NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-297
STANLEY DONALD
vs.
CAROL MICI1 & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Stanley Donald appeals from a judgment that
dismissed his civil rights complaint, and from a postjudgment
order denying his reconsideration motion. In essence, the
plaintiff alleged that he was subjected to cruel and unusual
punishment in violation of his Eighth Amendment rights while
incarcerated during the COVID-19 pandemic. A Superior Court
judge, on the defendants' pleading motions, dismissed, ruling
1Individually and as Commissioner of the Massachusetts Department of Correction.
2Commonwealth of Massachusetts; Nelson Alves, individually and as superintendent of the Massachusetts Correctional Institution at Norfolk; Wellpath LLC, identified in the operative complaint as Wellpath Medical Services; "unknown correctional staff"; and "unknown medical staff." that the plaintiff had failed to state a plausible claim for
relief. The plaintiff now argues that his allegations
adequately state a claim, and that his motion to amend the
complaint improperly was denied.3 We affirm.
1. Dismissal for failure to state a claim upon which
relief can be granted. "We review the allowance of a motion to
dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). A complaint may be dismissed for several
reasons, including for failure to state an actionable claim.
Mass. R. Civ. P. 12 (b) (6), (c), 365 Mass. 754 (1974). A claim
is not actionable, and may be dismissed on a pleading motion,
when barred by res judicata, that is, by a prior final judgment
on the merits. See, e.g., Mancuso v. Kinchla, 60 Mass. App. Ct.
558, 562 (2004). See also Restaino v. Vannah, 21 Mass. App. Ct.
907, 910 (1985) (res judicata affirmative defense ordinarily
raised by answer but judge properly considered defense on motion
to dismiss).
a. Dismissal of claims against the Commonwealth
defendants. Res judicata refers generally to both issue and
claim preclusion. Brownback v. King, 592 U.S. 209, 215 n.3
3 The plaintiff raises nine issues in his brief. The nine issues reduce down to two that we address infra. Section 1 of this memorandum and order consolidates issues I-VIII, and section 2 addresses issue IX.
2 (2021). Issue preclusion has four elements: "(1) the issue
sought to be precluded in the later action is the same as that
involved in the earlier action; (2) the issue was actually
litigated; (3) the issue was determined by a valid and binding
final judgment; and (4) the determination of the issue was
essential to the judgment." Alicea v. Commonwealth, 466 Mass.
228, 236 (2013), quoting Latin Am. Music Co. v. Media Power
Group, Inc., 705 F.3d 34, 42 (1st Cir. 2013). Here, the
plaintiff's complaint was properly dismissed for failure to
state a claim against the Commonwealth defendants because,
although the judge's order addresses the merits of the
plaintiff's Eighth Amendment claims, the issues presented are
precluded due to a class action in Superior Court, which was
resolved in 2023. See Foster vs. Mici, Mass. Super. Ct. No.
2084CV00855 (Suffolk County March 8, 2023) (docket entry 145)
(Foster class action). See also Gabbidon v. King, 414 Mass.
685, 686 (1993) ("It is well established that, on appeal, we may
consider any ground apparent on the record that supports the
result reached in the lower court" [footnote omitted]).
In 2020, a class of inmates incarcerated at Massachusetts
Department of Correction (DOC) facilities brought a class action
against the Commissioner alleging several claims, including
violations of the Eighth Amendment. See Foster v. Commissioner
of Correction (No. 1), 484 Mass. 698, 716, S.C. 484 Mass. 1059
3 (2020), S.C., 488 Mass. 643 (2021). The plaintiff here was a
member of that class.4 The class action concluded in 2023, and
the claimed Eighth Amendment violations were resolved in favor
of the defendants on summary judgment, see Mass. R. Civ. P.
56 (c), as amended, 436 Mass. 1404 (2002), on the merits of the
claims. Foster class action, supra, docket entry 145, slip op.
at 24.
