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Bergeron v. Mackie

United States District Court, W.D. Michigan, Southern Division

October 20, 2016

PAUL A. BERGERON, Plaintiff,
v.
THOMAS MACKIE et al., Defendants.

          OPINION

          Paul L. Maloney United States District Judge.

         This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, Plaintiff's action will be dismissed for failure to state a claim.

         Discussion

         I. Factual allegations

         Plaintiff Paul A. Bergeron presently is incarcerated at the Bellamy Creek Correctional Facility (IBC), though the actions about which he complains occurred while he was housed at the Oaks Correctional Facility (ECF). Plaintiff sues the following ECF officials: Warden Thomas Mackie; Deputy Wardens T. Ball and P. Sharp; Inspectors (unknown) Spencley, (unknown) Schiebner, and (unknown) Riggs; Resident Unit Managers M. Surbrook and (unknown) Thomas; Lieutenant (unknown) Bromley; Sergeant (unknown) Youndt; Corrections Officers (unknown) Pinkerton, (unknown) McColl, C. Guzikowski, and D. Black; Prisoner Counselor J. Erway; Doctor Robert Crompton; and Nurses (unknown) Briskie, R. Lamb, and D. Swickley.

         The instant case is the third action that Plaintiff has filed in this Court. In Bergeron v. Washington et al., 1:16-cv-476 (W.D. Mich.), [1] Plaintiff sued 63 Defendants, claiming in a conclusory fashion that he had been repeatedly harassed, threatened, abused and tortured at various MDOC facilities, including IBC. With the exception of then-MDOC Director Heidi Washington, Plaintiff failed to name any Defendant in the short body of his complaint. The Court dismissed the action for failure to state a claim on June 3, 2016. (1:16-cv-476, PageID.253-257.)

         In Bergeron v. Washington et al., No. 1:16-cv-460 (W.D. Mich.), Plaintiff brought a second largely conclusory complaint against 81 officials at ECF and IBC, including 17 of the 18 Defendants named in the instant action. Plaintiff generally alleged in Case No. 1:16-cv-460 that he was being harassed as a sex offender, that he had been threatened in front of staff by a prisoner, that his grievances were being ignored, that he was being discriminated against, that he was being subjected to retaliation, and that he was being subjected to cruel and unusual punishment. He described only one incident with specificity. According to his allegations, Plaintiff misbehaved on one occasion by covering his cell window with a mattress. When he would not remove it, members of the response team came to his cell, sprayed him twice with a chemical agent, entered the cell, roughly placed Plaintiff in handcuffs, beat him, and squeezed and twisted his right hand until his wrist and finger broke. Plaintiff added that the Defendants had prevented him from showering to remove the chemical spray, permitting him only to wash out his eyes for about 90 seconds. Plaintiff contended that his wrist was placed in an ace bandage, but no x-rays were taken until two months later, revealing a healed fracture. (1:16-cv-460, PageID.12-13.) In an opinion and judgment issued on May 13, 2016, the Court dismissed Plaintiff's complaint, holding that Plaintiff's allegations against the only Defendants named in the body of the complaint (including Defendant Mackie) were based solely on supervisory liability or failures to respond to grievances, which were insufficient to support a claim under § 1983. (1:16-cv-460, PageID.47-48.) The Court held that Plaintiff's retaliation claims were wholly conclusory and that the allegations against Defendant Homrich did not allege a constitutional violation. The Court dismissed Plaintiff's remaining claims against the other Defendants, because Plaintiff had failed to attribute any of the factual allegations to any of the named Defendants.

         Plaintiff now brings a somewhat more specific complaint. He continues to make conclusory allegations of retaliation and “abusive misconduct” over a period of years and of disregard and cover-up of such conduct by supervisory employees, including Defendants Mackie, Ball, Sharp, Spencley, Schiebner, and Riggs. (Compl., ECF No. 1, PageID.6.) He also alleges that Defendants Surbrook, Bassett, Erway, Pinkerton, and Bromley either mishandled grievance responses or failed to take action based on Plaintiff's complaints and grievances about other officers. As he did in Case No. 1:16-cv-460, Plaintiff again complains about the single incident during which he was extracted from his cell. This time, however, he specifies the Dated: March 20, 2015. In addition, as he did in Case No. 1:16-cv-460, he names Defendants Youndt, McColl, Guzikowski and Black as Defendants in the action. But this time, Plaintiff actually describes how these Defendants were involved in the use of excessive force in spraying him twice with chemical agent, beating him, breaking his wrist, and intentionally overtightening his restraints. Also in this case, in addition to naming Defendant Nurses Briskie, Lamb and Swickley, he alleges how these nurses were involved in his prior claim of inadequate health care. For the first time, Plaintiff also sues Defendant Dr. Crompton, alleging that Crompton failed to look at Plaintiff's wrist when he was on rounds in the segregation unit.

         Plaintiff claims that Defendants violated his rights under the Eighth Amendment by using excessive force and failing to adequately treat his serious medical needs or by failing respond to his complaints about Eighth Amendment violations. Plaintiff also alleges that Defendant Surbrook violated his rights under the First Amendment by refusing to provide free postage for his complaint to the Michigan State Police, and that Defendants Ball, Sharp, Spencley and Schiebner violated his First Amendment rights by not responding to his complaints about Surbrook's denial of postage.

         II. Failure to state a claim

         A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff's allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability requirement, ' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

         A. Res Judicata

         Upon review of the two complaints, the Court concludes that the majority of Plaintiff's claims in this lawsuit are barred by the res judicata effect of this Court's decision in Case No. 1:16-cv-460. The ...


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