Johnson v. Gorczyk, No. S1404-00 CnC (Norton, J., July 6, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]




STATE OF VERMONT                                      SUPERIOR COURT
Chittenden County, ss.:                           Docket No. S1404-00 CnC



JOHNSON

v.

GORCZYK



                                  ENTRY

       Prisoner seeks relief through V.R.C.P. Rule 75 from a Department of
Corrections disciplinary action taken against him while he was
incarcerated. Convicted of kidnaping and murder in 1990, Prisoner is
currently serving a 60-year sentence in a Virginia corrections facility. On
May 19, 2000, after losing his prison job, Prisoner became visibly upset
and agitated toward a prison counselor. Following a report and hearing,
Prisoner was ordered into segregation for 15 days for violating the facility’s
disciplinary code. Five months later, Prisoner filed this motion.
       This court originally dismissed Prisoner’s complaint for lack of
subject matter jurisdiction because Prisoner had long since been released
from segregation. Prisoner appealed, and the Vermont Supreme Court
remanded for a fuller consideration of any negative consequences flowing
from the action. On remand, Corrections has filed a motion for summary
judgment. Plaintiff has not responded to this motion in any manner.

       Corrections argues that Prisoner has suffered no adverse effects from
his disciplinary action. The evidence shows the following:

$      Prisoner did not lose any automatic good time credit under 28
       V.S.A. § 811(a).
$      The disciplinary action was not registered on Prisoner’s “permanent
       record.”
$      The parole board will not be told of this incident when petitioner
       becomes eligible for parole in 2033.
$      There has been no change to Prisoner’s custody level.
$      There is no evidence that the inmates or corrections officers consider
       Prisoner to be a “troublemaker” as a result of this incident.
$      Prisoner lost some discretionary good time credit under 28 V.S.A. §
       811(b) because he could not participate in a rehabilitative program
       while he was in segregation.

       With the exception of the last fact, the evidence shows no negative
consequences as a result of this disciplinary action. As to the exception, the
law is clear that Prisoner has no liberty interest in such discretionary credit,
and no due process right to review. Conway v. Gorczyk, 

, 379
(2000). This means that the only “lasting” negative effect from Prisoner’s
disciplinary action was the loss of a few discretionary credits to which Rule
75 provides no right of relief. This leads the court to the same conclusion
as before. Prisoner has no right of review or relief as a matter of law.

    Based on the foregoing, the Department of Corrections’ Motion for
Summary Judgment is Granted. Case is Dismissed.

       Dated at Burlington, Vermont________________, 2005.




                                          ________________________
                                          Judge