Facts
- Franklin Halls filed a complaint against Deputy Avery Olsen for illegal search and seizure, invasion of privacy, and unreasonable force during a police operation [lines="21-23"].
- Halls alleges that Olsen obtained a search warrant without evidence of a crime and led officers in executing the warrant by forcibly entering a residence [lines="25-30"].
- During the search, officers reportedly held Halls’s wife and grandchild at gunpoint and confiscated a safe and cell phones, which have not been returned [lines="39-42"].
- Halls did not allege any presence during the search nor specify any property interests in the residence [lines="44-46"].
- Despite being given the opportunity, Halls failed to respond to Olsen's motion for judgment on the pleadings [lines="50"].
Issues
- Did Halls adequately plead facts demonstrating standing to bring claims of illegal search, invasion of privacy, and unreasonable force against Olsen? [lines="81-102"].
- Did Halls meet the burden of proving that Olsen’s actions violated clearly established law to overcome the defense of qualified immunity? [lines="131-145"].
Holdings
- The court found that Halls did not plead sufficient facts to establish standing for any of his claims against Olsen [lines="121"].
- Halls failed to demonstrate that Olsen's conduct violated clearly established law, thereby not overcoming the qualified immunity defense [lines="145"].
OPINION
Case Information
*-743 7ermont Superior Court *-737 Filed 07/25/24 *-730 Caledonia Unit *-675 CIVIL DIVISION VERMONT SUPERIOR COURT
Case No. 23-CV-01442 Caledonia Unit
1126 Main Street Suite [1]
St. Johnsbury VT 05819
802-748-6600
www.vermontjudiciary.org
ames Burke v Nick Deml
ENTRY REGARDING MOTION
Title: Cross Motion for Summary Judgment (Motion: 11)
Pamela Eaton
Filer:
Filed Date:
April 23, 2024
The motion is GRANTED.
This is a Rule 75 appeal seeking to challenge the amount of outside recreational time allowed *-416 to Vermont inmates, including Petitioner, who are housed at the CoreCivic, Inc. facility known as *-397 the Tallahatchie County Correctional Facility (""TCCF') in Tutwiler, Mississippi. Specifically,
Petitioner Burke complains that he and other Vermont inmates are only given 1.5 hours of outdoor *-358 recreational time, and on Sundays they are not admitted to a second yard area with grass. Petitioner *-340 alleges that this is different than inmates in Vermont facilities who enjoy 6 hours of recreational time *-319 per day.
Both Petitioner Burke and the Department of Corrections have moved for summary
judgment on Petitioner's claims. After reviewing both parties' motions and statements of
undisputed material facts, the Court concludes that there are sufficient undisputed material facts to *-238 establish that Respondents are entitled to judgment as a matter of law.
Undisputed Material Facts
Based on the affidavits and statements of undisputed material facts, the Court finds the *-164 following facts are material to Petitioner Burke's claims and are undisputed.
Beginning on October 1, 2018, the State of Vermont began sending inmates to the TCCF *-120 facility pursuant to an agreement between the State of Vermont and CoreCivic, Inc., the owner and *-102 operator of TCCF (the "Contract"). Under Section 4.12.5 of the Contract, inmate recreation is *-81 governed by two provisions. First, the Contract requires CoreCivic, Inc. to provide Vermont
Page [1] of [5] *-67 Entry Regarding Motion
23-CV-01442 James Burke v Nick Deml
inmates with a minimum of six (6) hours of opportunities to be outside their cells every day. These
opportunities can include indoor or outdoor recreation or classes, or other activities. Within these
six hours, however, CoreCivic, Inc. has agreed to provide 1.5 hours on a daily basis for out-of-unit
recreation. In practice, this time has been allocated between two outdoor yards—one primarily
concrete and one with some grass.
Petitioner has been housed at TCCF since October of 2018, and he has been provided these
daily out-of-cell and recreational opportunities. Petitioner has taken advantage of these
opportunities and has occasionally declined these opportunities. It also appears that due to staffing,
weather, and other concerns, there have been days where TCCF has had to modify the recreational
time offered and its location. There is no evidence that these have been widespread or consistent
issues.
