'ermont Superior Court Filed 02/27/25 Washington Chat
VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 24-CV-03452 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org
Brian Davidson v Nicholas Deml et al
Opinion and Order on the State's Motion to Dismiss
In his amended complaint, Inmate Brian Davidson claims that the Department of
the Corrections (DOC) is failing to give him medications that were prescribed to him in
the community and that are medically necessary, all in violation of 28 V.S.A. § 801. The
DOC has filed a motion to dismiss for lack of subject matter jurisdiction, arguing that
Mr. Davidson has failed to exhaust his administrative remedies. Mr. Davidson
acknowledges the general obligation to exhaust the grievance process before filing suit,
and he concedes that he filed three grievances and never pursued any to completion. He
argues, however, that the DOC's responses to the latter two grievance processes
foreclosed any need to proceed with those grievances further.
The current grievance system policy proceeds as follows. If the inmate and staff
are unable to resolve the issue without "engaging in the documented informal complaint
process," an informal complaint is filed. DOC Policy #320, Procedural Application § B.1.
An informal complaint consists of the inmate's description of the issue and the inmate's
"Proposed Solution." Grievance Form 1. "If a plan of resolution is not agreed upon," the
inmate may file a formal grievance. DOC Policy #320, Procedural Application J C.
Order Page 1 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al Following an investigation, responsible staff will indicate one of the following
outcomes:
i. Denied: There is no evidence to support the basis of the grievance.
ii. Meritorious in part: There is evidence to support part of the grievance.
iii. Resolved: The issue has been acknowledged and a solution is in progress or has been enacted.
Id. ¶ C.6. “Grievants dissatisfied with a grievance decision may file an appeal with the
Commissioner within 10 business days of receiving the grievance decision.” Id. ¶ E. The
Commissioner’s decision concludes the process. Id. ¶ E.6.
Evidence of 3 grievance processes are in the record: grievances
#MVRCF000000000632 (submitted April 26, 2024), # MVRCF000000001036 (submitted
July 14, 2024), and #MVRCF000000001040 (submitted July 16, 2024).
The records related to the April 26 grievance reveal that Mr. Davidson filed a
complaint with DOC that he characterized as an emergency to the effect that he had
been denied his prescription for Vyvanse and needed it. His proposed solution was that
he should immediately be given his Vyvanse. The following day, the staff response was
to reiterate the treatment plan already in place that did not include Vyvanse. Though
that effectively was a denial, staff changed the grievance disposition to “Resolved.” The
next day, Mr. Davidson escalated by filing a formal grievance, reiterating his need for
Vyvanse. The staff response again was to reiterate his treatment plan, which did not
include Vyvanse. The disposition of his grievance again was changed to “Resolved.” Mr.
Davidson did not appeal to the Commissioner.
Order Page 2 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al The records related to the July 14 grievance reveal that Mr. Davidson complained
that he needed prescriptions that he came to prison with and had been denied. His
proposed solution was one word: “lawsuit.” He indicated that his complaint was an
emergency. The staff response was to indicate that the complaint was not an emergency
and the reference to a lawsuit was considered to be an inappropriate threat to coerce
staff. The grievance disposition was changed to “Rejected.” Mr. Davidson escalated his
complaint to a formal grievance. Without additional staff response, the grievance
disposition again was changed to “Rejected.” Mr. Davidson did not appeal to the
Commissioner.
The records related to the July 16 complaint reveal that Mr. Davidson complained
that he was being refused two medications previously prescribed to him. His proposed
resolution includes his own statement that “I need to exhaust all internal administrative
remedies before I can file a lawsuit.” He indicated that his complaint was an emergency.
The staff response was that there was no emergency, and the complaint otherwise was
referred to medical staff. On July 19 the medical staff response was: “Hi Mr. Davidson,
you were seen by the Psychiatric Prescriber on 07/04/2024. She wrote you were out for 6
weeks and did not continue your stimulants while out. You were ordered Prozac 10mg
every morning. Thank you.” The grievance disposition was changed to “Resolved.” Mr.
Davidson did not escalate by filing a formal grievance, and he did not attempt to appeal
to the Commissioner.
Mr. Davidson plainly did not exhaust the grievance process during any of these
grievances. See Pratt v. Pallito, 2017 VT 22, ¶ 15, 204 Vt. 313, 319 (“A trial court lacks
Order Page 3 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al subject matter jurisdiction to hear a case if a party fails to exhaust administrative
remedies.”). His arguments against that conclusion are not convincing.