Here, the first element of issue preclusion is met, as the
issue addressed in the Foster class action litigation is
identical to the Eighth Amendment claim the plaintiff makes
here. He lists four separate claims for relief in his
complaint. The claims amount to an allegation of a violation of
the Eighth Amendment regarding the care of inmates during the
COVID-19 outbreak, specifically noting the risk of contracting
4 The plaintiff disputes that he was a member of the class certified in the Foster class action matter. See Foster class action, supra, docket entry 74 (Nov. 12, 2020). The plaintiff is incorrect. The Foster class action class consisted of all Massachusetts prisoners confined at Department of Correction (DOC) facilities, excluding county jails. Id., slip op at 2. Furthermore, the subclass consisted of all those inmates who, according to the Centers for Disease Control and Prevention, are "at increased risk from COVID-19 due to their age (age 50 or older) and/or medical conditions that have been determined to increase risks from COVID-19." Id. Included amongst those conditions is type II diabetes mellitus. Here, the plaintiff continues to be incarcerated at a DOC facility, is over the age of sixty, and suffers from diabetes. Thus, the plaintiff was a member of the Foster class action class and, as such, was party to that litigation.
4 COVID-19, as well as mentioning several instances of alleged
misconduct.5 In the Foster class action, one of the specific
issues raised was whether "the increased risk of contracting
COVID-19 while in prison and the restrictions on prison
activities caused by DOC's response to COVID-19 constitute[d]
cruel and unusual punishment," i.e., a violation of the Eighth
Amendment. Foster class action, supra, docket entry 74 (Nov.
12, 2020), slip op. at 3. Thus, the issues in the Foster class
action matter and in the instant case are identical.
The second element of issue preclusion, that the issue was
actually litigated, is present as well. In the Foster class
action, there was extensive litigation regarding whether the
Eighth Amendment was violated by the DOC and others during the
COVID-19 outbreak. See Foster, 484 Mass. at 715-734, 488 Mass.
at 651-655. The Supreme Judicial Court twice analyzed the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-297
STANLEY DONALD
vs.
CAROL MICI1 & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Plaintiff Stanley Donald appeals from a judgment that
dismissed his civil rights complaint, and from a postjudgment
order denying his reconsideration motion. In essence, the
plaintiff alleged that he was subjected to cruel and unusual
punishment in violation of his Eighth Amendment rights while
incarcerated during the COVID-19 pandemic. A Superior Court
judge, on the defendants' pleading motions, dismissed, ruling
1Individually and as Commissioner of the Massachusetts Department of Correction.
2Commonwealth of Massachusetts; Nelson Alves, individually and as superintendent of the Massachusetts Correctional Institution at Norfolk; Wellpath LLC, identified in the operative complaint as Wellpath Medical Services; "unknown correctional staff"; and "unknown medical staff." that the plaintiff had failed to state a plausible claim for
relief. The plaintiff now argues that his allegations
adequately state a claim, and that his motion to amend the
complaint improperly was denied.3 We affirm.
1. Dismissal for failure to state a claim upon which
relief can be granted. "We review the allowance of a motion to
dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). A complaint may be dismissed for several
reasons, including for failure to state an actionable claim.
Mass. R. Civ. P. 12 (b) (6), (c), 365 Mass. 754 (1974). A claim
is not actionable, and may be dismissed on a pleading motion,
when barred by res judicata, that is, by a prior final judgment
on the merits. See, e.g., Mancuso v. Kinchla, 60 Mass. App. Ct.
558, 562 (2004). See also Restaino v. Vannah, 21 Mass. App. Ct.
907, 910 (1985) (res judicata affirmative defense ordinarily
raised by answer but judge properly considered defense on motion
to dismiss).
a. Dismissal of claims against the Commonwealth
defendants. Res judicata refers generally to both issue and
claim preclusion. Brownback v. King, 592 U.S. 209, 215 n.3
3 The plaintiff raises nine issues in his brief. The nine issues reduce down to two that we address infra. Section 1 of this memorandum and order consolidates issues I-VIII, and section 2 addresses issue IX.