Nothing in the Contract, Vermont law, or the Vermont’s Department of Corrections’
policies require the Department or any of the facilities housing Vermont inmates to provide a set
amount of outdoor recreation time or even a minimum of out-of-cell recreation time. As the
Department notes, these services are determined on a facility-by-facility basis and are affected by the
number inmates in the facility, available staff on a given day, the different populations at a facility —
including whether a facility has male and female populations and high and low risk populations. The
options are also defined by the nature of the facility and areas available for outdoor or indoor
recreation as well as local weather conditions.
TCCF and other facilities are staffed and operated in accordance with the American
Correctional Association’s standards, and Vermont officials have the right to inspect and monitor
operations at TCCF. Vermont, however, is not responsible for training, managing, or even
implementing policies at TCCF, except as the Contract may create the right and expectation to
certain services and levels of performance.
There is no evidence that TCCF is in violation of the Contract, and the State attests that it is
satisfied with TCCF’s compliance with the terms of the Contract as appropriate and in-line.
Standard of Review
As noted, the present action is a request for review of governmental action under V.R.C.P.
75. The scope of such a review is narrow and defined as one of three classes of decisions. Rheaume
Entry Regarding Motion Page [2] of [5]
23-CV-01442 James Burke v Nick Deml
v. Pallito , 2011 VT 72, ¶¶ 5–8. In this case, Petitioner is seeking Rule 75 review under the category of
mandamus or certiorari because he is seeking enforcement of existing duties and is not seeking to
create new duties or require the Department to do more than the law has made it its duty to do and
is seeking clarification as to what law affects the merits of his grievance under Article 7 of the
Vermont Constitution (common benefits clause). Id. at ¶ 7, 8; Ahern v. Mackey , 2007 VT 27, ¶ 8;
Vermont Constitution Art. I, Sec. 7. [1] Under either mandamus or certiorari, the standard of review is
“necessarily narrow,” and the Department’s policies and implementation are entitled to deference.
Ahern , 2007 Vt 27, at ¶ 8 (citing In re Town of Bennington , 161 Vt. 573, 574 (1993) (mem.)); see also
Lemieux v. Tri-State Lotto Comm’n , 164 Vt. 110 112–13 (1995).
In addition to the scope of review, this motion is also reviewed under V.R.C.P. 56(a) as both
parties have filed motions for summary judgment. Under this provision, the court may enter
summary judgment when, “after adequate time for discovery, a party fails to make a showing
sufficient to establish the existence of an element essential to [his or] her case and upon which [he
or] she has the burden of proof.” Gallipo v. City of Rutland , 2005 VT 83, ¶ 13 (quotation marks
omitted). When determining whether there is a disputed issue of material fact, a court must afford
the party opposing summary judgment the benefit of all reasonable doubts and inferences . Carr v.
Peerless Insurance Co. , 168 Vt. 465, 476 (1998). However, a non-moving party cannot rely on bare
allegations, unsupported generalities, or speculation to defeat a properly supported motion for
summary judgment. See V.R.C.P. 56(c), (e); Webb v. Leclair , 2007 VT 65, ¶ 14 (mem.). “[C]onclusory
allegations without facts to support them are insufficient to survive summary judgment .” Robertson v.
Mylan Laboratories, Inc. , 2004 VT 15, ¶ 48. Thus, an opposing party’s allegations must be supported
by affidavits or other documentary materials which show specific facts sufficient to justify
submitting his or her claims to a factfinder. See Robertson , 2004 VT 15, ¶ 15; Samplid Enterprises, Inc.
v. First Vermont Bank , 165 Vt. 22, 25 (1996).
Legal Analysis
The primary question of this case is whether Petitioner Burke has a right to outdoor
recreational time beyond what he is receiving at TCCF. Petitioner’s filings rely on only two sources
*4 for his allegations that he is not receiving the same common benefits as other inmates who are
housed in Vermont facilities. These are reference to Section 7 of Article I of the Vermont
Constitution and the bald allegation that inmates in the Newport, Vermont correctional facility
receive additional outdoor recreational time. [2]
The analysis of a common benefits clause claim begins with the question of whether there is
a benefit or protection conferred by the State for the common benefit of the community. Baker v.