In opposition to dismissal on that basis, he argues that he had no obligation to
exhaust the July 14 process because there was no good cause for the denial of his
grievance. He says, “By rejecting Mr. Davidson’s grievance without cause, DOC has
made any further administrative remedies unavailable to him. He should not be
expected to continue filing grievances that are going to be rejected without reason.” This
argument is pays no heed to the salutary purposes of the exhaustion requirement. “The
purpose of the exhaustion requirement is ‘to afford the parties and the courts the benefit
of the administrative agency’s experience and expertise, and to afford the agency the
opportunity to cure its own errors.’” Pratt, 2017 VT 22, ¶ 14, 204 Vt. 313, 318–19. If Mr.
Davidson thought that staff improperly denied his formal grievance, he could have
appealed to the Commissioner. He did not.
He also claims that there was no need to file a formal grievance following his July
16 informal grievance because staff marked his informal grievance: “Resolved.” In his
view, the “resolved” status meant that the relief he sought was underway, and he should
not have to appeal when he is told that he will be given the relief that was requested.
This argument might have had some traction if the record in any way supported it.
Instead, the record is clear that, even if “denied” was the more accurate grievance
disposition language, Mr. Davidson’s requests for certain medications plainly were
denied, repeatedly, and the use of the word “resolved” did not create any confusion. All of
Mr. Davidson’s requests for medications were consistently denied every time staff
responded to an informal complaint or a formal grievance. And in the April 26 process,
Order Page 4 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al his informal complaint was denied but labeled “Resolved.” He nevertheless knew to file a
formal grievance in response. Moreover, he indicated that the sole reason he was filing
the July 16 grievance was to exhaust his administrative remedies. Inexplicably, he then
did not.
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'ermont Superior Court Filed 02/27/25 Washington Chat
VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 24-CV-03452 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org
Brian Davidson v Nicholas Deml et al
Opinion and Order on the State's Motion to Dismiss
In his amended complaint, Inmate Brian Davidson claims that the Department of
the Corrections (DOC) is failing to give him medications that were prescribed to him in
the community and that are medically necessary, all in violation of 28 V.S.A. § 801. The
DOC has filed a motion to dismiss for lack of subject matter jurisdiction, arguing that
Mr. Davidson has failed to exhaust his administrative remedies. Mr. Davidson
acknowledges the general obligation to exhaust the grievance process before filing suit,
and he concedes that he filed three grievances and never pursued any to completion. He
argues, however, that the DOC's responses to the latter two grievance processes
foreclosed any need to proceed with those grievances further.
The current grievance system policy proceeds as follows. If the inmate and staff
are unable to resolve the issue without "engaging in the documented informal complaint
process," an informal complaint is filed. DOC Policy #320, Procedural Application § B.1.
An informal complaint consists of the inmate's description of the issue and the inmate's
"Proposed Solution." Grievance Form 1. "If a plan of resolution is not agreed upon," the
inmate may file a formal grievance. DOC Policy #320, Procedural Application J C.
Order Page 1 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al Following an investigation, responsible staff will indicate one of the following
outcomes:
i. Denied: There is no evidence to support the basis of the grievance.
ii. Meritorious in part: There is evidence to support part of the grievance.
iii. Resolved: The issue has been acknowledged and a solution is in progress or has been enacted.
Id. ¶ C.6. “Grievants dissatisfied with a grievance decision may file an appeal with the
Commissioner within 10 business days of receiving the grievance decision.” Id. ¶ E. The
Commissioner’s decision concludes the process. Id. ¶ E.6.
Evidence of 3 grievance processes are in the record: grievances
#MVRCF000000000632 (submitted April 26, 2024), # MVRCF000000001036 (submitted
July 14, 2024), and #MVRCF000000001040 (submitted July 16, 2024).
The records related to the April 26 grievance reveal that Mr. Davidson filed a
complaint with DOC that he characterized as an emergency to the effect that he had
been denied his prescription for Vyvanse and needed it. His proposed solution was that
he should immediately be given his Vyvanse. The following day, the staff response was
to reiterate the treatment plan already in place that did not include Vyvanse. Though
that effectively was a denial, staff changed the grievance disposition to “Resolved.” The
next day, Mr. Davidson escalated by filing a formal grievance, reiterating his need for
Vyvanse. The staff response again was to reiterate his treatment plan, which did not
include Vyvanse. The disposition of his grievance again was changed to “Resolved.” Mr.
Davidson did not appeal to the Commissioner.
