that explicitly, it is manifestly implicit.

Otherwise, the Court is satisfied that Mr. Butler’s claim is sufficiently alleged 

to survive Vermont’s liberal Rule 12(b)(6) standard. “A court can issue a writ of 

mandamus . . . only under certain circumstances: (1) the petitioner must have a 

clear and certain right to the action sought by the request for a writ; (2) the writ 

must be for the enforcement of ministerial duties, but not for review of the 

performance of official acts that involve the exercise of the official’s judgment or 

discretion; and (3) there must be no other adequate remedy at law.” Petition of 

Fairchild, 159 Vt. 125, 130 (1992). The State argues that § 816 is broadly 

discretionary and, therefore, is not an appropriate subject for mandamus review. 

The Court disagrees. 
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Section 816 provides as follows:

The Department shall accept monies generated by commissions on 

telephone services, commissary sales, and sales of approved items not 

available on commissary by the Department to inmates at its 

correctional facilities and shall establish with such monies an inmate 

recreation special fund. The fund shall be used to provide postage to 

inmates in a manner consistent with Department policy. The fund 

may be used for costs associated with the oversight and accounting of 

inmate cash accounts. The fund may be used, at the discretion of the 

Commissioner, to hire persons or purchase services, equipment, and 

goods to establish or enhance recreation activities for inmates confined 

in any of the Department’s facilities, and for voluntary inmate 

contributions that promote the restoration of crime victims or 

communities. The inmates, through a process established by the

inmate recreation fund committee, may also choose to create a loan 

fund, the operation of which shall be governed by rules adopted 

pursuant to 3 V.S.A. chapter 25, from which offenders may borrow in 

order to help them obtain housing upon release from incarceration.

The statute affords the DOC ample discretion. Nonetheless, it also uses the 

term shall three times, and shall usually connotes a nondiscretionary duty. 

Further, in listing several ways in which the DOC may spend the subject funds, the 

Legislature may have intended to cabin the DOC’s discretion to spend those funds 

in the ways set out in the statute. It is, thus, possible that there is a 

nondiscretionary, ministerial component to the DOCs duties under the statute. No 

more is needed for the Court to conclude that the Complaint passes muster at the 

threshold.

To the extent that the State argues that the form of relief specifically sought 

by Mr. Butler—court supervision of how the DOC properly spends the disputed 

funds—falls outside the scope of mandamus relief, the Court simply notes that such 
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an issue relates to the type relief available in the event the claim succeeds, not 

whether Mr. Butler has stated a claim in the first instance.

Conclusion

All Intervenors are dismissed from this case for failing to exhaust their 

administrative remedies. Mr. Butler is the sole remaining plaintiff, and mandamus

review is the sole remaining claim in this case.

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

and denied, in part.

Electronically signed on Wednesday, March 29, 2023, pursuant to V.R.E.F. 9(d).

 _______________________

Timothy B. Tomasi

Superior Court Judge