United States District Court, D. Rhode Island
ROOSEVELT L. WHITE Plaintiff,
MAGISTRATE JOHN F. MCBURNEY III, et al, Defendant.
MEMORANDUM AND ORDER
S. McElroy, United States District Judge.
Court rules today on a Motion to Dismiss (ECF 42) the
plaintiffs Amended Complaint (ECF 7) in an action brought
pursuant to 42 U.S.C. §1983. Plaintiff is a state
prisoner, confined at the Adult Correctional Institutions
(ACI) in Cranston, Rhode Island, who sued a panoply of state
officials including many Department of Corrections personnel
as well as the Department itself, the then-Attorney General
of Rhode Island, the presiding state Magistrate, and the
State of Rhode Island. Accepting an earlier Report and
Recommendation (ECF 5), the Court dismissed all claims except
those against defendants Billy Bagones and Nuno Figuredo,
both correctional officers sued in their individual
gist of the Complaint is that Officers Bagones and Figuredo
helped federal authorities solicit Mr. White to cooperate in
what would have been a sting operation involving drug buys,
but then retaliated against him at the ACI when he refused to
cooperate. Mr. White alleges that the retaliation took the
form of instigating a false charge against him that resulted
in his being criminally prosecuted, demoted from medium
security to high security, and kept in segregation for
earlier Report and Recommendation granted Mr. White I.F.P.
status and found that his Complaint, should he amend to
proceed against the two defendants only in their individual
capacities (which he did), survived a preliminary screening
under 28 U.S.C.§§ 1915(e)(2) and 1915(A). However,
the Magistrate cautioned that Mr. White's Complaint would
subsequently have to survive "plausible claim"
scrutiny on a Motion to Dismiss for failure to state a claim
for relief, should one be filed (ECF 5 at p. 6).
time has come.
STANDARD OF REVIEW
survive a Motion to Dismiss under Fed.R.Civ. P. 12(b)(6), a
plaintiff must set forth a "plausible claim." That
means s/he must "plead[s] factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. ... The plausibility
standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a
defendant has acted unlawfully" Ashcroft v.
Iqbal, 566 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868, (2009). The reviewing court must assume the
truth of all "well-pleaded facts and give the plaintiff
the benefit of all reasonable inferences therefrom."
Thomas v. Rhode Island, 542 F.3d 944 (1st
that Mr. White's Amended Complaint does not state a
plausible claim for relief. Mr. White described, in
sufficient detail, what happened to him. He was serving a
sentence when he was approached by the two defendants who
told him that federal authorities suspected a local attorney,
with whom Mr. White had a relationship, of dealing drugs.
They wanted him to participate in some drug buys. From the
beginning, while Mr. White was willing to
"cooperate" with federal law enforcement, he
maintained he was not willing to participate in drug buys.
Over the course of the next several years, he continued to be
pressured by the defendants and, contemporaneously
experienced a number of adverse events which he says were
engineered by the defendants as retaliation for his refusal
to cooperate in the way that they wanted. He was moved from
medium security to high security, he was kept in segregated
confinement for long periods, he faced unfriendly
Classification Boards on which defendant Bagones sat, and he
was prosecuted for what he claims was a fabricated charge of
sexual assault. That fabrication, he complains, caused him
additional time in segregation and to be prosecuted as a
violator of a previously imposed probationary term.
Magistrate found, these allegations surmount some legal
There is no question that the refusal to cooperate in an
investigation can be a protected activity that may satisfy
the first element of a § 1983 retaliation claim.
Mearin v. Dohman, 533 Fed.Appx. 60, 62-63
(3rd Cir. 2013). Further, the complaint coherently
alleges that defendants Figuredo and Bagones took adverse
actions - arranging for the bringing of fabricated sexual
assault charges - for the purpose of causing Plaintiff
wrongly to be classified as a sexual predator with enemies
and to be held in High Security.
Report and Recommendation (ECF 5), p. 6.
Mr. White does not succeed, however, is in backing up his
allegations with sufficient factual content to permit an
inference of liability on the part of the defendants. Like
the plaintiff in Schatz v. Republican State Leadership
Committee, 669 F.3d 50 (1st Cir. 2012), Mr.
White uses the right "buzzwords," but they are
simply legal conclusions. In Schatz, the plaintiff
alleged that he was falsely accused, that the defendants
failed to investigate, and that they conjured up
"imaginary wrongs that he had supposedly done as a
selectman." Id. at 53. Mr. White's
Complaint suffers from the same infirmity found there.
White includes ample factual allegations showing that the
defendants were very invested in his prospective cooperation,
his allegations concerning who was responsible for
the adverse consequences he suffered, and what they did to
accomplish them, fail to assert any personal knowledge and
fail to describe specific facts. He states that defendant
Bagones got a woman who was awaiting trial for robbery to
claim he had assaulted her, and that Figuredo and Bagones
"set this all up." But he does not relate how he
learned what defendant Bagones allegedly did, nor what the
two defendants did to "set this all up." He states
that on July 24, 2016, after he returned from church,
"Billy Bagones and Nuno have me placed in segregation,
calling it Pending Investigation, " but he includes
no specific details of what they did to accomplish
that, or even that he has personal knowledge of some action
on their part that resulted in his being placed in
segregation. On another occasion, after he was told at an
August 24, 2016 Classification Board that he would be
returned to Medium Security, Mr. White alleges that he
"found out" that defendant Bagones stopped that
from happening; again, there is a failure to allege any
specific facts of ...