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Michael A. Roseboro v. Officer

May 24, 2011

MICHAEL A. ROSEBORO, PLAINTIFF,
v.
OFFICER GILLESPIE, COUNSELOR WANDA WINGATE & OFFICER WINGATE, DEFENDANTS.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:

OPINION AND ORDER

Pro se plaintiff Michael A. Roseboro brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971),*fn1 alleging that Correction Officer Aniasha Gillespie, Correction Counselor Wanda Wingate and Correction Officer Serena Wingate committed numerous retaliatory acts against him for filing prison grievances against Officer Gillespie and Counselor Wingate. (Am. Compl. at pp. 8-10, 14-21, 24-25, 28-33, 41; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 72-84, 86-90, 129-30.) Roseboro also alleges various violations of his due process rights and claims that he was subject to cruel and unusual punishment. (Am. Compl. at p. 40; Roseboro Dep. at 90-94, 97-98, 100-01, 103-04.)

Presently before the Court is defendants' motion for summary judgment, in which defendants argue that: (1) Roseboro failed to exhaust administrative remedies as required under the Prison Litigation Reform Act; (2) Roseboro fails to assert a "[p]lausible [c]laim" for retaliation, violation of his due process rights or cruel and unusual punishment; and (3) defendants are entitled to qualified immunity. (Dkt. No. 46: Notice of Motion; Dkt. No. 47: Defs. Br. at 13-24; Dkt. No. 66: Defs. Reply Br. at 1-8.)

The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 20: § 636(c) Consent Form.)

For the reasons set forth below, defendants' summary judgment motion (Dkt. No. 46) is GRANTED.

FACTS

Roseboro was an inmate at the Metropolitan Correctional Center ("MCC") from August 12, 2008 to December 7, 2009. (Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶ 1; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶ 1; Dkt. No. 62: Roseboro Aff. at p. 1.)

Roseboro's Interaction with Correction Officer Aniasha Gillespie In January - February 2009, Roseboro was housed in and worked as an orderly in MCC's 11-South Unit. (Dkt. No. 51: Gillespie Aff. ¶ 3; Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶¶ 9, 14; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶¶ 9, 14.) During that time period, Aniasha Gillespie worked in 11-South Unit as a correction officer. (Gillespie Aff. ¶¶ 1-2; Defs. & Roseboro Rule 56.1 Stmts. ¶ 10.)

According to Roseboro, on February 12, 2009, Officer Gillespie asked Roseboro why he was incarcerated and he told her he was accused of stealing three million dollars. (Dkt. No. 5: Am. Compl. at pp. 3 (¶ D), 8-9, 31; Roseboro Rule 56.1 Stmt. ¶ 22; Dkt. No. 62: Roseboro Aff. ¶¶ 1, 4, 38.) Officer Gillespie asked if the money was recovered and offered to get the stashed money, "take some for herself, put some on [Roseboro's] books and . . . hold on to the rest." (Am. Compl. at pp. 9-10, 31, 38; Roseboro Rule 56.1 Stmt. ¶ 22; Roseboro Aff. ¶¶ 5-6.)*fn2

Additionally, according to Roseboro, Officer Gillespie told Roseboro that she read his mail*fn3 and asked him "how could [he] tell two women [he] love[d] them." (Am. Compl. at pp. 8, 31; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 87-88; Roseboro Rule 56.1 Stmt. ¶¶ 20-21; Roseboro Aff. ¶¶ 2-3.) Two weeks later, a woman Roseboro had sent a "church tract" to informed him that someone had written the name of another woman on the tract. (Am. Compl. at pp. 8-9; Roseboro Dep. at 88; Roseboro Aff. ¶¶ 8-9, 38.)*fn4 Roseboro believed that Officer Gillespie "tampered" with his mail, and he filed numerous grievances because he felt that Officer Gillespie was "unprofessional" and committed "misconduct." (Am. Compl. at pp. 9-10, 12 (9/23/09 Grievance), 13 (12/3/09 Grievance), 31.) Roseboro claims that he filed a grievance in "early March" 2009 (Am. Compl. at p. 34; Roseboro Rule 56.1 Stmt. ¶¶ 8, 100; Roseboro Aff. ¶ 30), but Roseboro's first grievance in MCC's records against Officer Gillespie was dated October 20, 2009. (Dkt. No. 53: McFarland Aff. Ex. O: 10/20/09 Grievance; Defs. Rule 56.1 Stmt. ¶ 100.)*fn5

