Cote v. Menard, 116-2-18 Wncv (Teachout, J., Oct. 3, 2018)

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 116-2-18 Wncv

ROBERT COTE

Plaintiff

v.

LISA MENARD

Defendant

DECISION

The State’s Motion for Summary Judgment

Mr. Cote’s Motion for Voluntary Dismissal Without Prejudice

Plaintiff Robert Cote, an inmate in the custody of the Commissioner of the Department of 

Corrections, asserts in his amended complaint that the Vermont Department of Corrections 

removed him from its work camp program without a hearing due to issues (characteristics of his 

criminal convictions) that pre-existed his participation in work camp. He asserts that doing so 

violated its own work camp policy and his due process rights. The State has filed a motion for 

summary judgment arguing that this court lacks subject matter jurisdiction because Mr. Cote 

failed to exhaust his administrative remedies, that the DOC’s programming decisions are 

unreviewable, that due process does not attach to the DOC’s purely discretionary programming 

decisions, and that, in any event, it followed its own rules in removing Mr. Cote from the work 

camp.

In response to the summary judgment motion, Mr. Cote filed a “notice,” which the court 

treats as a motion, seeking permission to voluntarily dismiss this case without prejudice so that 

he may exhaust his administrative remedies. Mr. Cote has not filed any opposition to summary 

judgment otherwise. He thus has not offered any reason that his claims, once he exhausts 

administrative remedies, would survive the other bases for dismissal already briefed by the State. 

The State objects to dismissal without prejudice because it already has gone to the trouble of 

filing a motion for summary judgment. See V.R.C.P. 41(a) (no voluntary dismissal without 

prejudice of right once summary judgment motion filed).

Mr. Cote’s motion for voluntary dismissal without prejudice is denied. The State already 

has filed a motion for summary judgment. Even if Mr. Cote were to properly exhaust his 

administrative remedies and file suit again, he offers no reason why his claims would survive a 

motion to dismiss on the issues already briefed by the State in its motion.

The court cannot review the DOC’s decision to remove Mr. Cote from or to not return 

him to work camp. The DOC’s work camp decisions are not reviewable. Work camp is a 

program of “rehabilitation through community service.” Charbonneau v. Gorczyk, 2003 VT 

105, ¶ 6, 176 Vt. 140. Generally, the DOC’s decisions about any particular inmate’s 
2

programming are unreviewable. Rheaume v. Pallito, 2011 VT 72, ¶ 11, 190 Vt. 245. No statute 

or rule requires the DOC to place any inmate, eligible or not, in work camp. Similarly, no statute 

or rule requires the DOC to give an inmate who is in work camp, or who is eligible but not in 

work camp, good time credit. See 28 V.S.A. § 811 (credit is discretionary).

Mr. Cote had no right to be placed in work camp, and he had no rights to enforce any 

restrictions on the DOC’s decision to remove him from work camp. There is no apparent liberty 

or property interest at stake that could support any due process claim. 

ORDER

For the foregoing reasons, 

1. Mr. Cote’s Motion for Voluntary Dismissal Without Prejudice is denied, and 

2. The State’s Motion for Summary Judgment is granted.

Dated at Montpelier, Vermont this ____ day of October 2018.

_____________________________

Mary Miles Teachout

Superior Judge