United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Jerome Tibbs (“Tibbs”) brings this lawsuit
against Rebekah E. Samuels (“Samuels”), William
H. Roach (“Roach”), Paul A. Marrone
(“Marrone”), Jennifer Sanderson
(“Sanderson”), Kurt DeMoura
(“DeMoura”), Mark Reilly (“Reilly”),
Edward M. Mack (“Mack”), Dinarte V. Rego
(“Rego”), Robert E. Stork (“Stork”),
John Doe I a/k/a Officer Borges (“Borges”), all
officers of the Massachusetts Department of Corrections
(“DOC”); James Saba (“Saba”),
superintendent of the Massachusetts Correctional Institution,
Cedar Junction (“Cedar Junction”); and Luis S.
Spencer (“Spencer”), former commissioner of the
DOC (collectively, the “Defendants”). D. 14
¶¶ 2-14. The Defendants have moved for summary
judgment on the remaining claims against them. D. 124. For
the reasons discussed below, the Court ALLOWS IN PART and
DENIES IN PART the Defendants' motion.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996))
(internal quotation mark omitted). The movant “bears
the burden of demonstrating the absence of a genuine issue of
material fact.” Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir. 2000); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant meets
his burden, the non-moving party “may not rest upon
mere allegations or denials [in] his pleading[s], ”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986), but “must, with respect to each issue on which
[he] would bear the burden of proof at trial, demonstrate
that a trier of fact could reasonably resolve that issue in
[his] favor, ” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As
a general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court “view[s] the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
Court draws the following facts from the Defendants'
statement of material facts, D. 127, Tibbs's opposition
to the Defendants' motion for summary judgment,
135, and supporting documents and these facts are undisputed
unless otherwise noted.
relevant times, Tibbs was an inmate in the custody of the
DOC. D. 127-1 at 2. Spencer was the DOC Commissioner, but he
retired from his position in 2014. Id. at 27. Saba
was the Superintendent of Cedar Junction. Id. at 31.
Samuels, Sanderson, Stork, and DeMoura were all DOC sergeants
at Cedar Junction. Id. at 35, 49, 64, 131. Roach,
Marrone, and Borges were DOC officers at Cedar Junction.
Id. at 40, 44, 70. Reilly was a captain at Cedar
Junction. Id. at 54. Rego and Mack were both
lieutenants at Cedar Junction. Id. at 58, 61.
January 28, 2013, while housed in the Special Management Unit
(“SMU”) in Ten Block at Cedar Junction, Samuels
issued Disciplinary Report 273635 against Tibbs alleging that
she had observed Tibbs “trash” his cell with
pudding and Styrofoam cups. Id. at 73. Disciplinary
Report 273635 was reviewed by Samuels's Supervisor,
Lieutenant Mack, Shift Commander Jeffrey M. Grimes, and
Disciplinary Officer DeMoura. Id. Tibbs pled guilty
to the report on February 4, 2013. Id. at 4, 73.
Tibbs, however, claims that the January 28 incident occurred
because Samuels making unwanted sexual advances to him. D.
137 at 38-41. On January 31, 2013-three days after
Disciplinary Report 273635 issued-Tibbs filed a formal
grievance (Grievance 64173) attesting to the alleged unwanted
sexual advances by Samuels. D. 127-1 at 84. Tibbs also
claimed in the same grievance, and in an affidavit submitted
to this Court, that Samuels threatened him, took his
property, spit on his sheets and destroyed his eyeglasses
when he rebuffed her advances. D. 127-1 at 84; D. 136 ¶
4. According to Tibbs, Samuels threatened that she would set
Tibbs up “to get a new case” (i.e., frame him so
that he would be disciplined further and potentially have his
prison sentence lengthened) and that he better hope he goes
home soon (as he was scheduled to be released). D. 127-1 at
84; D. 136 ¶ 4.
64173 was filed with Sergeant Stork, the Institutional
Grievance Coordinator, D. 127-1 at 84, who then referred it
to Superintendent Saba's office. Id. at 65. Saba
then assigned Special Investigator Scott Black to conduct an
investigation about the allegations encompassed in the
grievance. Id. at 85. Following the completion of the
investigation, Black concluded that Tibbs's allegations
against Samuels in Grievance 64173 were not sustained.
Id. at 90. That is, there was insufficient evidence
to either prove or disprove the claims. Id. The
grievance was then referred back to Stork who formally denied
it. Id. at 66, 84.
the grievance investigation was pending, however, Tibbs and
Samuels were involved in a separate-but allegedly
related-incident. D. 136 ¶¶ 24-27. On February 12,
2013, Marrone and Roach escorted Tibbs from his cell in the
SMU in Ten Block to the medical triage unit, which is located
two flights up from Tibbs's cell. D. 127-1 at 8-9. A
landing area in the middle of the stairs separates the two
floors. Id. at 9. At some point during the medical
examination, Samuels-who was in the vicinity of the medical
unit-switched places with Roach. D. 136 ¶¶ 25, 27.