Roseboro's Allegations of Retaliation by Counselor Wanda Wingate In late February 2009, Roseboro reported Officer Gillespie's conduct to his counselor, Wanda Wingate. (Dkt. No. 5: Am. Compl. at pp. 14, 31-32; Dkt. No. 48: Counselor Wingate Aff. ¶ 5; Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶¶ 11, 22; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶¶ 11, 22; Dkt. No. 62: Roseboro Aff. ¶ 10.) Roseboro alleges that Counselor Wingate told him that Officer Gillespie was her "homegirl," and that Counselor Wingate "would take care of the situation." (Am. Compl. at p. 14; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 73; Roseboro Rule 56.1 Stmt. ¶ 24; Roseboro Aff. ¶¶ 11, 38.) Roseboro admits that Counselor Wingate never discouraged him from filing a grievance against Officer Gillespie, or anyone else. (Roseboro Dep. at 73, 113-14.)*fn6

Two weeks later, on March 10, 2009, Roseboro went to Counselor Wingate's office to discuss a visitor request that he had sent in a month earlier and that he felt Counselor Wingate was not processing. (Am. Compl. at pp. 14, 32; Counselor Wingate Aff. ¶¶ 13-14; Roseboro Dep. at 78-79; Defs. & Roseboro Rule 56.1 Stmts. ¶¶ 33-34; Roseboro Aff. ¶ 12.) Counselor Wingate informed Roseboro that the request was denied because the visitor, Angelina Russ, had a criminal history. (Counselor Wingate Aff. ¶ 14; Defs. Rule 56.1 Stmt. ¶¶ 31-32, 35; Roseboro Rule 56.1 Stmt. ¶ 32.) According to Counselor Wingate, Roseboro "became irate" and "yelled and punched the wall" of her office. (Counselor Wingate Aff. ¶ 15; Defs. Rule 56.1 Stmt. ¶¶ 35-36.) After Roseboro refused to leave, Counselor Wingate called for additional staff and Roseboro was taken to the Special Housing Unit ("SHU"). (Counselor Wingate Aff. ¶¶ 16-17; Defs. Rule 56.1 Stmt. ¶¶ 37-38; Roseboro Aff. ¶ 13.)

Counselor Wingate filed an incident report against Roseboro. (Counselor Wingate Aff. ¶ 18; Dkt. No. 53: McFarland Aff. Ex. C: 3/10/09 Incident Report ¶¶ 1-13; Defs. & Roseboro Rule 56.1 Stmts. ¶ 39.)*fn7 Roseboro denies yelling, punching the wall or threatening Counselor Wingate, and claims that she "wrote a false incident [report] about" him. (Am. Compl. at pp. 15, 32-33; Dkt. No. 60: Roseboro Br. at 26-27, 46-47, 56; Roseboro Rule 56.1 Stmt. ¶¶ 35-37, 39, 43-44; Roseboro Aff. ¶ 13.) As a result of Counselor Wingate's incident report, Roseboro remained in the SHU "for a couple of days." (Am. Compl. at pp. 15, 33.)

On March 12, 2009, a Unit Disciplinary Committee ("UDC") comprised of Case Manager Ivy Jenkins and Counselor Jackie Gross-Campbell found Roseboro guilty of the charges in Counselor Wingate's incident report and sanctioned Roseboro to a ninety-day loss of commissary privileges and a six-month loss of visitation privileges. (Am. Compl. at pp. 15, 33; 3/10/09 Incident Report ¶¶ 18-20; Defs. & Roseboro Rule 56.1 Stmts. ¶ 42; Roseboro Aff. ¶ 15.) Roseboro filed a grievance challenging the sanction, alleging that, although Counselor Wingate's incident report stated that Roseboro punched the walls of her office, she never told that to the responding officer. (Am. Compl. at pp. 15, 34; McFarland Aff. Ex. D: Roseboro March Grievance ¶ A; Defs. Rule 56.1 Stmt. ¶ 43.) On April 16, 2009, MCC Warden Duke Terrell sustained Roseboro's sanction.

(McFarland Aff. Ex. D: 4/16/09 Terrell Letter to Roseboro; Defs. & Roseboro Rule 56.1 Stmts. ¶ 45.) After Roseboro was released from the SHU, Counselor Wingate told him "that there were no hard feelings between" them. (Roseboro Dep. at 128-29; Defs. & Roseboro Rule 56.1 Stmts. ¶ 46.) Roseboro's Allegations of Retaliation by Officer Serena Wingate On June 1, 2009, Officer Serena Wingate, Counselor Wingate's niece, was working at 11-North Unit where Roseboro was housed. (Dkt. No. 48: Counselor Wingate Aff. ¶ 25; Dkt. No. 49: Officer Wingate Aff. ¶¶ 1-3, 21; Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶¶ 47-49; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶¶ 47-49.) At about 4:00 p.m., Officer Wingate conducted an inmate count at 11-North Unit. (Dkt. No. 5: Am. Compl. at p. 16; Officer Wingate Aff. ¶ 4; Defs. & Roseboro Rule 56.1 Stmts. ¶ 51; Dkt. No. 62: Roseboro Aff. ¶ 17.) MCC rules require that "inmates have to stand for the count and have to be standing when the officer approaches his or her cell." (Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 129-30; Defs. & Roseboro Rule 56.1 Stmts. ¶ 52.) According to Officer Wingate, Roseboro was not standing when she arrived at his cell, but rather just "lifted his bottom up without standing." (Officer Wingate Aff. ¶¶ 6-8; Defs. Rule 56.1 Stmt. ¶¶ 53-54.)

