Roseboro v. Gillespie
| Decision Date | 24 May 2011 |
| Docket Number | No. 10 Civ. 3269(AJP).,10 Civ. 3269(AJP). |
| Citation | 791 F.Supp.2d 353 |
| Court | U.S. District Court — Southern District of New York |
| Parties | Michael A. ROSEBORO, Plaintiff,v.Officer GILLESPIE, Counselor Wanda Wingate & Officer Wingate, Defendants. |
OPINION TEXT STARTS HERE
Michael A. Roseboro, Bastrop, TX, pro se.Cristine Irvin Phillips, United States Attorney Office, New York, NY, for Defendant.
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, 29 L.Ed.2d 619 (1971),1 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.
Roseboro was an inmate at the Metropolitan Correctional Center (“MCC”) from August 12, 2008 to December 7, 2009.
In January—February 2009, Roseboro was housed in and worked as an orderly in MCC's 11–South Unit. : .) 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. 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.) 2
Additionally, according to Roseboro, Officer Gillespie told Roseboro that she read his mail 3 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.) 4 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.) 5
In late February 2009, Roseboro reported Officer Gillespie's conduct to his counselor, Wanda Wingate. 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.) 6
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.) 7 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.)
On June 1, 2009, Officer Serena Wingate, Counselor Wingate's niece, was working at 11–North Unit where Roseboro was housed. : .) At about 4:00 p.m., Officer Wingate conducted an inmate count at 11–North Unit. 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. (Roseboro 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.) 8 Inside the SHU, Lieutenant Gonzalez interviewed Roseboro and conducted an investigation before validating the charges in Officer Wingate's incident report. (Defs. &...
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