Note: Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2013

- 450

MARCH TERM, 20 1 4

Eejipp Ala } APPEALED FROM: } } Superior Court, Orleans Unit

,

v. } Civil Divisio n } }

Andrew Pallito , Commissioner of the Vermont Department of Corrections } } DOCKET NO. 106

- 4

- 13 Oscv

Trial Judge: Howard E. VanBenthuysen

In the above

- entitled cause, the Clerk will enter:

Plaintiff appeals pro se from the trial court’s order dismissing his complaint as moot. He argues that : the court should have held a hearing before dismissing his complaint; the court failed

to explicitly address his “amended complaint ” ; and the court should have granted judgment in his

favor. We affirm the court’s order.

Plaintif f is incarcerated. In April 2013, he filed a pro se complaint under Vermont Rule of Civil Procedure 75. Counsel was appointed for plaintiff, and counsel filed an amended complaint in May 2013. In his complaint, p laintiff sought review of the Department of Corrections’ decision to deny his release from prison on reintegration furlough . See 28 V.S.A. § 808c (describing reintegration furlough program) . The DOC had decided in March 2013 that plaintiff was not eligible for reintegration furlough . It based its decision on the fact that plaintiff had been convicted of a prohibited act

— a sex offense

— in 2005 and, pursuant to a 2008 DOC

interim memorandum, sex offenders were not eligible for reintegration furlough. Plaintiff alleged that the 2008 memorandum did not have the force of law, and that by rule and by statute, all inmates with a minimum sentence of at least 365 days were eligible for reintegration furlough. In June 2013, plaintiff moved for summary judgment in his favor.

Counsel for the DOC subsequent ly entered an appearance. In August 2013, the DOC

moved to dismiss plaintiff’s complaint as moot

. The DOC acknowledged that, according to its own rule, it could not deny reintegration furlough to plaintiff on the basis of the 2008 interim

memorandum. Se e Rule 16 “Granting Reintegration Furlough,” 4 Code of Vt. Rules 13 130 026

- 1 to 3

. The DOC stated that it had since reevaluated plaintiff’s eligibility for reintegration furlough under the criteria stated in the rule. It maintained that this reevaluation mooted plaintiff’s claim that the DOC improperly denied him reintegration furlough on the basis of the

interim memorandum.2

While the DOC’s motion to dismiss was pending, plaintiff, who was still represented by counsel, filed a pro se “ amen ded complaint” challenging the DOC’s reevaluation decision. He

asserted that the DOC denied his r equest on reevaluation because he was a violent offender, but

that the DOC had relea sed other violent offenders. Plaintiff maintained that the DOC was discriminating against him in violation of his equal protection rights. Plaintiff also asserted that

a caseworker told him that he would be released on reintegration furlough if he completed

“CSC” and that the denial of his request for reintegration furlough constituted a breach of

contract . Finally, plaintiff asked that the court not dismiss the complaint without a hearing

, citing Huminski v. Lavoie , 173 Vt. 517 (2001)

.

In an October 2013 order, the court granted the DOC’s motion to dismiss. It found tha t the DOC’s reevaluation of plaintiff’s eligibility for reintegration furlough, together with its

concession that the review based on the 2008 memorandum was void, rendered the complai n t moot. The court noted that plaintiff had not address ed the mootness ar g u me nt in any of the three filings he had made since the DOC’s motion was filed ; this included plaintiff’s “ amended complaint

. ” The court accordingly granted the DOC’s motion to dismiss

. By order on the same date, the court granted plaintiff’s attorney’s motion to withdraw. This appeal followed.

Plaintiff first argues that the court shou ld have held a hearing be fore dismissing his complaint, citing Huminski as support. We reject this argument. In Huminski

, the trial court dismissed a complaint sua sponte on grounds not raised by the defendant. 173 Vt. at 519. W e found that , under such circumstances, the plaintiff had been deprived of adequate notice and opportunity to respond. Id

. at 519

- 20. We stated that “ b efore the trial court may dismiss a complaint for failure to state a cause of action on its own motion, the court must notify t he parties of the proposed action, and afford an opportunity to address the asserted grounds for dismissal, eith er in written form or at an oral hearing.” Id

. at 519. Un like Huminski , the court

here dismissed plaintiff’s complaint on the grounds specific ally advanced by the DOC in its motion. Plaintiff had ample notice of the motion and ample opportunity to respond. Despite such notice, neither plaintiff n or his attorney responded to the mootness argument. The court was not obligated to hold a hearing before dismissing this case.

We agree with the trial court, moreover, that this case is moot. G enerally, “a case

becomes moot when the issues presented are no longer ‘ live ’ or the parties lack a legally cognizable interest in the outcome.” In re Moriar ty , 156 Vt. 160, 163 (1991) (quotation omitted). As set forth above, plaintiff argued that the DOC had evaluated his request for reintegration furlough using the wrong standard. The DOC conceded that it had erred

, and it reevaluted plaintiff’s request un der the appropriate standard. Plaintiff has obtained all of the relief that the court could have granted him. Id . (“A case is moot if the reviewing court can no longer grant

effective relief .” ( quotation omitted ) ).

Plaintiff also asserts that the court failed to address his pro se “amended complaint

. ” Plaintiff did not follow the proper procedure in seeking to amend his complaint. See V.R.C.P. 15(a) (as relevant here, party may amend pleading only by leave of court or by written consent of

the adverse party). In any event, t his document challenged the DOC’s reevaluation decision. It was a new complaint based on a new DOC decision; plaintiff remains free to file such complaint3

in the civil division after following any DOC grievance procedure that may exist. The allegations in this new complaint did not undermine the fact that the existing complaint was

moot. We find no error in the court’s decision.

Affirmed

.

BY THE COURT:

___________________ ____________________ Paul L. Reiber, Chief Justice

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Beth Robinson, Associate Justice