State , 170 Vt. 194, 212 (1999); see also In re Town Highway No. 20 , 2012 VT 17, ¶ 37. As the Vermont
Supreme Court has articulated the test:
First , of course, a plaintiff must show the denial of a common benefit. In doing so,
the plaintiff must show disparate and arbitrary treatment when compared to others
similarly situated. Second , the plaintiff must show that the denial directly favors
another particular individual or group. Finally , because we must defer to any
“reasonable and just” basis supporting a discretionary judgment by a governmental
decisionmaker, a plaintiff must demonstrate not only that that the decision was
wholly irrational and arbitrary, but also that it was actuated by personal motives
unrelated to the duties of the defendant's official position, such as ill will,
vindictiveness, or financial gain.
In re Town Highway No. 20 , 2012 VT 17, at ¶ 37 (emphasis added and internal citations omitted).
In this case, there is no evidence that there has been a denial of a common benefit.
Petitioner seeks to narrowly draw the benefit to outdoor time, but this distinction is an artificial one
and one created by Petitioner, not the Vermont General Assembly or even the Department of
Corrections. As the Department notes, there is no statutory right to either recreational time or a set
amount of the time outside of their cells. The Department has created a system where inmates at
TCCF receive the equivalent amount of time out of their cells as inmates in Newport. Both
populations receive a guaranteed minimum of outdoor recreation time, but apart from that, each
facility has the flexibility to schedule and program the out-of-cell time differently.
Petitioner centers his claim on these distinctions, but there is no basis to classify these as
fundamental benefits as no branch of government has defined them as such. As a result, there is no
evidence that Petitioner is part of a community or group that is denied a common benefit.
*5 Even if the Court were to indulge Petitioner’s distinctions, he cannot overcome third test of
a common benefit, which is to show that the distinction is without reasonable or just basis. The
Department in their supporting affidavits and statement of undisputed material facts demonstrate an
abundance of policy purposes and distinctions that drive the different types of programs available at
each facility, including the nature of the different populations, safety concerns at each site, and the
resources in staffing and physical space at each facility. TCCF, in particular, has seven different populations that are managed at the facility, and the specific management and administration
decisions are made by a non-party, CoreCivic, Inc., who has the discretion, flexibility, and authority
to manage the facility in a manner consistent with the Contract and applicable national standards.
Collectively, these circumstances demonstrate a just and reasonable basis for the distinction and for
the delegation of these decisions to each facility, rather than making state-wide policy or standards.
Based on this, Petitioner’s claim necessarily fails, and the Department is entitled to Summary
Judgment on all claims in this matter.
ORDER
Commissioner Deml and the Department of Corrections are entitled to judgment as a
matter of law on Petitioner’s claims. Respondent’s cross motion for summary judgment is Granted ,
and the present Rule 75 Appeal is Denied and Dismissed . Petitioner’s motions for summary
judgment are Denied . All other motions pending in this matter are Denied as Moot in light of the
Court’s grant of summary judgment to Respondents.
Electronically signed on 7/24/2024 2:21 PM pursuant to V.R.E.F. 9(d)
__________________________________
Daniel Richardson
Superior Court Judge
Entry Regarding Motion Page [5] of [5]
23-CV-01442 James Burke v Nick Deml
[1] In this respect, the writ of prohibition (unlawful assumption of jurisdiction), would not apply to what Petitioner is seeking review—namely the implementation of a recreational policy that is inconsistent with the Department’s legal obligations. Id. at ¶¶ 5, 6 Entry Regarding Motion Page
[3] of
[5] 23-CV-01442 James Burke v Nick Deml
[2] For the purpose of the following analysis under V.R.C.P. 56, the Court will presume that Petitioner’s allegation is true and that inmates in Newport receive a different amount of time in outdoor recreation time. Entry Regarding Motion Page
[4] of
[5] 23-CV-01442 James Burke v Nick Deml