Patrick Mullinnex et al. v. Lisa Menard et al.
No. 2019-180
Supreme Court of Vermont
May 15, 2020
2020 VT 33
Michael R. Kainen, J.
On Appeal from Superior Court, Windsor Unit, Civil Division. October Term, 2019.
NOTICE: This opinion is subject to motions for reargument under
Matthew Valerio, Defender General, and Kelly Green, Prisoners’ Rights Office, Montpelier, for Plaintiffs-Appellees.
Stephen J. Soule and Pamela L.P. Eaton of Paul Frank + Collins P.C., Burlington, and Michael Bentley and Molly Walker of Bradly Arant Boult Cummings LLP, Jackson, Mississippi, for Defendants-Appellants.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and Howard, Supr. J. (Ret.), Specially Assigned
¶ 1.
¶ 2. Pursuant to
¶ 3. An inmate who believes he or she is not receiving medical care comporting with the requirements of
¶ 4. The record reveals that the instant proceeding finds its inception in a DOC grievance form submitted by plaintiff Mullinnex on September 20, 2018, following an informal complaint to “medical” the day before. Therein, Mullinnex alleged that, although he had “been approved for MAT,” he would not be induced until thirty days prior to his release from the facility despite having “a medical need now for MAT” and a desire “to get help with [his] addiction and be induced.” At some point during the following month,3 Mullinnex appealed the local response to his grievance to the corrections executive. Finally, Mullinnex filed an appeal to the Commissioner indicating his dissatisfaction with a grievance response from the corrections executive, which Mullinnex indicated was dated October 30, 2018. Although the form providing for an appeal to the Commissioner contained a line designated for the date the appeal was submitted, this line was left blank. However, the form was filed with the civil division of the superior court on November 2, 2018, together with Mullinnex‘s request for emergency injunctive relief
¶ 5. Several days later, an attorney from the Prisoners’ Rights Office entered an appearance on Mullinnex‘s behalf in the civil case. Defendants then moved to dismiss the case as moot, indicating that Mullinnex had been prescribed MAT and began receiving it on November 7, 2018. The trial court declined to dismiss, instead directing Mullinnex to file an amended petition. Mullinnex accordingly filed an amended petition, this time through counsel, and joined as named plaintiffs John Jarvis, Shawn Gagnon, and Gregory Paradis, “on behalf of themselves and all others similarly situated.” In the amended petition, Michael Touchette and “Centurion Healthcare” were named as defendants. The amended petition was accompanied by a motion to maintain a class action on behalf of all others similarly situated, alleging the existence of three questions of law and fact common to the putative class:
(1) whether [d]efendants’ MAT induction process meets prevailing medical standards of care as required by
28 V.S.A. §§ 801(a) [and]801b , (2) whether [d]efendants’ practice and policy of withdrawing treatment for and punishing prisoner-patients who relapse or continue to use meets prevailing medical standards of care, [and] (3) whether [d]efendants’ practice and policy of denying MAT to prisoner-patients based on their legal status and without regard to their diagnosis meets prevailing medical standards of care.
¶ 6. Defendants responded in opposition to both the amended petition and the motion to maintain a class action. In addition to arguing that venue was improper and the class-action requirements were unmet, defendants contended that none of the named plaintiffs had exhausted administrative remedies relative to their MAT complaints, divesting the court of subject-matter jurisdiction. In support of the alleged failure to exhaust, defendants offered an affidavit from David Turner, the Director of Policy Development and Offender Due Process at the DOC. Turner laid out the DOC‘s grievance procedure, describing multiple “levels of appeal . . . that ultimately reach the Commissioner,” who “is the final arbiter of inmate grievances.” Although he did not mention Mullinnex‘s grievances, Turner averred that none of the named plaintiffs had exhausted their grievance appeals with respect to the three questions identified in the amended petition.
