VermontSuperiorConrtBFedWashingt9541302nit3

### VERMONTSUPERIORWashingtonUnit65StateStreetMontpelier

### VT05602802-828-2091www.verm0ntjudiciary.orgOpinionandOrderonthe

### State’sMotionto

### Dismiss

### CIVILDIVISIONCaseN0.20—1—20WncvK?Efi

### Petitioner

### BrianButler,Vermontprisoner

### residing

### in

### privatelyoperatedout-of-state

### facility,seeks

### Rule75(mandamus)

### reviewofhow

### statutory“inmaterecreation”fundsare

### beingspent

### inhisfacility.1

### Heasserts

### thattheyaregoingtopurposesnot

### permittedby28

### V.S.A.816and

### inconsistent

### with

### DOCpolicies?See

### DOCPolicies308,308.01,and308.02.

### Followingthe

### filingof

### Mr.

### Butler’scomplaint,35pro-seprisoners

### (Intervenors)

### individuallyfiled

### nearlyidenticalmotions

### askingto

### “join”

### this

### lawsuitas

### plaintiffspursuantto

### Rule20

### (permissive

### joinder)andto

### certifythecaseas

### classactionunder

### Rule23.Noneofthesemotions

### includedproposed

### pleadingorproffered

### anyreason

### thatinterventionwouldachieve

### anythingother

### thandelayandprejudicetothe

### originalparties.

### Surprisingly,however,

### neitherthe

### Statenor

### Mr.Mr.

### Butlerclarifies

### inhis

### dismissal

### briefing

### thattheasserted

### basisfor

### Rule75

### reliefismandamus.

### TheCourtthusdisregardsthe

### State’sargumentsasto

### prohibitionand

### certiorari.

### Thealleged

### violationsof816arenotpleaded

### withanyspecificity;

### itisunclear

### whatthepurportedViolations

### actuallyare.

### Mr.

### Butlerfiled

### hiscomplaintprose.Nowrepresented,

### hiscounselhasnotamendedthe

### complaintto

### clarifyit.Norhasthe

### Statesought

### anymoredefinitestatement.BrianButlervs.JudyHenkin2

Butler objected to these motions

, t h o u g h they did not i n d i c a t e their a s s e n t e i t h e r

.

In a series of entries, the C ourt 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 man damus 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 Intervenors 3 and Exhaustion

A party must exhaust all available administrative remedies before seeking

relie f 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 sough t joinder u n der

Rule 20

, as opposed to intervention under R u le 24. S ee 7C Wright & Miller, Fed

. Prac

. & Proc

. : Civ il 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 ”). G ive n the Court ’s ruling as to

exhausti on, however , it need not resolve that procedur al qu estion.3

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 app ropriate. 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 remedi es.

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 ha ve been denied

.

Further

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

representation to the class. See F ed

. R. C iv

. P. 23(c)(1)(B) , (g) ( expressly requ iring

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

corresponding Vermont rule, V t

. R. C iv

. P. 23, the underlying principle is the same:

a non

- attorney generally may not represent other person s in court li tigation

. 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, 2022.4

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 exhau stion 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 broadl y 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 C ourt lacks the power to act on the type of claim

presented in this case. Either way, the Court concludes tha t th e argument fail s in

this instance.

The Vermont Supreme Court has described the familiar standard for Rule

12(b)(6) motions to dis miss 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

de veloped 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’s5

factual allegations as true, “‘it appears beyon d 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 explici tly, 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 p etitioner 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

.6

Section 816 provides as follows:

The Department shall accept monies generated by commissions on telephone services, commissary sales, a nd 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 con sistent 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 t o 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 inca rceration.

The statute affor ds the DOC a mple discretion. Nonetheless, it also uses the

term shall three time s , and shall usually connotes a nondiscretionary duty.

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

, the

Legislatu re may have intended to cab i n the DOC ’ s d iscre tion to spend those funds

in the ways set out in the statu te. It is

, thus

, possible that there is a

nondiscretionary, ministerial component to the D OCs duties under th e statute. No

more is need ed for the Court to concl ude that the Com plaint passes muster at the

thr eshold.

To the extent that the State argue s 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 such7

an issue relates to the type relief av aila ble in the event the claim succeeds, not

whether Mr. Butler has stated a claim in the f irst 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