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White v. McBurney

United States District Court, D. Rhode Island

June 6, 2018

ROOSEVELT L. WHITE, Plaintiff,
v.
MAGISTRATE JOHN F. MCBURNEY, III, PETER C. KILMARTIN, KIMBERLY AHERN, ROBERT F. MCNELIS, JEFFREY ACETO, PATRICIA COYNE-FAGUE, JAMES WEEDEN, MATTHEW KETTLE, A.T. WALL, BILLY BAGONES, NUNO FIGUREDO, STATE OF RHODE ISLAND, and DEPARTMENT OF CORRECTIONS, Defendants.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         On May 9, 2018, Plaintiff Roosevelt L. White, an inmate at the Adult Correctional Institutions (“ACI”), filed a pro se handwritten complaint against the State of Rhode Island; the Rhode Island Department of Corrections (“RIDOC”); a Rhode Island judge, Magistrate John F. McBurney, III; two Rhode Island prosecutors, Attorney General Peter C. Kilmartin and Special Assistant Attorney General Kimberly Ahern; a private attorney who acted as Plaintiff's defense counsel, Robert F. McNelis; and seven senior RIDOC officials. ECF No. 1 at 1. All defendants are sued in their official and individual capacities. Id. Along with his complaint, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”) and a motion to appoint counsel, ECF Nos. 2, 3, both of which have been referred to me for determination.

         Based on my review of the IFP application, I have concluded that Plaintiff has satisfied the requirements of 28 U.S.C. § 1915(a)(2), and his IFP motion will be granted by a separate order issued today. However, because of the IFP application and Plaintiff's status as a prisoner, this case is subject to preliminary screening under 28 U.S.C. §§ 1915(e)(2) and 1915A. For the reasons that follow, I recommend that, except for the retaliation claims against defendants Nuno Figuredo and Billy Bagones, the other defendants should be dismissed for failure to state a claim and, as to the judge and the prosecutors, because those defendants are immune from suit. The analysis follows.

         I. BACKGROUND

         Plaintiff has filed a disjointed and rambling complaint, which, even when leniently read, [1]fails to tell a coherent story. It begins with the allegation that Plaintiff was convicted in 2015 and sentenced to fifteen years to serve in High Security. ECF No. 1 at 3. Then it jumps back to 2014, when Plaintiff alleges he was incarcerated following a violation of his conditions for possessing a controlled substance while driving a car owned by “Atty. Robert, ” presumably defendant Robert McNelis. Id. at 3 ¶ 1. Plaintiff asserts the presiding judicial officer (defendant Magistrate John F. McBurney, III) and an unnamed prosecutor told Plaintiff's attorney what they “‘want' me to serve, ” and that Plaintiff's attorney (presumably defendant McNelis), for unspecified reasons, did not do an “adequate job” in defending. Id. at 3 ¶ 2. Plaintiff demanded new counsel and a hearing, but a hearing was not held in the timeframe originally mentioned by Magistrate McBurney. Id. at 3 ¶¶ 3-4. The complaint does not reveal what happened with the violation.

         The complaint picks up the thread in November 2014 and alleges that, when Plaintiff was “back at A.C.I., ” he was approached by defendants Nuno Figuredo and Billy Bagones, both alleged to be RIDOC investigators, about cooperating with the FBI. ECF No. 1 at 3 ¶¶ 5-8. The purpose of the cooperation is unclear, including whether it was somehow related to “Roberts contacts with other inmates, ” about which he alleges Figuredo asked him. Id. at 3 ¶ 6. The complaint alleges that Plaintiff believed that cooperation would lead to his getting released, id. at 3 ¶ 9, rightly as the proposal was approved by Magistrate McBurney and the prosecutor. Id. at 3 ¶¶ 10-11. Plaintiff cooperated as required but was uncomfortable doing drug buys; he told defendants Figuredo and Bagones, “it is not are deal.” Id. at 3 ¶ 14. The complaint alleges that “Robert is still Complainants lawyer knows nothing of Fed op.” Id. at 3 ¶ 12.

