Fellows v. Pallito ( 2016 )

Fellows v. Pallito, No. 598-9-15 Wncv (Tomasi, J., Feb. 10, 2016)
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VERMONT SUPERIOR COURT
WASHINGTON UNIT
CIVIL DIVISION
│
Frank Fellows, │
Plaintiff, │
│
v. │
│ Docket No. 598-9-15 Wncv
Andrew Pallito, │
Commissioner, │
Vermont Department of Corrections, │
Defendant. │
Opinion and Order on Defendant’s Motion to Dismiss
Plaintiff Frank Fellows is an inmate within the control and custody of the
Vermont Department of Corrections (the “Department”), who is currently
incarcerated at North Lake Correctional Facility, in Michigan. Plaintiff brings this
action, pursuant to Vt. R. Civ. P. 75, seeking review of the Department’s decision
not to afford him particular dietary options. The Defendant has moved to dismiss,
arguing that Plaintiff has alleged no cognizable injury that can be reviewed under
Rule 75. The Court makes the following determinations.
Analysis
Plaintiff’s complaint and his supplemental filings indicate that the food at his
facility is of low quality, is often processed, and is not accurately described in the
menus – e.g., he claims the beef patties actually contain a significant amount of
chicken. He is principally concerned about consuming processed foods, which he
claims can eventually lead to cancer. Plaintiff has not asserted that he has any
particular medical or religious need for a particular diet, and has not claimed that
the food provided fails to meet any established minimum nutrition or health
standards. When he asked the Department to provide him with different menu
options, it refused. He grieved that decision, lost, and subsequently appealed to this
Court.
In evaluating a motion to dismiss for lack of subject matter jurisdiction under
Vt. R. Civ. P. 12(b)(1), the Court takes “all uncontroverted factual allegations of the
complaint … as true and construed in the light mist favorable to the nonmoving
party.” Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997). In addition,
unlike a motion under Rule 12(b)(6), the Court may also consider materials outside
the complaint in deciding whether it has jurisdiction. See Conley v. Crisafulli, 2010
VT 38, ¶3, 188 Vt. 11, 14.
Vt. R. Civ. P. 75. allows limited judicial review of governmental
administrative decisions, but only “if such review is otherwise available by law.”
The Vermont Supreme Court has interpreted this provision to mean that review is
allowable if it “is provided by the particular statute establishing an agency,” or falls
under one of the common law writs, namely: certiorari, mandamus, or prohibition.
Rheaume v. Pallito, 2011 VT 72, ¶ ¶ 9-10, 190 Vt. 245, 250. Here, as there is no
statutory right to review, this Court has jurisdiction only if one of those writs is
applicable.
Review under a writ of certiorari allows judicial examination of decisions
taken by public officers that are quasi-judicial in nature. The Department’s actions
in this instance are not reviewable under certiorari because, in setting its food
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menus, the Department is not acting in a quasi-judicial capacity – i.e., as a court.
Instead, it is fulfilling its duties under Chapters 3 and 11 of Title 28 to make
decisions as to how to provide for the needs of the inmates and to review those
decisions periodically. See Rheaume, 2011 VT 72, ¶ 10, 190 Vt. at 250.
Nor is review available in this instance under a writ of prohibition. “The
function of a writ of prohibition is to prevent the unlawful assumption of
jurisdiction by a tribunal contrary to common law or statutory provisions.” In re
Mattison, 120 Vt. 459, 463 (1958). Prohibition is plainly inapplicable here because
the Department has the responsibility to provide food to prison inmates. See Ala v.
Pallito, No. 2013–434, 2014 WL 3714892, at *1 (June 2014) (unpub. mem.)
(Department’s conduct in dispensing medications within its authority and not
reviewable under writ of prohibition); cf. Rheaume, 2011 VT 72, ¶ 6, 190 Vt. at 249
(“There is no question that the structuring of programming requirements is within
the agency purview of the [Department]; thus Rule 75 review cannot be derived
from this writ.”).
Plaintiff’s only possible avenue of review is pursuant to a writ of mandamus.
Mandamus is a remedy wherein the Court “require[s] a public officer to perform a
simple and definite ministerial duty imposed by law.” Sagar v. Warren Selectboard,
170 Vt. 167, 171 (1999). For it to apply, there must be a statutory limitation on the
Department’s discretion. See Rheaume, 2011 VT 72, ¶¶ 9-10, 190 Vt. at 250. Here,
plaintiff can point to no statute constraining the Department’s ability to set menus
in its facilities. Ala, No. 2013–434, 2014 WL 3714892, at *1 (Department’s conduct
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in dispensing medications not reviewable under writ of mandamus as it has no
specific, statutory duty to dispense drugs in a particular manner).
Furthermore, even under the standard of a so-called “extreme abuse of
discretion,” where mandamus is used to address truly arbitrary abuses of power,
relief would be unavailable. See Vermont State Employees’ Ass’n, Inc. v. Vt. Crim.
Justice Training Council, 167 Vt. 191, 195 (1997). Case law has made clear that an
extreme abuse of discretion must amount “to a practical refusal to perform a certain
and clear legal duty.” Inman v. Pallito, 2013 VT 94, ¶ 15, 195 Vt. 218, 224 (internal
quotation omitted). Absent that, mandamus may not issue, no matter how
seemingly arbitrary or extreme the Department’s decision making may appear. See
Holcomb v. Pallito, No. 2011–316, 2012 WL 390699, at *1 (Vt. Jan. 26, 2012)
(unpublished mem.).
Plaintiff has submitted to the Court his complaint and two supplemental
filings that further explain his claim. He has pointed to no clear duty that the
Department is shirking in refusing to provide him with his desired choices of food.
He has proffered no specific medical or religious need for such a diet. While he has
noted his concern regarding the long-term consumption of processed foods, he has
not asserted in his submissions that the food being provided fails to meet any
established minimum nutritional or health standards. Under such circumstances,
the Court has no jurisdiction to review the Department’s decision under Rule 75.1
1Although Plaintiff’s complaint does not contain a constitutional claim, the
Court notes that any such cause of action also would be unlikely to succeed. See
Cunningham v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977) (complaints about the
preparation or quality of prison food are generally “far removed from Eighth
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Conclusion
In light of the foregoing, the Motion to Dismiss is granted.
Electronically signed on February 10, 2016 at 09:58 AM pursuant to V.R.E.F. 7(d).
________________________
Timothy B. Tomasi
Superior Court Judge
Amendment concerns”); Price v. Rees, No. 5:06-CV-P186-R, 2007 WL 2461674, at *5
(W.D. Ky. Aug. 23, 2007) (claim of future harm from ingestion of processed foods
presents no actionable, present injury).
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