Wool v. Menard, No. 724-12-17 Wncv (Tomasi, J., Mar. 23, 2020). 

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

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

VERMONT SUPERIOR COURT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 724-12-17 Wncv

│

Kirk Wool, │

 Plaintiff │

│

 v. │

│

Lisa Menard, Commissioner, │

Vermont Department of Corrections, │

 Defendant │

│

Opinion and Order on Mr. Wool’s Motion to Reopen Discovery

and the State’s Motion to Dismiss

Plaintiff Kirk Wool is an inmate in the custody of Defendant the Vermont 

Department of Corrections (DOC). At some point during his incarceration, he 

acquired a JPay computer tablet with which he bought and could access computer 

games and songs. When he was housed in a Michigan facility, he was permitted to 

have and use his JPay. He subsequently was transferred to a Pennsylvania facility. 

He alleges that when he was transferred from Michigan to Pennsylvania, the DOC 

wrongfully refused to permit him to take his JPay with him. He claims that the 

Pennsylvania facility permitted incoming Vermont inmates to bring these devices 

and retain them in Pennsylvania, but the DOC falsely asserted the opposite and 

then forcibly dispossessed affected Vermont inmates of their JPays. Mr. Wool 

alleges that he was told that the DOC would destroy his JPay unless he sent it out 

of the facility. Mr. Wool sent his JPay to a friend and thus lost possession of it. 
2

Ever since, he has been unable to regain possession of it. Mr. Wool initiated this 

case seeking the return of his JPay or monetary compensation for its loss. 

The pending motions consist of Mr. Wool’s motion to reopen discovery and the 

State’s latest motion to dismiss. To understand these motions in proper context, a 

brief review of the history of this case is necessary.

1. Procedural history of this case

At the time of the original complaint (filed December 18, 2017) in this case, 

Mr. Wool was in the Pennsylvania facility. He sought the return of his JPay or 

monetary compensation for its value.1 His legal claims included, among others, 

replevin, and he sought to have the case certified a class action with himself, a 

nonlawyer, acting as class counsel. He attached to his complaint evidence of an 

apparently exhausted grievance proceeding, including a final decision by the 

Vermont Commissioner stating, “The Pennsylvania DOC does not allow for JPay 

tablets. . . . You were allowed to send your tablet out of the facility at the DOC’s 

expense. No reimbursement is due. Your appeal is denied.”

The DOC filed a motion (March 16, 2018) to dismiss the December 18, 2017 

complaint on numerous bases, including that the case could not be certified as a 

class action and thus “all similarly situated” plaintiffs should be dismissed from the 

case. Mr. Wool responded to the motion to dismiss with a May 14, 2018 amended 

1 Mr. Wool stresses that he vastly prefers the return of his JPay to monetary relief 

because its content has sentimental value.
3

complaint. In a July 31, 2018 decision, the Court noted that the only defendant 

properly served in the case is the State itself. It ruled that the case cannot be 

certified a class action without, among other things, a lawyer to serve as class 

counsel, and that Mr. Wool, a nonlawyer, cannot be class counsel. Otherwise, the 

Court granted the motion to amend and declined to rule any further on the motion 

to dismiss in light of the amendment.

On August 31, 2018, Mr. Wool filed motions for purported extraordinary 

relief and to “revert” back to his original complaint (withdrawing the amended 

complaint). By these motions, Mr. Wool claimed to be seeking to clarify any 

confusion over the issue of administrative exhaustion caused by his May 14, 2018 

complaint. The Court denied the motion for extraordinary relief and granted the 

motion to revert. The December 18, 2017 complaint again became the active 

complaint. Mr. Wool also sought reconsideration of the Court’s class certification 

decision, which the Court denied.

On October 16, 2018, Mr. Wool notified the Court of his new Mississippi 

address. He had been transferred from the Pennsylvania facility to a Mississippi 

facility.

The State filed a new motion to dismiss on November 29, 2018 again 

addressing the original December 18, 2017 complaint. It sought dismissal of all 

claims against Commissioner Menard in her individual capacity. It further sought 

dismissal of the replevin claim, any claim based on “misinformation,” and any 

claims based on equal protection or common benefits. It further argued that any 
4

claims (including for injunctive relief) based on the conditions of confinement in 

Pennsylvania are moot now that Mr. Wool is no longer in the Pennsylvania facility.

The case was scheduled for hearing on June 3, 2019. At the hearing, the 

Court dismissed the claim styled as replevin as its nature is possessory, and the 

State does not possess Mr. Wool’s JPay. Mr. Wool assented to the dismissal of 

Commissioner Menard in her individual capacity, and he recognized that GEO 

Group is not a party to the case.2 The Court thus clarified that the only defendant 

in this case is the State. 