2 (2021). Issue preclusion has four elements: "(1) the issue
sought to be precluded in the later action is the same as that
involved in the earlier action; (2) the issue was actually
litigated; (3) the issue was determined by a valid and binding
final judgment; and (4) the determination of the issue was
essential to the judgment." Alicea v. Commonwealth, 466 Mass.
228, 236 (2013), quoting Latin Am. Music Co. v. Media Power
Group, Inc., 705 F.3d 34, 42 (1st Cir. 2013). Here, the
plaintiff's complaint was properly dismissed for failure to
state a claim against the Commonwealth defendants because,
although the judge's order addresses the merits of the
plaintiff's Eighth Amendment claims, the issues presented are
precluded due to a class action in Superior Court, which was
resolved in 2023. See Foster vs. Mici, Mass. Super. Ct. No.
2084CV00855 (Suffolk County March 8, 2023) (docket entry 145)
(Foster class action). See also Gabbidon v. King, 414 Mass.
685, 686 (1993) ("It is well established that, on appeal, we may
consider any ground apparent on the record that supports the
result reached in the lower court" [footnote omitted]).
In 2020, a class of inmates incarcerated at Massachusetts
Department of Correction (DOC) facilities brought a class action
against the Commissioner alleging several claims, including
violations of the Eighth Amendment. See Foster v. Commissioner
of Correction (No. 1), 484 Mass. 698, 716, S.C. 484 Mass. 1059
3 (2020), S.C., 488 Mass. 643 (2021). The plaintiff here was a
member of that class.4 The class action concluded in 2023, and
the claimed Eighth Amendment violations were resolved in favor
of the defendants on summary judgment, see Mass. R. Civ. P.
56 (c), as amended, 436 Mass. 1404 (2002), on the merits of the
claims. Foster class action, supra, docket entry 145, slip op.
at 24.
Here, the first element of issue preclusion is met, as the
issue addressed in the Foster class action litigation is
identical to the Eighth Amendment claim the plaintiff makes
here. He lists four separate claims for relief in his
complaint. The claims amount to an allegation of a violation of
the Eighth Amendment regarding the care of inmates during the
COVID-19 outbreak, specifically noting the risk of contracting
4 The plaintiff disputes that he was a member of the class certified in the Foster class action matter. See Foster class action, supra, docket entry 74 (Nov. 12, 2020). The plaintiff is incorrect. The Foster class action class consisted of all Massachusetts prisoners confined at Department of Correction (DOC) facilities, excluding county jails. Id., slip op at 2. Furthermore, the subclass consisted of all those inmates who, according to the Centers for Disease Control and Prevention, are "at increased risk from COVID-19 due to their age (age 50 or older) and/or medical conditions that have been determined to increase risks from COVID-19." Id. Included amongst those conditions is type II diabetes mellitus. Here, the plaintiff continues to be incarcerated at a DOC facility, is over the age of sixty, and suffers from diabetes. Thus, the plaintiff was a member of the Foster class action class and, as such, was party to that litigation.
4 COVID-19, as well as mentioning several instances of alleged
misconduct.5 In the Foster class action, one of the specific
issues raised was whether "the increased risk of contracting
COVID-19 while in prison and the restrictions on prison
activities caused by DOC's response to COVID-19 constitute[d]
cruel and unusual punishment," i.e., a violation of the Eighth
Amendment. Foster class action, supra, docket entry 74 (Nov.
12, 2020), slip op. at 3. Thus, the issues in the Foster class
action matter and in the instant case are identical.
The second element of issue preclusion, that the issue was
actually litigated, is present as well. In the Foster class
action, there was extensive litigation regarding whether the
Eighth Amendment was violated by the DOC and others during the
COVID-19 outbreak. See Foster, 484 Mass. at 715-734, 488 Mass.
at 651-655. The Supreme Judicial Court twice analyzed the
likelihood of success of the Eighth Amendment claim, id., and
the Superior Court eventually addressed the merits of the claim
5 In their motions to dismiss, both the Commonwealth defendants and Wellpath addressed what they presumed to be the plaintiff's negligence claim. However, the motion judge did not address any such claim. In any event, the plaintiff does not raise any claim of error related to a negligence claim in his briefing, and, as such, we treat the issue as waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
5 from the plaintiffs' class in a summary judgment decision.