¶ 7. The court issued a decision in which it held that both venue and subject-matter jurisdiction were proper. With respect to the latter issue, the court did not hold an evidentiary hearing. Instead, it looked to the grievances filed by Mullinnex and concluded that he had exhausted his administrative remedies, noting that it found the “basis for his failure to exhaust as asserted by [d]efendant . . . unclear,” but explaining that, “[t]o the extent the purported failure lies with the absence of a response or decision from the DOC administrators, the court would deem the DOC grievance procedure ‘unavailable’ to Plaintiff Mullinnex.” Although it noted that Mullinnex appeared to have appealed to the Commissioner prior to the expiration of the twenty-day window provided under DOC rules for the Corrections Executive‘s response, the court found “this premature filing to be of
¶ 8. “A trial court lacks subject matter jurisdiction to hear a case if a party fails to exhaust administrative remedies.” Pratt v. Pallito, 2017 VT 22, ¶¶ 15, 204 Vt. 313, 167 A.3d 320. Therefore, in raising a challenge to Mullinnex‘s exhaustion, defendants in essence moved to dismiss this case below for want of subject-matter jurisdiction. “We review a trial court‘s denial of a motion to dismiss for lack of subject matter jurisdiction de novo, with all uncontroverted factual allegations of the complaint accepted as true and construed in the light most favorable to the nonmoving party.” Conley v. Crisafulli, 2010 VT 38, ¶¶ 3, 188 Vt. 11, 99 A.2d 677 (quotation omitted). “A court may consider evidence outside the pleadings in resolving a motion to dismiss for lack of subject matter jurisdiction, and we review these factual findings for clear error.” Id.
¶ 9. However, plaintiffs contend that the court cannot now take up the issue of subject-matter jurisdiction because: (1) defendants did not timely appeal from the trial court‘s decision not to dismiss the case for lack of subject-matter jurisdiction; (2) pursuant to Rule 23(f), the only issue this Court may consider in relation to this interlocutory appeal is the merits of class certification; and (3) defendants bore the burden of showing failure to exhaust below, and did not do so.5 grievances. Notably, plaintiffs do not argue that Jarvis, Gagnon, or Paradis—the other three named plaintiffs—have exhausted their administrative remedies, and there is no evidence of record to support such a contention.
¶ 10. We find no merit in these arguments. It was incumbent on plaintiffs, in the first instance, to file a complaint “showing that the pleader is entitled to relief.”
¶ 11. Because the issues of exhaustion and class certification are thus inextricably intertwined, defendants’ request for interlocutory appeal was not untimely. Furthermore, because the exhaustion ruling is bound up in the ruling on class certification, we conclude that it is appropriately considered in connection with an interlocutory appeal pursuant to Rule 23(f). And, in any event, issues of subject-matter jurisdiction are not subject to waiver. Rather, “[i]t is axiomatic that lack of subject matter jurisdiction of the trial court may be raised for the first time on appeal to this Court.” Town of Charlotte v. Richmond, 158 Vt. 354, 358, 609 A.2d 638, 640 (1992). As a result of our independent obligation to ensure that we act only in cases where we have subject-matter jurisdiction, we may consider such arguments on our own motion or at any time during the pendency of a proceeding; we do so now.