Mr. Wool also clarified at the June 3 hearing the principal allegations of his 

claim. He claims that he was allowed to possess his JPay in Michigan, and the 

Pennsylvania facility to which he was to transfer also permitted him to have his 

JPay. Vermont inmates in Vermont at the time also were permitted to have JPays.3 

Regardless, Mr. Wool alleges that the DOC arbitrarily determined that Michigan 

prisoners transferring to Pennsylvania could not keep their JPays based solely on 

the false representation that the Pennsylvania facility would not permit them and 

with the intent to persecute the inmates. Having since transferred to Mississippi, 

2 GEO Group’s party status had been in some controversy.

3 The State objected at the hearing, consistent with the Commissioner’s decision on 

Mr. Wool’s administrative grievance, that the Pennsylvania Department of 

Corrections did not permit incoming Vermont inmates to bring their JPays to 

Pennsylvania. However, that is a factual issue that awaits the presentation of 

evidence. Mr. Wool clearly alleges the contrary: that Pennsylvania permitted 

incoming Vermont inmates to bring their JPays and the only reason they could not 

do so is because the Vermont DOC unilaterally prevented it.
5

Mr. Wool observed that Vermont inmates who transferred to Mississippi directly 

from Pennsylvania, including him, have no JPays. Vermont inmates who 

transferred to Mississippi from Vermont, and who had JPays in Vermont, now have 

them in Mississippi. The DOC allegedly nevertheless will not permit inmates such 

as Mr. Wool, who previously lost possession of their JPays, to have them returned.

The Court concluded at the hearing, and Mr. Wool assented, that his 

operative complaint had become moot with his transfer to Mississippi.4 With the 

parties’ assent, the Court set a deadline of June 17, 2019 for Mr. Wool to amend the 

complaint or the case would be dismissed. The Court also set other scheduling 

dates as reflected in its written June 3 entry order: deadline for discovery 

requests—June 28, 2019; deadline for motions—August 15, 2019; case to be trialready by September 1, 2019 (if no motions filed).

In response, Mr. Wool filed an amended complaint on June 17. The June 17 

complaint is a refinement in some respects of Mr. Wool’s prior complaints but 

includes virtually no allegations or alterations to his claims as related to his current 

location in Mississippi as may have been anticipated at the June 3 hearing. To the 

extent that Mr. Wool is attempting to bring an equal protection or common benefits 

claim, this complaint is unclear as to which classes of inmates he asserts were or 

are similarly situated.

4 This ruling presumably resulted from a belief that Mr. Wool’s claim had morphed 

into one contingent on his current circumstances in Mississippi rather than the 

circumstances he experienced at the time of the loss of his JPay or the day-to-day 

conditions of confinement in Pennsylvania.
6

On July 5, the State filed a motion to dismiss Mr. Wool’s June 17 complaint. 

It argued that any 42 U.S.C. § 1983 claim for damages is not viable because the 

State is not a person subject to a damages claim pursuant to § 1983. It argued that 

the complaint more generally fails to state a claim for any violation of equal 

protection or common benefits because inmates in different prisons as a matter of 

law cannot be similarly situated. And, it argued that Mr. Wool fails to state a claim 

for damages insofar as he cannot be considered to have suffered any legally 

cognizable loss because he was permitted to send his JPay to a friend.

Before the Court ruled on the State’s motion to dismiss, Mr. Wool filed 

another motion to amend the complaint, along with the proposed amendment, on 

August 12, 2019. The August 12 complaint is essentially similar to the stream of 

previous iterations. It appears, however, to also assert that there is a Vermont or 

Mississippi policy expressly allowing Vermont inmates in Mississippi to have their 

JPays returned to them on request. See August 12, 2019 Complaint 25–27. At the 

same time, it appears to assert that Vermont inmates in Mississippi who were 

transferred there directly from Pennsylvania (such as Mr. Wool) nevertheless still 

are not permitted to have their JPays returned to them. See id. ¶ 48.

The Court granted Mr. Wool’s August 12, 2019 amendment on September 16, 

2019. It summarily denied the State’s July 5 motion to dismiss Mr. Wool’s June 17 

complaint without prejudice in light of the amendment.

Thereafter, on December 23, 2019, Mr. Wool filed the pending motion to 
7

reopen discovery, which closed on June 28, 2019 according to the Court’s June 3, 

2019 entry. Although Mr. Wool describes his need for additional discovery to be 

“limited,” he purports to now seek “all documents that [detail] the right, privileges 

and obligations of inmates purchasing a JPay tablet as well as purchasing content 

such as music and video games, [etc.] As well as the obligations and duties of 

JPay. . . . [T]his request would also include [a] copy of the Contract between JPay 

and Vermont DOC.” Motion to Reopen 1 (filed December 23, 2019).