Foster class action, supra, docket entry 145, slip op. at 3, 24.
Furthermore, the third element of issue preclusion is met
as well, as it is well settled that entry of a summary judgment,
when on the merits, is final and has preclusive effect. See
Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 693
(1974). In the Foster class action litigation, the Superior
Court granted summary judgment for the Commissioner and others
regarding the merits of the Eighth Amendment claims.6 Foster
class action, supra, docket entry 145, slip op. at 3, 24. Thus,
the issues the plaintiff raised in the matter before us were
adjudicated and a valid and binding final judgment had entered.
Lastly, the fourth element, that the determination of this
issue was essential to the judgment, is clearly met because the
granting of summary judgment in the Foster class action
litigation regarding the Eighth Amendment claims entered
specifically because the plaintiffs could not "meet their burden
to show . . . deliberate indifference." Foster class action,
supra, docket entry 145, slip op. at 23. Therefore, the issue
the plaintiff raises here was already the basis for the granting
of summary judgment in the Foster class action matter. Since
the issues that the plaintiff raises are barred by issue
6 The order granting summary judgment was never appealed.
6 preclusion, he fails to state an actionable claim in his
complaint, and, as such, the judge did not err in granting the
motion to dismiss against the Commonwealth defendants.
b. Dismissal of Eighth Amendment claims against Wellpath.
We take judicial notice of the Federal Bankruptcy Court for the
Southern District of Texas's order, dated May 1, 2025,
confirming Wellpath Holdings, Inc.'s chapter 11 plan of
reorganization. Accordingly, the plaintiff's claims against
Wellpath have been discharged. In any event, and even if the
claim were not discharged by the chapter 11 order, the claim
against Wellpath is precluded as well.
"A nonparty may use collateral estoppel defensively against
a party to the original action who had a full and fair
opportunity to litigate the issues in question." Martin v.
Ring, 401 Mass. 59, 61 (1987). See Home Owners Fed. Sav. & Loan
Ass'n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455
(1968).
While Wellpath and its staff were not party to the Foster
class action litigation, the claim against it by the plaintiff
is barred under issue preclusion because, as addressed
previously, the plaintiff here was a party to the original
7 action, as a class member, and had a full and fair opportunity
to litigate the issues in question.7
2. Denial of motion to amend complaint. "We review the
denial of a motion to amend the complaint for abuse of
discretion." Doull v. Foster, 487 Mass. 1, 22 (2021), quoting
Dzung Duy Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436,
461 (2018). Leave to amend should be granted "unless there are
good reasons for denying the motion." Mathis v. Massachusetts
Elec. Co., 409 Mass. 256, 264 (1991). "Good reasons" for denial
of a motion to amend include, among other grounds, futility.
Id.
Here, the judge's denial of the plaintiff's motion to amend
the complaint was not an abuse of discretion because the
proposed amendments were futile. The plaintiff submits that his
amended complaint would add a new defendant, Alexis Cushman,
purportedly Wellpath's employee, to the litigation. The
proposed amended complaint does not allege any new issues but
simply adds a new party to the litigation. Therefore, the
plaintiff's proposed amendment does not address or call into
question our conclusion that the plaintiff's Eighth Amendment
claims are infirm and properly were dismissed. As such, the
7In light of our conclusion, we need not reach Wellpath's additional arguments.
8 plaintiff's motion for leave to file an amended complaint was
properly denied for futility.8
Judgment affirmed.
Order entered January 16, 2024, denying motion for reconsideration affirmed.
By the Court (Meade, Walsh & Hodgens, JJ.9),
Clerk
Entered: September 30, 2025.
8 To the extent it does so, Wellpath's request for an award of its appellate attorney's fees is denied; costs shall be taxed pursuant to Mass. R. A. P. 26 (a), (b), as appearing in 481 Mass. 1655 (2019). 9 The panelists are listed in order of seniority.