That is, Marrone and Samuels were present during Tibbs's
medical evaluation and Roach was no longer in the triage
unit. Id. During the medical examination, which
involved the nurse popping some sort of skin condition on
Tibbs, Tibbs asked the nurse if she “was into S and
M” and whether she “like[d] popping
things.” D. 127-1 at 8, 10, 101. After this exchange,
Samuels ended the medical examination. Id. at 36,
101. Tibbs was then removed from the triage unit and escorted
down the first flight of stairs toward his cell. Id.
at 36, 46.
is a dispute regarding what occurred during the transport of
Tibbs from the medical unit to his cell. Officers Samuels and
Marrone claim Tibbs suddenly turned and head butted Sergeant
Samuels's shoulder and then began to struggle with both
Samuels and Marrone. Id. at 36, 46, 101. According
to this account, Samuels and Marrone called out an emergency
code and other officers, including Officer Roach, responded
to subdue Tibbs. Id. at 36, 109. To gain control
over Tibbs as he struggled, the officers pushed Tibbs against
the wall, then to the ground, where additional restraints
were placed on his legs by Officer Roach. Id. at
36-37. Tibbs, however, provides a different account of the
events that transpired. He submits that while being escorted
back to his cell by Marrone, Samuels called out from the
second floor and told Marrone to stop walking. D. 136 ¶
27. At this point, Marrone and Tibbs were standing on the
landing between the first and second floors. Id.
Samuels then charged down the stairs and attacked Tibbs.
Id. This attack was unprovoked. Id.
Following the attack, Tibbs “witnessed” Samuels
“coach[ ]” both Roach and Marrone about what to
write in the incident reports they would be submitting to the
DOC. Id. ¶ 31.
filed Disciplinary Report 274610 against Tibbs for the
February 12, 2013 altercation. D. 127-1 at 101. This report
was reviewed by Sergeant Samuels's supervisor and a shift
commander on February 12, 2013. Id. at 102. It was
also reviewed by Disciplinary Officer DeMoura on February 13,
2013, who, pursuant to applicable regulations, assigned the
report a number of offenses. Id. at 102, 133-34.
Because of the nature of these offenses and the potential of
a sentence to the Department Disciplinary Unit
(“DDU”), the DOC scheduled a DDU hearing.
Id. at 79. The DOC placed Tibbs on awaiting action
status in the Special Management Unit (“SMU”) in
Ten Block and received notice of the DDU hearing date of May
1, 2013. Id. at 18, 80. In preparation for the
disciplinary hearing, Tibbs filed a Request for
Representation and/or Witness Form, as well as an Evidence
Requested by Inmate Form. Id. at 138-39. Tibbs was
provided with everything he requested with the exception of
photos and video, as they did not exist, and log records from
Ten Block showing what time a specific staff member signed in
to work, as his name was not listed on the log. Id.
at 140. He was also denied his witness request because the
witness could not be identified. Id.
appointed Sanderson as the Special Disciplinary Officer for
the hearing and Captain Reilly served as the Special Hearing
Officer (“SHO”). Id. at 51-52, 56. As
Special Disciplinary Officer in the matter, Sanderson
presented the case at the hearing against Tibbs. Id.
at 51-52, 56, 81-82. After considering the evidence, Reilly
found Tibbs guilty of Offense 2-03, Assault on a Staff
Member, Contract Employee or Volunteer, and dismissed all
other charges as duplicative. D. 142-44. Tibbs was sanctioned
with sixteen months in the DDU. Id. at 144. Tibbs
appealed this decision, id. at 150-52, but his
appeal was ultimately denied, id. at 153.
brought this action against the Defendants on April 26, 2013.
D. 1. The Defendants initially moved for a judgment on the
pleadings. D. 56. The Court allowed the motion as to a number
of claims and dismissed some of the counts. D. 87. The
parties proceeded with discovery. Defendants have now moved
for summary judgment as to the remaining claims. D. 124. The
Court heard the parties on the pending motions and took the
matter under advisement. D. 144.
Retaliation and Conspiracy Claims (Counts I &
Count I: Retaliation in Violation of the First Amendment
claims Samuels, Roach, Marrone, Rego and Mack retaliated
against him for filing of Grievance 64173. D. 14 ¶¶
20, 57-62. Specifically, Tibbs claims that as a result of the
grievance, Samuels “unlawfully assaulted, battered, and
used force against [him], ” and that Roach and Marrone
subsequently filed false disciplinary reports to justify
Samuels's conduct. Id. ¶¶ 58-59. As
for Rego and Mack, Tibbs claims they retaliated against him
by destroying property in his cell. Id. ¶¶
46-48, 60. To prevail on a retaliation claim, Tibbs must show
that “1) he engaged in constitutionally protected
conduct, 2) prison officials took adverse action against him,
3) with the intent to retaliate against him for engaging in
the constitutionally protected conduct and 4) he would not
have suffered the adverse action ‘but for' the
prison officials' retaliatory motive.”