Order Page 2 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al The records related to the July 14 grievance reveal that Mr. Davidson complained
that he needed prescriptions that he came to prison with and had been denied. His
proposed solution was one word: “lawsuit.” He indicated that his complaint was an
emergency. The staff response was to indicate that the complaint was not an emergency
and the reference to a lawsuit was considered to be an inappropriate threat to coerce
staff. The grievance disposition was changed to “Rejected.” Mr. Davidson escalated his
complaint to a formal grievance. Without additional staff response, the grievance
disposition again was changed to “Rejected.” Mr. Davidson did not appeal to the
Commissioner.
The records related to the July 16 complaint reveal that Mr. Davidson complained
that he was being refused two medications previously prescribed to him. His proposed
resolution includes his own statement that “I need to exhaust all internal administrative
remedies before I can file a lawsuit.” He indicated that his complaint was an emergency.
The staff response was that there was no emergency, and the complaint otherwise was
referred to medical staff. On July 19 the medical staff response was: “Hi Mr. Davidson,
you were seen by the Psychiatric Prescriber on 07/04/2024. She wrote you were out for 6
weeks and did not continue your stimulants while out. You were ordered Prozac 10mg
every morning. Thank you.” The grievance disposition was changed to “Resolved.” Mr.
Davidson did not escalate by filing a formal grievance, and he did not attempt to appeal
to the Commissioner.
Mr. Davidson plainly did not exhaust the grievance process during any of these
grievances. See Pratt v. Pallito, 2017 VT 22, ¶ 15, 204 Vt. 313, 319 (“A trial court lacks
Order Page 3 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al subject matter jurisdiction to hear a case if a party fails to exhaust administrative
remedies.”). His arguments against that conclusion are not convincing.
In opposition to dismissal on that basis, he argues that he had no obligation to
exhaust the July 14 process because there was no good cause for the denial of his
grievance. He says, “By rejecting Mr. Davidson’s grievance without cause, DOC has
made any further administrative remedies unavailable to him. He should not be
expected to continue filing grievances that are going to be rejected without reason.” This
argument is pays no heed to the salutary purposes of the exhaustion requirement. “The
purpose of the exhaustion requirement is ‘to afford the parties and the courts the benefit
of the administrative agency’s experience and expertise, and to afford the agency the
opportunity to cure its own errors.’” Pratt, 2017 VT 22, ¶ 14, 204 Vt. 313, 318–19. If Mr.
Davidson thought that staff improperly denied his formal grievance, he could have
appealed to the Commissioner. He did not.
He also claims that there was no need to file a formal grievance following his July
16 informal grievance because staff marked his informal grievance: “Resolved.” In his
view, the “resolved” status meant that the relief he sought was underway, and he should
not have to appeal when he is told that he will be given the relief that was requested.
This argument might have had some traction if the record in any way supported it.
Instead, the record is clear that, even if “denied” was the more accurate grievance
disposition language, Mr. Davidson’s requests for certain medications plainly were
denied, repeatedly, and the use of the word “resolved” did not create any confusion. All of
Mr. Davidson’s requests for medications were consistently denied every time staff
responded to an informal complaint or a formal grievance. And in the April 26 process,
Order Page 4 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al his informal complaint was denied but labeled “Resolved.” He nevertheless knew to file a
formal grievance in response. Moreover, he indicated that the sole reason he was filing
the July 16 grievance was to exhaust his administrative remedies. Inexplicably, he then
did not.
Though misusing these disposition labels could create potential confusion in some
circumstances, they are not magic words that determine whether a grievant should
proceed to the next step of the process. Substance matters. The inmate is directed to file
a formal grievance if the informal complaint does not generate an “agreed upon” “plan of
resolution.” DOC Policy #320, Procedural Application ¶ C. None of the three grievance
processes ever arguably resulted in any agreed upon plan of resolution. The inmate is
directed to file an appeal with the Commissioner if “dissatisfied with a [formal] grievance
decision.” Id. ¶ E. The record is clear as to two fundamental points: 1. Mr. Davidson
has never been satisfied with any grievance decision; and 2. He did not take advantage of
all of the administrative appeal stops offered by the DOC to vet his grievances.
Mr. Davidson failed to exhaust administrative remedies. The Court lacks subject
matter jurisdiction to hear this case.
Conclusion
For the foregoing reasons, the State’s motion to dismiss is granted.
Electronically signed on Wednesday, February 26, 2025, per V.R.E.F. 9(d).
_______________________ Timothy B. Tomasi Superior Court Judge
Order Page 5 of 5 24-CV-03452 Brian Davidson v Nicholas Deml et al