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Tibbs v. Samuels

United States District Court, D. Massachusetts

March 28, 2017

JEROME TIBBS, Plaintiff,
v.
REBEKAH E. SAMUELS, et al., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Standard of Review

         The 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).

         III. Factual Background

         The Court draws the following facts from the Defendants' statement of material facts, D. 127, Tibbs's opposition to the Defendants' motion for summary judgment, [1] D. 135, and supporting documents and these facts are undisputed unless otherwise noted.[2]

         At all 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.

         On 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.

         Grievance 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.[3] 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.

         While 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.

         There 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.

         Samuels 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.

         The DOC 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.

         IV. Procedural History

         Tibbs 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.

         V. Discussion

         A. Retaliation and Conspiracy Claims (Counts I & XI)

         1. Count I: Retaliation in Violation of the First Amendment

         Tibbs 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).

         Tibbs 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”).

         To 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).

         The 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).

         Here, 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 ΒΆΒΆ 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 ...


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