Lebeau v. Mass. Dep't of Corr. State Agency
| Decision Date | 02 March 2017 |
| Docket Number | No. 15-CV-11213-PBS,15-CV-11213-PBS |
| Parties | Frank Paul LeBeau, Jr., Plaintiff, v. Massachusetts Department of Corrections State Agency,.et,al.; Luis Spencer, Commissioner of Correction; Gary Roden, Superintendent MCI-Norolkf; Jarrett T. Zwicker, Correctional officer MCI-Norfolk Defendants. |
| Court | U.S. District Court — District of Massachusetts |
REPORT AND RECOMMENDATION ON DEFENDANT DEPARTMENT OF CORRECTION'S MOTION TO DISMISS (DKT. 39) AND DEFENDANTS' MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT (DKT. 57)
Pro se prisoner Frank Paul LeBeau Jr. ("the plaintiff") contends that the defendants -- the Department of Correction (DOC) and certain former and/or current DOC employees -- violated his 14th Amendment rights by allowing dangerous conditions to persist within the prison at MCI-Norfolk. The plaintiff seeks monetary damages and injunctive relief under 42 U.S.C. § 1983. The defendants have filed motions to dismiss and/or for summary judgment. Because I conclude that there was insufficient service of process on the individual defendants and that the plaintiff's claims are moreover either barred or without merit, I recommend that the defendants' motions be allowed.
The plaintiff arrived at MCI-Norfolk in August of 2008. (Compl. ¶ 11). Once there, the plaintiff was harassed by a few inmates who threatened to cause the plaintiff serious physical harm. (Compl. ¶ 11). The harassment continued until March 26, 2012. (Compl. ¶ 12). Correctional staff, including Officer Zwicker, were aware of the situation. (Compl. ¶ 12).
On March 26, 2012, the plaintiff was seriously beaten in his cell by his cellmate, who was one of the inmates who had harassed him since his arrival at the prison. (Compl. ¶ 15). The plaintiff's left side of his face was swollen and bruised, and his entire body was in pain. (Compl. ¶ 16). Currently, the plaintiff suffers from psychological trauma and sleep deprivation, and is receiving medical and mental health treatment. (Compl. ¶ 16). The plaintiff was subsequently transferred to NCCI-Gardner. (Compl. ¶ 22).
The amended complaint advances two claims under 42 U.S.C. § 1983 alleging 14th Amendment violations.2 It is not entirely clear from the complaint what distinguishes the two claims but the plaintiff provided some clarification at oral argument. Count One alleges that three former DOC employees, former DOC Commissioner Luis S. Spencer (Spencer), former MCI-Norfolk Superintendent Gary Roden (Roden) and former MCI-Norfolk Correctional Officer Jarret T. Zwicker (Zwicker), were deliberately indifferent to a substantial risk of serious injury from inmate-on-inmate assault at MCI-Norfolk.
In contrast, Count Two relates principally to a specific event on March 26, 2012, in which the plaintiff's cellmate assaulted the plaintiff in their cell. The amended complaint alleges that defendant Zwicker's and "defendant[s'] management['s]" [sic] failure to take steps to prevent the assault and failure to properly intervene in the ongoing assault on March 26, 2012 amounts to deliberate indifference.
On March 24, 2015, the plaintiff filed a complaint naming Spencer, Roden and Zwicker as defendants. The U.S. Marshals Service (USMS) attempted to effect service on the defendants on the plaintiff's behalf but were unsuccessful; all three summonses were returned unexecuted. (Dkts. 14-16). The summonses were subsequently reissued but the docket does not reflect whether they were ever served or returned. (Dkt. 26).
Almost a year later, on February 24, 2016, the plaintiff filed an amended complaint which named the same three individuals and the DOC as defendants. (Dkt. 27). The plaintiff subsequently sent the Court a letter which was interpreted as a request for an extension of time to serve the amended complaint. (Dkts. 28-29). The Court found good cause to allow an extension of time and summonses were issued for all four defendants for the amended complaint. (Dkt. 29-30).
The USMS successfully served the amended complaint on Zwicker3 and on the DOC (Dkt. 31, 32), but was unable to effect service on Spencer or Roden because they were no longer employed by the DOC.4With respect to Spencer, the Receipt and Return of Service reflects that the USMS spoke to David Rentsch, a DOC representative, on April 27, 2016, and was told that the DOC's legal department would not accept service on Spencer's behalf. (Dkt. 33). The USMS apparently tried to serve Spencer personally on May 2 and May 18, 2016, but did not succeed. (Dkt. 33). With respect to Roden, Rentsch similarly informed the USMS that the DOC's legal department would accept service for the current DOC Commissioner but would not accept service for former or current DOC employees. (Dkt. 34). Following failed attempts by the USMS to personally serve Roden on May 12, May 23, and June 2, 2016, the summons was returned unexecuted. (Id.).
