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LeBeau v. Massachusetts Department of Corrections State Agency

United States District Court, D. Massachusetts

March 2, 2017

Frank Paul LeBeau, Jr., Plaintiff,
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.


          DONALD L. CABELL, U.S.M.J.

         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.

         I. Background

         A. Relevant Facts[1]

         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).

         B. The Amended Complaint

         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.

         C. Procedural History

         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 Zwicker[3]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.[4] With 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.).

         D. The Defendants' ...

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