Roseboro claims that he "was in the process of standing up" when Officer Wingate approached and that she called him a "motherfucker" and said she was going to report his conduct. (Am. Compl. at p. 16, 28; Roseboro Dep. at 80-81, 129-30; Roseboro Rule 56.1 Stmt. ¶¶ 52-53, 79; Roseboro Aff. ¶ 17.) Roseboro also claims that Officer Wingate denied his requests to speak to a lieutenant. (Am. Compl. at pp. 16-17; Roseboro Dep. at 81-82; Roseboro Aff. ¶ 20.)

According to Roseboro, Officer Wingate distributed the mail after the inmate count, but withheld a letter to Roseboro from his wife. (Roseboo Dep. at 82; Roseboro Rule 56.1 Stmt. ¶ 62.) Officer Wingate only gave the letter to Roseboro after he started complaining. (Roseboro Rule 56.1 Stmt. ¶ 62.) After the mail was delivered, Lieutenant Delaney took Roseboro to the SHU for not standing during the inmate count. (Am. Compl. at p. 17; Defs. Rule 56.1 Stmt. ¶ 59; Roseboro Rule 56.1 Stmt. ¶ 60; Roseboro Aff. ¶ 21.)*fn8 Inside the SHU, Lieutenant Gonzalez interviewed Roseboro and conducted an investigation before validating the charges in Officer Wingate's incident report. (Defs. & Roseboro Rule 56.1 Stmts. ¶ 66.)

After Roseboro was taken to the SHU, Officer Wingate packed all of Roseboro's property, filled out an inventory slip and gave the property and the slip to an "internal officer" to take to the SHU property officer. (Officer Wingate Aff. ¶ 18; Dkt. No. 53: McFarland Aff. Ex. F: Inmate Personal Property Record; Defs. Rule 56.1 Stmt. ¶ 63.) When Roseboro's property was delivered to him in the SHU, his food, clothes, pictures and one of his legal binders were missing. (Defs. Rule 56.1 Stmt. ¶ 64; Roseboro Rule 56.1 Stmt. ¶¶ 63-64.)*fn9 Roseboro believes that Officer Wingate threw out his property (Roseboro Dep. at 83-84, 86), a charge she denies (Officer Wingate Aff. ¶ 20).

On June 4, 2009, a UDC comprised of Case Manager Ivy Jenkins and Counselor Wingate conducted a hearing on the charges in Officer Wingate's incident report. (Am. Compl. at pp. 17-18, 28-29; Counselor Wingate Aff. ¶¶ 20, 24; McFarland Aff. Ex. G: 6/1/09 Incident Report ¶ 21; Defs. & Roseboro Rule 56.1 Stmts. ¶ 67; Roseboro Aff. ¶¶ 22, 25.)*fn10 Roseboro alleges that, during the hearing, Counselor Wingate laughed in his face and told Case Manager Jenkins that Roseboro was guilty and that Jenkins, who chaired the UDC, should give him the "'max.'" (Am. Compl. at pp. 18, 29; Roseboro Rule 56.1 Stmt. ¶¶ 68, 72-73; Roseboro Aff. ¶¶ 25a, 26.)*fn11 The UDC sustained Officer Wingate's charges and Roseboro was sanctioned with a ninety-day loss of his commissary, phone and visit privileges. (Am. Compl. at p. 29; 6/1/09 Incident Report ¶¶ 18-20; Defs. & Roseboro Rule 56.1 Stmts. ¶ 72; Roseboro Aff. ¶ 26.)