On July 22, 2016, the DOC filed a motion to dismiss the amended complaint on the ground that it is immune from suit under the Eleventh Amendment. (Dkt. 39-40). On October 3, 2016, defendants Spencer, Roden, Turco and Medeiros filed a motion to dismiss and/or for summary judgment on the amended complaint. (Dkt. 57). They argue that the plaintiff failed to effect proper service. They argue also that his claims fail on the merits because (1) the plaintiff failed to exhaust his administrativeremedies, (2) the complaint fails to state a claim, and (3) the defendants were not deliberately indifferent to a significant risk of serious injury. (Dkt. 58).
The DOC argues that it is shielded from suit for claims brought pursuant to 42 U.S.C. § 1983. The Court agrees, for two separate but related reasons. First, 42 U.S.C. § 1983 provides that "'(e)very person' who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages." Imbler v. Pachtman, 424 U.S. 409, 417 (1976) (emphasis added). It is well established that states and officials acting in their official capacities are not 'persons' subject to suit under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Consequently, the DOC, as an arm of the state, cannot be sued because it is not a person. Schmitt v. Massachusetts Dept. of Corrections, No. 05-10573-RWZ, 2007 WL 2026482, at *2 (D. Mass. July 10, 2007) (). Similarly, "the DOC, as an arm of the state, enjoys Eleventh Amendment immunity from suit in federal court." Cryer v. Clarke, No. 09-10238-PBS, 2012 WL 6800791, at *6 (D. Mass. September 7, 2012). The amended complaint should be dismissed against the DOC.
The individual defendants move to dismiss and/or for summary judgment.
[A] Rule 12(b)(6) motion to dismiss and a Rule 56 summary judgment motion share a functional nexus.... One fundamental difference between the two motions lies in the scope of the court's consideration. The grounds for a Rule 12(b)(6) dismissal comprise only the pleadings and no more. A Rule 56 summary judgment allows the court to consider matters "outside" the pleadings such as "depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any."
Fleming v. Lind-Waldock & Co., 922 F.2d 20, 23 (1st Cir. 1990) (internal citations omitted). Because resolution of the motion here does not require the Court to look beyond the pleadings, the motion will be treated as a Rule 12(b)(6) motion to dismiss. See generally Rasheed v. Bissonnette, No. 14-10378-FDS, 2015 WL 2226255, at *11 (D. Mass. May 12, 2015).
Courts reviewing a motion to dismiss under Rule 12(b)(6) must apply the notice pleading requirements of Rule 8(a)(2). Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2004). Under Rule 8(a)(2), a complaint need only include a short and plain statement of the claim showing that the pleader is entitled to relief and giving the defendant fair notice of the grounds for the plaintiff's claim. Conley v. Gibson, 355 U.S. 41, 47 (1957). Therefore, "a Court confronted with a Rule 12(b)(6) motion 'may dismiss a complaint only if it is clear that no reliefcould be granted under any set of facts that could be proved consistent with the allegations.'" Hernandez at 66 citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). To show that one is entitled to relief, the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court must "accept as true all well-pleaded facts set forth in the complaint and draw all reasonable inferences therefrom in the pleader's favor." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Artuso v. Vertex Pharmaceuticals, Inc., 637 F.3d 1, 5 (1st Cir. 2011)). On a motion to dismiss, courts may consider only the "facts alleged in the complaint and exhibits attached thereto." Freeman v. Town of Hudson, 714 F.3d 29, 35 (1st Cir. 2013).
The defendants argue that the plaintiff failed to effect proper service of the amended complaint because, simply, they were never served. "Before a federal court may exercise personal jurisdiction over a defendant, proper service of process must be effected." Egan v. Tenet Health Care, --- F. Supp. 3d ---, 2016 WL 3561866, at *3 (D. Mass. June 27, 2016) citing Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). A defendant must be served within 90 days after the complaint is filed, or the court "must dismiss the action without prejudice... or order that service be made within a specified time." Fed. R. Civ. P. 4(m). If the plaintiff can show good cause for failure toeffect service within that time, "the court must extend the time...
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