United States District Court, D. Rhode Island
ROOSEVELT L. WHITE, Plaintiff,
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.
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
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.
has filed a disjointed and rambling complaint, which, even
when leniently read, 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.
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.
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.” 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.” ECF No. 1 at 4 ¶ 20.
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.
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
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
complaint seeks only money damages; it does not pray for
declaratory or injunctive relief from any of the defendants.
Id. at 12.
STANDARD OF REVIEW
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.