During the hearing, Roseboro "became insolent" and cursed at Case Manager Jenkins and Counselor Wingate. (Counselor Wingate Aff. ¶ 29; McFarland Aff. Ex. H: 6/4/09 2:25 p.m. Incident Report ¶¶ 11, 19 & Ex. I: 6/4/09 Counselor Wingate Memo; Defs. Rule 56.1 Stmt. ¶ 74.) As a result, Case Manager Jenkins wrote an incident report and Roseboro was further sanctioned by another UDC. (Counselor Wingate Aff. ¶ 29; 6/4/09 2:25 p.m. Incident Report ¶¶ 1-13, 20; Defs. & Roseboro Rule 56.1 Stmts. ¶ 75.) Additionally, after the hearing, Roseboro flooded the SHU by repeatedly flushing his toilet and received additional sanctions. (McFarland Aff. Ex. J: 6/4/09 3:00 p.m. Incident Report ¶ 11; Defs. & Roseboro Rule 56.1 Stmts. ¶ 76.)*fn12

Roseboro also claims that on December 4, 2009 he saw Officer Wingate in the hallway and she gave him "a dirty look and turned her back." (Am. Compl. at pp. 20, 24.) About thirty minutes later, a lieutenant called Roseboro to his office and told him that Officer Wingate had called and alleged that Roseboro was "bothering her." (Am. Compl. at pp. 20-21, 24.) After Roseboro denied the allegation and claimed that Officer Wingate was "harassing" him, the lieutenant told Roseboro "not to worry about it." (Am. Compl. at pp. 21, 24-25.) Although Roseboro was never sanctioned for this incident, Roseboro filed a grievance against Officer Wingate, which was never addressed. (Am. Compl. at pp. 21, 23 (Roseboro December Grievance), 24-25, 26 (Roseboro 1/26/10 Letter to Warden).)

Roseboro's Claims in This Lawsuit

Broadly reading his allegations, Roseboro claims that defendants retaliated against him for filing grievances against Officer Gillespie and Counselor Wingate (Dkt. No. 5: Am. Compl. at p. 41; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 77, 86-87, 89-90; Dkt. No. 62: Roseboro Aff. ¶ 24a) by committing the following retaliatory acts: (1) Officer Gillespie wrote Roseboro's wife's name on a church tract he sent to another woman (Am. Compl. at pp. 8-9, 31; Roseboro Dep. at 88); (2) Officer Gillespie spoke with Counselor Wingate and Officer Wingate about her issues with Roseboro, which led to their retaliatory acts (Roseboro Dep. at 89); (3) Counselor Wingate failed to process Roseboro's visitor requests (Roseboro Dep. at 74, 78-79); (4) Counselor Wingate denied Roseboro's visitor request relating to Angelina Russ (Roseboro Dep. at 74-75, 77-79);

(5) Counselor Wingate wrote a false incident report alleging that Roseboro threatened her and was screaming and punching the walls of her office on March 10, 2009 (Am. Compl. at pp. 14-15, 32-33; Roseboro Dep. at 75-76); (6) Officer Wingate wrote an incident report for Roseboro failing to stand during the June 1, 2009 inmate count even though he was "in the process of standing" (Am. Compl. at pp. 16, 28; Roseboro Dep. at 80-81, 129); (7) Officer Wingate cursed at Roseboro during the inmate count (Am. Compl. at pp. 16, 28; Roseboro Dep. at 81, 129-30); (8) Officer Wingate denied Roseboro's requests to see a lieutenant after the inmate count (Am. Compl. at pp. 16-17; Roseboro Dep. at 81-82); (9) Officer Wingate withheld a letter from Roseboro's wife after the inmate count (Am. Compl. at p. 40; Roseboro Dep. at 82); (10) Officer Wingate threw out Roseboro's property after he was placed in the SHU (Roseboro Dep. at 83-84, 86); and (11) Officer Wingate "harassed" Roseboro on December 4, 2009 by telling a lieutenant that he was "bothering her" (Am. Compl. at pp. 21, 24-25).

Roseboro also claims that his due process rights were violated when (a) he lost his privileges as a result of failing to stand during the June 1, 2009 inmate court (Roseboro Dep. at 91);

(b) he was sent to a low-security prison instead of a camp (Roseboro Dep. at 92); (c) all his grievances were not addressed (Roseboro Dep. at 93-94); (d) he was prevented from calling witnesses and having a staff member present during his June 2009 disciplinary hearing (Roseboro Dep. at 98); and (e) his property was thrown out after he was sent to the SHU (Roseboro Dep. at 98).

Additionally, Roseboro claims that he was subject to cruel and unusual punishment when his privileges were taken away, when he shared a cell with "cold-blooded murderers" in the SHU, and when he was sent to a low-security prison instead of a camp. (Am. Compl. at p. 40; Roseboro Dep. at 100-101, 103.)

Roseboro claims that defendants caused him "emotional and mental distress" and seeks $250,000 in damages. (Am. Compl. at 5 (¶ V), 41.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

Rule 56(a) of the Federal Rules of Civil Procedure provides that the Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). The non-moving party normally must set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c)(1); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (At summary judgment, "[t]he time has come . . . 'to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. ...


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