¶ 12. At the crux of the dispute over exhaustion is the significance of the fact that Mullinnex filed his claim in the trial court before the twenty-day periods afforded the corrections executive and the Commissioner to respond to his respective appeals had run, see DOC Grievance Rules § 5(e), and the grievance materials he submitted in connection with his superior court filing did not include evidence of any such responses. Defendants controverted Mullinnex‘s suggestion that he had exhausted his grievances by filing Turner‘s countervailing affidavit. See Conley, 2010 VT 38, ¶ 3 (noting that in reviewing ruling on dismissal for lack of subject-matter jurisdiction, only “uncontroverted factual allegations” are accepted as true). The trial court did not hold an evidentiary hearing to resolve this apparent conflict.6 See, e.g., Baird v. City of Burlington, 2016 VT 6, ¶¶ 11, 13, 201 Vt. 112, 136 A.3d 223 (noting with respect to standing, lack of which deprives court of subject-matter jurisdiction, that “to avoid an unnecessary trial, courts may require plaintiffs to prove facts essential to support standing at a preliminary hearing“); N.A.A.C.P., Boston Chapter v. Harris, 607 F.2d 514, 526 n.15 (1st Cir. 1979) (“To avoid an unnecessary trial, the district court may conduct a preliminary evidentiary hearing on standing or other issues of justiciability.” (emphasis added)). Taking all uncontroverted factual assertions as true, see Conley,
2010 VT 38, ¶ 3,
¶ 13. To understand the bearing of this circumstance on our conclusions regarding exhaustion, we look to the policies and principles underlying the exhaustion requirement. We have previously explained that “[t]he term ‘exhaustion’ is used to describe both the judge-made common-law doctrine and a statutory direction that judicial review is available only if specified administrative procedures are first employed.” Stone v. Errecart, 165 Vt. 1, 4, 675 A.2d 1322, 1325 (1996). Exhaustion is required pursuant to statutory direction where “specifically mandate[d]” by the Legislature. Id. But where the Legislature “has not clearly required exhaustion, sound judicial discretion governs.” Id. (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by statute on other grounds,
¶ 14. “This court has consistently held,” as a “long-settled rule of judicial administration,” “that when administrative remedies are established by statute or regulation, a party must pursue, or ‘exhaust,’ all such remedies before turning to the courts for relief.” Jordan v. State, 166 Vt. 509, 511-12, 702 A.2d 58, 60 (1997). The rule “serves the dual purposes of protecting the authority of the administrative agency and promoting judicial efficiency.” Id. at 512, 702 A.2d at 60 (citing McCarthy, 503 U.S. at 145). To allow complainants to bypass their administrative remedies deprives “the parties and the courts [of] the benefit of the administrative agency‘s experience and expertise,” and denies “the agency the opportunity to cure its own errors.” Pratt v. Pallito, 2017 VT 22, ¶ 14, 204 Vt. 313, 167 A.3d 320. “Hence, we generally will not interfere with an agency‘s decisions regarding issues within its legislatively permitted jurisdiction unless and until all administrative remedies have been invoked.” Luck Bros., Inc. v. Agency of Transp., 2014 VT 59, ¶ 20, 196 Vt. 584, 99 A.3d 997 (quotation omitted). “Indeed, exhaustion of administrative remedies is a presumed requirement, and the burden is on the party seeking to bypass the administrative process to show that it fits within an exception to this general rule.” Id.
¶ 15. Here, the trial court found that Mullinnex had exhausted his administrative remedies because he “appear[ed] to have submitted the necessary forms to comply with the appeals process.” But compliance with the DOC‘s administrative-grievance procedures requires more than submission of each form in the appropriate sequence; rather, it necessitates filing the required forms and then waiting for either an agency response or the expiration of the time allotted for the same by rule. The well-settled purposes underlying the common-law exhaustion requirement are not served by rote submission of documents, rapidly followed by an appeal before the agency has occasion to respond. Rather, in order for the review process—and, ipso facto, the common-law exhaustion requirement—to have meaning, the agency must be afforded the opportunity to cure its own errors and to weigh in on the issues at stake, giving courts the benefit of the agency‘s expertise. See Pratt, 2017 VT 22, ¶ 14. Therefore, in order to bypass the exhaustion requirement, Mullinnex bore the burden of showing that his circumstances “fit[] within an exception to this general rule.” Luck Bros., Inc., 2014 VT 59, ¶ 20. The trial court specifically considered two such exceptions, unavailability and substantial compliance. For the reasons set forth below, we conclude that—on the limited record before the trial court—Mullinnex failed to show either exception is appropriately applied here.
