STANLEY DONALD v. CAROL MICI & Others.

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.

9