Schofield v. Clarke, 769 F.Supp.2d 42, 46-47 (D.
Mass. 2011); see McDonald v. Hall, 610 F.2d 16, 18
(1st Cir. 1979).
has demonstrated that he engaged in constitutionally
protected conduct. The undisputed facts demonstrate that on
January 31, 2013, Tibbs filed Grievance 64173 alleging that
Samuels made unwanted sexual advances toward him and, when he
rebuffed those advances, she threatened him, took his
property, spit on his sheets, and broke his eyeglasses. D.
127-1 at 84. The Defendants do not challenge the fact that
the filing of the grievance is protected activity. Indeed,
such a challenge would be futile. See Hannon v.
Beard, 645 F.3d 45, 48 (1st Cir. 2011) (concluding that
in a retaliation case filing a grievance is “plainly .
. . protected activity”); Graham v. Henderson,
89 F.3d 75, 80 (2d Cir. 1996) (noting that “retaliation
against a prisoner for pursuing a grievance violates the
right to petition government for the redress of grievances
guaranteed by the First and Fourteenth Amendments”).
establish the remaining three elements, Tibbs must show that
he suffered an adverse action as a result of engaging in this
protected activity and that such adverse action would not
have happened “but for” the officers'
retaliatory motive. McDonald, 610 F.2d at 18. An
action is considered “adverse” for retaliation
purposes if it would “deter a person of ordinary
firmness” from exercising the right at stake. Bart
v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). Because
it is particularly difficult to obtain direct evidence of a
retaliatory state of mind, a plaintiff can satisfy this
element by introducing circumstantial evidence that supports
a reasonable inference of such retaliatory motive. See
Beauchamp v. Murphy, 37 F.3d 700, 711 (1st Cir. 1994)
(Bownes, J., dissenting); Ferranti v. Moran, 618
F.2d 888, 892 (1st Cir. 1980). Such circumstantial evidence
may include the temporal proximity between the
plaintiff's exercise of his right and the defendant's
alleged retaliatory act. LaFauci v. N.H. Dep't of
Corr., No. Civ. 99-597-PB, 2005 WL 419691, at *7 (D.N.H.
February 23, 2005) (citing Ferranti, 618 F.2d at
892; McDonald, 610 F.2d at 18); see Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir.1995). Still,
“[t]he mere chronology alleged in the complaint, while
sufficient to withstand a motion to dismiss, cannot get
plaintiff to the jury once defendants have produced evidence
of a legitimate reason” for their conduct. Layne v.
Vinzant, 657 F.2d 468, 476 (1st Cir. 1981).
Court also recognizes that “certain threats or
deprivations are so de minimis that they do not rise to the
level of being constitutional violations.”
Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir.
1999) (en banc). Adverse acts are considered de
minimis when they “cause an inmate only a
‘few days of discomfort, ' impose ‘a [single]
minor sanction, ' or impose an otherwise constitutional
restriction on the inmate.” Starr v. Dube, 334
Fed.Appx. 341, 342 (1st Cir. 2009) (unpublished) (quoting
Morris, 449 F.3d at 685-86) (alteration in
original). “In making this determination, the
court's inquiry must be ‘tailored to the different
circumstances in which retaliation claims arise, '
bearing in mind that ‘[p]risoners may be required to
tolerate more . . . than average citizens, before a
[retaliatory] action taken against them is considered
adverse.'” Davis v. Goord, 320 F.3d 346,
353 (2d Cir. 2003) (quoting Dawes v. Walker, 239
F.3d 489, 493 (2d Cir. 2001)) (alterations in original).
Tibbs attests that in retaliation for his filing of Grievance
64173, Samuels beat him and Marrone and Roach helped Samuels
cover up this beating. D. 136 ¶¶ 27-34. The
Defendants and Tibbs agree that on February 12, 2013, Tibbs
was present in the medical triage unit to undergo medical
treatment for an unrelated issue. D. 136 ¶ 24; D. 127-1
at 101. At some point, Tibbs's medical treatment visit
was terminated and he was escorted back to his cell. D. 136
¶ 27; D. 127-1 at 101. The reason for the termination of
the medical visit is disputed. Compare D. 127-1 at
101 with D. 136 ¶¶ 27-29. Regardless, both
sides agree that during the Defendants' escort of Tibbs
back to his cell, some sort of altercation occurred.
Defendants state that Tibbs suddenly turned and head butted
Samuels's shoulder and then began to struggle with both
Samuels and ...