         The next event in the sequence appears to be a new charge - described in the complaint as a “new 32(f) for sexual assault” - prosecuted by defendant Ahern. Id. at 3 ¶¶ 15-16. This paragraph of the complaint adds an oblique observation that the “old 32(f)” was “not mentioned.”[2] Id. at 3 ¶ 15. According to the complaint, this prosecutor told the judge (defendant McBurney) that Plaintiff had admitted the charge; when Plaintiff demanded a hearing, the judge refused. Id. at 3 ¶¶ 17-18. While Plaintiff was held at the ACI on this charge, defendants Figuredo and Bagones allegedly began to retaliate against him. Id. at 3 ¶ 19. Plaintiff also alleges he was the subject of disciplinary proceedings for a sexual assault on an inmate for which he received thirty-two days in segregation, and that the charges were dropped and Plaintiff cooperated “to the fullest” in the investigation. Id. at 4 ¶ 20. It is impossible to ascertain whether the sexual assault mentioned in ¶ 20 is the same as the one that was the basis for the “new 32(f), ” referenced in ¶ 15. The complaint alleges that “[defendants Figuredo and Bagones] have a frake [sic] investigation they used a sexual assault on a cell mate . . . to justify downgrade to H.S.C.”[3] ECF No. 1 at 4 ¶ 20.

         The next set of allegations relate to Plaintiff's filing of a post-conviction challenge (unclear to what), which included a claim of ineffective assistance of counsel. Id. at 4 ¶ 21. Defendants Figuredo and Bagones told him to drop it. Id. He presumably did not because the complaint alleges that his post-conviction petition resulted in a reduction of his sentence to “time served.” Id. at 4 ¶ 25; ECF No. 1-1 at 2. While the petition was pending, Plaintiff was reclassified to High Security; the complaint charges that defendants Figuredo and Bagones “are even on Complainants Classification hearings on record to have him held in H.S.C. by a level 2 enemy.” ECF No. 1 at 4 ¶ 22. The complaint also asserts that they threatened Plaintiff and told him that they “had a Women from D.O.C. Women's” press sexual assault charges. Id. at 4 ¶¶ 22-24.

         Despite his apparent success with his post-conviction petition, at least as to the length of the sentence, the complaint alleges that Plaintiff remained incarcerated, held in High Security because he had been classified as a predator. Id. at 4 ¶¶ 26, 28. According to the attachments to the complaint, on September 13, 2016, defendant James Weeden (RIDOC's assistant director) confirmed that Plaintiff was classified to be held in High Security based on his “enemy list, ” which Plaintiff “refused to sign off on, ” as well as on his participation in “sexual acts at Medium Security.” ECF No. 1-5 at 2. Defendant Weeden further advised that Plaintiff would be transferred out of High Security at the next scheduled hearing (presumably once the enemy was gone). Id. Also attached is a memorandum from Defendant Aceto acknowledging Plaintiff's grievance demanding that an investigator of the “Special Investigations Unit” be directed to speak with him, as well as the receipt of calls from Plaintiff's family, and advising that redundant grievances making the same demand will not be responded to and could result in discipline. ECF No. 1-4 at 2.

         The remainder of the RIDOC defendants (A.T. Wall, James Weeden, Matthew Kettle, Patricia Coyne-Fague and Jeffrey Aceto) are sued solely because they “didn't respond to my requests for help from retaliation.” ECF No. 1 at 4 ¶ 27.

         The complaint seeks only money damages; it does not pray for declaratory or injunctive relief from any of the defendants. Id. at 12.

         II. STANDARD OF REVIEW

         The legal standard for dismissing a complaint for failure to state a claim pursuant to §§ 1915(e)(2) and 1915A is the same used when ruling on a Rule 12(b)(6) motion to dismiss. Hodge v. Murphy, 808 F.Supp.2d 405, 408 (D.R.I. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         III. ...


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