Three days later, the State filed the pending motion to dismiss. It argues 

that Mr. Wool has failed to preserve any issues contingent on his placement in 

Mississippi for failure to have raised them in any exhausted administrative 

proceeding (at least any within the scope of this case). It again argues that any 42 

U.S.C. § 1983 claim for damages is not viable because the State is not a person 

subject to a damages claim pursuant to § 1983. It argues that any equal protection 

or common benefits claim is not viable because inmates in different prisons are not 

similarly situated as a matter of law and because Mr. Wool has not alleged any 

improperly motivated discriminatory decision-making. Finally, the State argues 

that, as a matter of law, Mr. Wool has not suffered any compensable loss because he 

was allowed to send his JPay home.

In sum, from the start, Mr. Wool has been attempting to assert variously 

expressed legal claims all arising out of his loss of possession of his JPay, an event 

that is alleged to have occurred once, when he was in Michigan and about to 

transfer to Pennsylvania. While his recharacterizations of his legal claims to some 
8

extent have been a moving target, it at least is clear that he is attempting to raise 

both an equal protection and common benefits claim. It is unclear who the allegedly 

similarly situated classes are, however. Mr. Wool variously compares his situation 

to (a) inmates who remained in Vermont; (2) inmates in the custody of Pennsylvania 

and either housed in Pennsylvania or out of state who then transferred to 

Pennsylvania; and (3) inmates in Mississippi, whether transferred there from 

Vermont or directly from Pennsylvania. It is reasonably clear that when he was 

first dispossessed of his JPay, he grieved that issue and ultimately exhausted his 

administrative remedies as evidenced by a decision of the Commissioner of DOC. 

He was in Pennsylvania at the time.

2. Mr. Wool’s Motion to Reopen Discovery

Mr. Wool initiated this case on December 18, 2017. Discovery closed on June 

28, 2019 by court order. Though Mr. Wool has repeatedly amended his complaint, 

his basic cause of action has been static throughout. He believes that the DOC 

wrongfully dispossessed him of his JPay when he was in Michigan preparing to 

relocate to Pennsylvania. His attempt to reopen discovery at this point to inquire 

into rights and obligations related to JPays comes far too late and is not 

accompanied by any explanation for his failure to have sought this discovery earlier. 

The subject of the proposed discovery has been at the heart of this case from the 

beginning. There is no good cause to reopen discovery. This motion is denied.

3. The State’s Motion to Dismiss

In the State’s motion to dismiss, it argues (a) that Mr. Wool has failed to 
9

preserve any issues contingent on his placement in Mississippi; (b) that any claim 

for damages based on an alleged violation of federal rights is not viable against the 

State; (c) that any equal protection or common benefits claim is not viable because 

inmates in different prisons as a matter of law cannot be similarly situated; (d) that 

any equal protection or common benefits claim is not viable because there is no 

allegation of improperly motivated discriminatory decision-making; and (e) that Mr. 

Wool has not suffered any compensable loss because he was allowed to send his 

JPay home.

a. Preservation

Mr. Wool grieved the loss of his JPay when it occurred, and he appears to 

have exhausted the grievance procedure, culminating in a decision by the 

Commissioner to the effect that he was not entitled to compensation because 

Pennsylvania policy prevented him from taking his JPay there. That exhaustion 

appears to have occurred long before Mr. Wool ever was transferred to Mississippi. 

The State now argues that Mr. Wool has not preserved any issue related to his 

placement in Mississippi. Mr. Wool has responded by asking for an opportunity to 

again amend his complaint, to what end is unclear. He does not assert that he in 

fact has preserved any claims based on his current location in Mississippi. And, he 

could not have preserved any such claims in the administrative proceeding that

preceded this case because he had not yet been relocated to Mississippi when this 

case began.

Generally, to raise a matter in court, an inmate must exhaust the 
10

administrative procedure that was available and preserve any issue for review in 

court by first raising it before the agency. 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). 

Mr. Wool could not have preserved for review any issues contingent on his 

placement in Mississippi because he filed this case before he was transferred there. 

He has asserted that there is a policy in Mississippi that inmates may have their 

JPays returned to them. If he has attempted to take advantage of such a policy and 

been refused, and he seeks review of that refusal, he must first present that matter 

to the DOC for administrative determination prior to review in court. To the extent 

that Mr. Wool is attempting to raise any such claim in this case, it is dismissed for 

lack of preservation. Mr. Wool’s offer to again amend his complaint cannot cure the 

historical failure to have presented such an issue to the agency prior to filing suit.

