Nash v. Coxon

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-115



Douglas A. Nash                              Supreme Court

     v.                                      On Appeal from
                                             Windsor Superior Court
Michael Coxon, Superintendent,
Windsor Correctional Facility                September Term, 1990


Alan W. Cheever, J.

Michael Rose, St. Albans, for plaintiff-appellant

Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
   Assistant Attorney General, Waterbury, for defendant-appellee


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.



     GIBSON, J.   Plaintiff, an inmate at the Windsor Correctional Facility,
appeals from a trial court decision affirming a denial by the Department of
Corrections of plaintiff's request to pay the cost of a correspondence
course in paralegal education.  We affirm.
     In February 1987, plaintiff requested that the Department of
Corrections assist him in pursuing the course, and late in that month
defendant Michael Coxon, the superintendent at the Windsor Correctional
Facility,  denied the request.  Plaintiff subsequently filed a grievance
with the Commissioner of Corrections, who upheld defendant Coxon's decision.
After making additional requests for similar help in August 1987, plaintiff
filed the instant petition for review of governmental action in the Windsor
Superior Court; after the filing, defendant Coxon once more advised plain-
tiff that he could not approve the request.
     The trial court found that plaintiff had not enrolled in courses
offered by the Windsor Correctional Facility, but had "participated in
creative writing" at the facility.  The court found that plaintiff did not
enroll in the facility's psychology course because he believed that his own
independent studies in that field placed him beyond the level of the course.
The court considered and rejected plaintiff's argument that he was denied
funding for the correspondence course because of other legal actions he had
undertaken through the court system.
     The court made findings on the educational opportunities at Windsor.
It found that the Department offered courses of study that met the require-
ments of 28 V.S.A. { 1(b), (FN1) and that defendant Coxon and the Department had
"made available to the plaintiff industrial arts and college-level
courses."  The court specifically found:
               Although the plaintiff has obtained a GED and
               has improved his spelling, he has not used the
               industrial arts courses that are available nor
               has he attended the college-level courses that
               have been made available to inmates.

     The court found that defendant had acted within his discretion in
denying plaintiff's request.  The present appeal followed.
     Plaintiff concedes that "[b]road discretion must be granted to
correctional authorities to determine what mode of treatment will best
serve the individual inmate."  Wetmore v. Smith, 130 Vt. 618, 623, 298 A.2d 567, 570 (1972).  Plaintiff seizes on the phrase "individual inmate" and
concludes that the educational programs offered "must bear a relationship
to the individual needs of the inmates," citing Cooper v. Gwinn, 298 S.E.2d 781, 790 (W.Va. 1981).
     Plaintiff confuses the responsibility of the Department to treat
inmates in accordance with individual needs with the right of an individual
inmate to demand any treatment the inmate believes is appropriate.  The
point of Wetmore is that the Department has broad discretion to decide what
is most effective for inmates, who may complain only if they can demonstrate
that such discretion has been abused.  What we said of a quasi-judicial
board in Vincent v. Vermont State Retirement Board, 148 Vt. 531, 536, 536 A.2d 925, 929 (1987) applies to the Department's response in the present
case:
          This Court will not interfere with the decision of an
          administrative board made in the performance of a
          discretionary duty in the absence of a showing of abuse
          of discretion resulting in prejudice to one of the
          parties.

     No such abuse of discretion has been shown.  In Cooper v. Gwinn, the
programs available at the West Virginia correctional facility came close to
a total denial of educational opportunities to the inmates.  The court in
that case concluded
          that a real and substantial effort to implement
          appropriate rehabilitative programs is not currently
          being pursued at the West Virginia State Prison for
          Women at Pence Springs.  There is no ongoing vocational
          training program.  Department of Corrections officials
          have not applied to the State Department of Education
          for available vocational education grants.  Access to
          college courses is not afforded to inmates at the
          present time.  There is no meaningful work release or
          job apprenticeship program.  The few attempts that have
          been made in these areas are so limited in scope that it
          cannot honestly be said that they bear a rational rela-
          tionship to the rehabilitative purpose of our
          corrections system.

Cooper, 298 S.E.2d  at 791.
   The trial court in the present case found that the opportunities at the
Windsor facility were substantial, although plaintiff had not fully taken
advantage of them, and that the denial of plaintiff's petition was not based
solely on claims of economics.
     There is a considerable difference between a facility with virtually no
educational or rehabilitative programs, as in Cooper, and one that has a
reasonable selection of such programs but declines to expend funds to add
new options requested by specific inmates.
     Beyond arguing abuse of discretion in declining to fund plaintiff's
chosen course of study, plaintiff asserts as a general proposition that the
Department must "address the individual educational needs of each and every
one of its inmates."  We agree that the Department should examine the needs
of every inmate as an individual. (FN2) But it is another matter to assert that
the Department may properly address those needs only by agreeing to what the
inmate perceives to be appropriate.  As the New Hampshire Supreme Court said
in an analogous case:
            Were we to recognize a right on the part of inmates to
          a particular rehabilitative program or permit judges to
          devise individualized plans for rehabilitation, the al-
          ready difficult task of sentencing would become unman-
          ageable.  Removed from the actual operation of the
          prison and lacking experience in correctional and reha-
          bilitative methodologies, the judiciary is ill-suited to
          assume the responsibilities of prison administration.
          Moreover, an ad hoc approach to the assignment of reha-
          bilitative or educational opportunities would require
          disproportionate allocation of limited resources among
          inmates.  At best, this arrangement would simply sub-
          stitute the judgment of a court for that of the legis-
          lature and prison officials, with no guarantee of net
          benefit.

State v. Evans, 127 N.H. 501, 507, 506 A.2d 695, 699 (1985).

     Affirmed.




                                        FOR THE COURT:


                                        ______________________________
                                        Associate Justice



FN1.    28 V.S.A. { 1(b) states in relevant part:
            The department shall formulate its programs and
          policies recognizing that almost all criminal offenders
          ultimately return to the community, and that the tradi-
          tional institutional prisons fail to reform or rehabil-
          itate, operating instead to increase the risk of
          continued criminal acts following release.
     Though not cited by the trial court, 28 V.S.A. { 102(c) states in
relevant part:
             The commissioner [of corrections] is charged with
          the following responsibilities:
               . . . .
               (4) To establish facilities and develop programs to
          provide inmates at correctional facilities with such
          educational and vocational training deemed to be appro-
          priate to the treatment of the inmates; . . . .

FN2.    The Department's "Policy and Operating Procedures," issued February
5, 1982 and annexed to the State's brief, states that:
          [e]ach offender enrolled in an educational program will
          have an individualized educational plan. . . . Based on
          what is available to each offender, the instructor will
          draw up a formal individual learning plan with recom-
          mendations for implementation.  (Emphasis added.)