¶ 16. With respect to unavailability, the trial court noted that, “[t]o the extent the purported failure to exhaust lies with the absence of a response or decision from the DOC administrators, the court would deem the DOC grievance procedure ‘unavailable’ to . . . Mullinnex.” In support of this conclusion, the court cited the report and recommendation of a federal magistrate judge in Morales v. Burke, No. 5:17-cv-124-gwc-jmc, 2019 WL 277591, at *4 (D. Vt. Jan. 22, 2019), adopted by Morales v. Newton, No. 5:17-cv-124, 2019 WL 2996434, at *1 (D. Vt. Jul. 9, 2019). However, as the trial court itself observed, in Morales, summary judgment for institutional defendants was unwarranted because a “question of fact existed as to [the] prisoner‘s failure to exhaust where she had filed forms in accordance with the DOC grievance procedure, waited the requisite amount of time under Directive 320.01, and DOC administrators neither responded to the grievances, nor signed, dated and timed the grievance forms as required by same.” (Emphasis added.) Indeed, in support of this conclusion, the federal magistrate judge observed that
courts in the Second Circuit have generally agreed with the proposition that administrative remedies may be deemed unavailable when the prison fails to timely respond to a grievance. This conclusion makes sense because a prisoner who has complied with all of the administrative requirements and made a good-faith effort to exhaust should not be denied the opportunity to pursue his [or her] grievance in federal court simply because administrative decision makers have failed to respond to the grievance.
Id. (alterations, citations, and quotations omitted). This rationale is plainly inapplicable here because Mullinnex neither sought to invoke the expedited timeline applicable to emergency grievances nor waited for the requisite amount of time for
¶ 17. The trial court also made note of a superior court decision declining to dismiss on exhaustion grounds where a prisoner-plaintiff complied “substantially,” but not “strictly,” with the DOC‘s grievance rules. See Davis v. Marcoux, No. 10-1-16 Cncv, 2016 WL 9453672, at *2 (Vt. Super. Ct. Dec. 29, 2016), https://www.vermontjudiciary.org/sites/default/files/documents/2017-6-27-1.pdf [https://perma.cc/4G3F-9G4S] (finding plaintiff “did not strictly comply with DOC‘s grievance regulations” because he did not wait until the corrections executive issued a decision before appealing to the Commissioner, and did not wait until the Commissioner issued a decision before filing a Rule 75 complaint in civil court, but declining to dismiss the complaint for failure to exhaust because plaintiff “substantially complied with the grievance process“). Neither the trial court here nor the trial court in Davis offered further case law supporting this conclusion, which we find unpersuasive. “The exhaustion doctrine is designed to ensure that a grievance is fully explored and litigated before the administrative body possessing the pertinent experience and expertise in the subject area; the doctrine thus serves to preserve the authority of the administrative body, and to promote judicial efficiency.” Rennie v. State, 171 Vt. 584, 585, 762 A.2d 1272, 1275 (2000) (mem.) (affirming dismissal for failure to exhaust where plaintiff‘s efforts “did not satisfy the prerequisites, or the purposes, of the exhaustion doctrine“). It benefits neither plaintiffs, defendants, nor the law for courts to consider an issue without benefit of its full development before the relevant agency. See McCarthy, 503 U.S. at 145 (“Exhaustion concerns apply with particular force . . . when the agency proceedings in question allow the agency to apply its special expertise.“). Whatever may constitute “substantial compliance,” it is not manifested through the procedural course followed by Mullinnex here.
¶ 18. For these reasons, the trial court abused its discretion in determining, on the record before it, that Mullinnex exhausted his administrative remedies. As a result, the threshold requirement of the vicarious-exhaustion doctrine—exhaustion by at least one member of the class—is unmet. Therefore, the question of whether the doctrine is appropriately applied in this jurisdiction is not properly before us. And because we determine that the courts are thus without subject-matter jurisdiction, we do not reach defendants’ challenges to the merits of the trial court‘s class certification.7
Reversed.
FOR THE COURT:
Associate Justice