On the other hand, Mr. Wool’s principal claim is related to the loss he 

suffered when he was originally dispossessed of his JPay. It appears that claim was 

grieved at the time. Therefore, as to this ground, the State’s motion is granted in 

part and denied in part.
11

b. Damages based on Violation of a Federal Right, 42 U.S.C. § 1983

Section 1983 is the statutory mechanism by which one seeks relief for 

violation of a federal right against a “person.”5 42 U.S.C. § 1983. The State argues 

that to the extent that Mr. Wool is seeking monetary relief against it for the 

violation of any federal rights, such a claim is not permissible because neither a 

state nor a state employee in official capacity is subject to a claim for monetary 

damages under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 71 

n.10 (1989); Shields v. Gerhart, 155 Vt. 141, 150 (1990); Heleba v. Allbee, 160 Vt. 

283, 286 (1993). The only defendant in this case is the State. 

Mr. Wool’s primary response to the State’s argument is that if he needs to 

name a different “person” as a defendant, then he should be permitted to amend the 

complaint yet again to do so. He has not more formally sought to add a defendant 

or amend the complaint. Nor has he identified such a person, much less provided a 

proposed amended complaint that describes any “personal involvement” of such a 

prospective defendant in the alleged constitutional deprivation. See, e.g., Hendricks 

v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997) (Section 1983 liability cannot be based 

on respondeat superior but only on direct personal fault.). The Court offers, 

however, that while it has liberally indulged Mr. Wool’s unconventional pleading 

practice up to now, this case is well beyond the time when it was supposed to be 

5 While Mr. Wool insists in briefing that he is not relying on 42 U.S.C. § 1983, he 

offers no cogent alternative legal route to advance his federal claim(s).
12

trial-ready, and it is long past time to bring in new parties, which at a minimum 

would start the discovery clock over. Adding new individual capacity parties to this 

case at this time would not be reasonable.

Any claim for monetary damages for violation of a federal right against the 

State is dismissed under § 1983.

c. Prospective Relief Section 1983

Section 1983 does allow claims for prospective relief to be filed against state 

officers in their official capacities. A “state official in his or her official capacity, 

when sued for injunctive relief, [is] a person under § 1983 because ‘official-capacity 

actions for prospective relief are not treated as actions against the State.’” Will, 491 

U.S. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). 

Further, while they cannot be sued for retrospective relief due to the immunity 

provided by the 11th Amendment to the federal Constitution, state officials in their 

official capacities can be sued for prospective relief. See, e.g., Kanuszewski v. 

Michigan Dep’t of Health & Human Servs., 927 F.3d 396, 417 (6th Cir. 2019) (citing 

Ex Parte Young, 209 U.S. 123, 59–60 (1908)). Importantly, however, this doctrine 

“does not permit judgments against state officers declaring that they violated 

federal law in the past, nor does it allow a plaintiff to adjudicate the legality of past 

conduct. Higdon v. Tusan, 746 F. App’x 805, 810 (11th Cir. 2018) (citing P.R. 

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)).

As noted above, Mr. Wool is now in Mississippi. His access to property and 

requests for property need to be analyzed based on his present circumstances, and 
13

grieved through the applicable process. At this point, while a conclusion that the 

Defendant violated his rights in Pennsylvania might warrant a retrospective 

damages award, it would not control the determination of whether Mr. Wool’s rights 

are presently being violated. 

Based on the above authorities, as an official capacity claims under Section 

1983 rightly afford only prospective relief, and Mr. Wool’s claims for such relief in 

Mississippi have not been grieved, those claims are dismissed without prejudice for 

lack of exhaustion of administrative remedies. Mr. Wool’s Section 1983 claims for 

prospective relief as to his Pennsylvania claims are dismissed as moot. See Nanni 

v. Aberdeen Marketplace, Inc., 878 F.3d 447, 454 (4th Cir. 2017) (when “seeking 

prospective declaratory and injunctive relief rather than damages, ... allegations in 

the [c]omplaint of past injuries do[ ] not in [themselves] show a present case or 

controversy” (internal quotation marks omitted)). 

Since he is no longer housed in Pennsylvania, any Court order relating to the 

State’s conduct in connection with that facility would not provide forward-looking 

relief. 

d. Common Benefits—Similarly Situated Classes

Mr. Wool also seeks damages under Vermont’s Common Benefits Clause, 

which protects interests similar to the federal Equal Protection Clause. “The Equal 

Protection Clause demands that states treat similarly situated people alike, unless 

they have a rational basis for treating them differently.” Nichols v. Hoffman, 2010 

VT 36, ¶ 16, 188 Vt. 1, 9. No fundamental rights or suspect classes are at issue in 
14

this case. See 1 Michael B. Mushlin, Rights of Prisoners § 5:3 (5th ed.) (“[W]hen a 

prison regulation does not implicate fundamental constitutional rights and does not 

adversely impact on racial minorities or women, courts will apply the rational basis 

test.” (footnote omitted)). Mr. Wool’s equal protection and common benefits claims 

are articulated differently in different places. Accordingly, it is unclear which 

classes of inmates he asserts are similarly situated. 

Nevertheless, the State argues that, to the extent that the proposed classes of 

inmates are located in different prisons, for that reason alone they cannot as a 

matter of law be similarly situated. The Vermont Supreme Court rejected precisely 

this argument in Nichols. The mere fact that inmate classes are located in different 

prisons is insufficient on its own to render them differently situated for equal 

protection purposes. Regardless of different prison locations, the factual issue 

remains whether “‘the two groups are sufficiently similar with respect to the 

purpose of the law in question that some level of scrutiny is required in order to 

determine whether the distinction is justified.’” Nichols, 2010 VT 36, ¶ 17, 188 Vt. 

at 10. There is no apparent reason why this issue would differ under the Common 

Benefits Clause. The State is not entitled to dismissal on this point.

e. Common Benefits—Rational Basis

Assuming for the sake of the argument that similarly situated classes are 

present, the question then turns to whether “the government has ‘articulated a 

legitimate governmental purpose’ for the classification, and the classification bears 

a ‘rational relation’ to that purpose. As long as there is some rationality in the 
15

classification, it will be upheld even if it is ‘seemingly unwise.’” 1 Michael B. 

Mushlin, Rights of Prisoners § 5:3 (5th ed.). Mr. Wool has clearly alleged that the 

DOC has acted without any legitimate purpose or rational basis. As in Nichols, this 

is sufficient at the pleading stage.6 See Nichols, 2010 VT 36, ¶ 19, 188 Vt. at 10–11. 

Again, there is no apparent reason why this issue would differ under the Common 

Benefits Clause. The State is not entitled to dismissal on this point.

f. Compensable Damages

Lastly, the State argues that because Mr. Wool was permitted to send his 

JPay to a friend, and merely lost possession—not ownership—of it, he therefore as a 

matter of law can have no compensable damages related to its loss. As support, the 

State cites LaPrade v. Menard, No. 561-10-18 Wncv (Vt. Super. Ct. June 19, 2019), 

which relied principally on Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002), 

for the general proposition that “There generally is no constitutional deprivation of 

property when a prisoner is permitted to send property home that is not allowed to 

be possessed in prison.”

6 In seeking dismissal of Mr. Wool’s equal protection and common benefits claims, 

the State relies primarily on two cases addressing the standards applicable to equal 

protection violations in the specific context of “selective enforcement” circumstances. 

See Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004); Chandler v. 

Clark, No. 1:09–CV–60, 2009 WL 2916687 (D. Vt. Sept. 9, 2009). These authorities 

have tangential value here at best. The Court does not understand Mr. Wool to be 

attempting raise a claim of selective enforcement. See Parker v. Town of Milton, 

169 Vt. 74, 81 (1998) (explaining that an “equal protection claim must be premised 

on some form of discriminatory state action, either in the form of a discriminatory 

legislative classification or selective enforcement of a facially neutral law” 

(emphasis added)).
16

LaPrade and Hatten are inapposite to this case. They address whether there 

is an actionable deprivation of a property right for due process purposes when a 

prisoner is permitted to send property home or elsewhere for safekeeping the 

possession of which in prison otherwise would violate a legitimate corrections policy. 

Mr. Wool’s claim is quite different. He claims that his JPay was permitted in all 

relevant facilities—Vermont, Michigan, and Pennsylvania—when the DOC 

arbitrarily and vindictively falsely claimed that Pennsylvania did not permit it, and 

forcibly dispossessed him of it. The alleged circumstances are materially different 

than those of LaPrade and Hatten. The State is not entitled to dismissal on this 

basis.

Conclusion

For the foregoing reasons, Mr. Wool’s Motion to Reopen Discovery is denied. 

The State’s Motion to Dismiss is granted as to the Section 1983 claims7 and denied 

as to the Common Benefits claims.

Dated this __ day of March 2020 at Montpelier, Vermont.

_____________________________

Timothy B. Tomasi

Superior Judge

7 To the extent Plaintiff asserts Section 1983 claims arising out of his Mississippi 

placement, those claims are dismissed without prejudice.