Padmanabhan, MD PhD v. Hulka

United States District Court

District of Massachusetts

)

Bharanidharan Padmanabhan, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 17-11939-NMG

Carol Hulka, Rachel Nardin, )

James Paikos, George Zachos, )

Debra Stoller, Susan Giordano, )

Michael Henry, Robin Richman, )

Brent “Woody” Giessmann, George )

Abraham, Candace Lapidus Sloane, )

Robert Bouton, Katie Merrill, )

Steven Horowitz, Loretta Kish )

Cooke, Marianne Felice, Adele )

Audet, Joseph Gesmundo, Barry )

Levin, Robert Harvey, Gerard )

Dolan, Chris Cecchini, Nan )

Browne, Maura Tracy Healey, )

Lucian Leape and William )

Kassler, )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises from the termination of the employment of

Dr. Bharanidharan Padmanabhan (“plaintiff” or “Padmanabhan” or

“Dr. Bharani”) and his subsequent sanctioning by the

Massachusetts Board of Registration in Medicine (“BORIM” or “the

Board”). It is not the first lawsuit brought by the doctor in

connection with these events. In this case, plaintiff brings a

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plethora of claims against multiple defendants. Specifically,

plaintiff alleges that defendants 1) violated the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.

§ 1962(c), 2) conspired to violate RICO, 18 U.S.C. § 1962(d), 3)

violated the Sherman Act, 15 U.S.C. §§ 1–7, 4) committed fraud,

5) tortiously interfered with contract, 6) committed trespass to

chattels and 7) violated his civil rights under 42 U.S.C.

§ 1983. In addition, plaintiff seeks declaratory judgments and

preliminary and permanent injunctive relief.

Before the Court are five motions to dismiss filed by

various combinations of defendants and plaintiff’s motion for

entry of default. For the reasons that follow, defendants’

motions to dismiss will be allowed and plaintiff’s motion will

be denied.

I. Background

Plaintiff Bharanidharan Padmanabhan, MD, PhD, resides in

Massachusetts and practiced medicine as a neurologist at the

Cambridge Health Aliance (“CHA”) Whidden Hospital. In November,

2010, plaintiff’s medical privileges were suspended. The Board

revoked them following a January 2011 Fair Hearing at CHA.

Plaintiff has unsuccessfully challenged that revocation in state

and federal court.

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In October, 2014, Dr. Padmanabhan filed a complaint in

Massachusetts Superior Court for Norfolk County. See Padmanabhan

v. City of Cambridge et al., Norfolk CA. NO. 1482CV01410

(“Padmanabhan I”). That complaint asserted 12 counts against 73

defendants. The claims included various torts, fraud,

violations of Massachusetts state law and violations of

plaintiff’s Constitutional rights. Padmanabhan accused BORIM of

conspiring with CHA and asserted that BORIM’s conduct

constituted “corrupt collusion and racketeering”. In July,

2017, the Superior Court allowed defendants’ motions to dismiss,

holding that plaintiff’s claims were time-barred. Plaintiff

appealed that decision, which is currently pending in the

Massachusetts Court of Appeals.

In September, 2015, Padmanabhan filed a complaint in this

Court against a handful of state officials, alleging that they

violated federal law by improperly accessing the Prescription

Monitoring Program computer database in order to obtain

information about his patients and to accuse him falsely of

Medicaid fraud. This session allowed defendants’ motion to

dismiss, holding that plaintiff failed to state a claim upon

which relief can be granted. See Padmanabhan v. Healey, 159 F.

Supp. 3d 220, 226 (D. Mass. 2016), aff’d, No. 16-1159, 2017 WL

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3404402 (1st Cir. Jan. 4, 2017), cert. denied, 138 S. Ct. 77

(“Padmanabhan II”).

Plaintiff has also pursued litigation arising from BORIM

disciplinary proceedings, which began in 2014. An evidentiary

hearing took place before a Division of Administrative Law

Appeals (“DALA”) magistrate in early 2015, and the magistrate

issued a recommended decision in August, 2015. In January,

2016, BORIM remanded the case to the magistrate with orders to

clarify and explain parts of his decision.

In March, 2016, plaintiff filed a petition for certiorari

in the Massachusetts Supreme Judicial Court (“SJC”) asserting

that the BORIM proceedings violated his constitutional rights

and requesting that the August, 2015, decision be deemed final

pursuant to 801 C.M.R. § 1.01(1l)(c)(3). After that petition

was denied by a single justice of the SJC, plaintiff appealed to

the full SJC. While that appeal was pending, the DALA

magistrate issued an amended recommended decision in August,

2016. That decision found that plaintiff had acted below the

standard of care.

On May 11, 2017, BORIM issued a decision that adopted, in

large part, the magistrate’s findings. On May 15, 2017,

plaintiff filed an emergency motion in the SJC to stay the

suspension of his license. The SJC denied that stay on May 18,

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2017, and issued an opinion on the matter on June 27, 2017. See

Padmanabhan v. Bd. of Registration in Med., 77 N.E.3d 312 (Mass.

2017) (“Padmanabhan III”). The court noted that it did not

“condone the lengthy disciplinary process to which Padmanabhan

has been subjected” and that it had “serious concerns” about the

“repeated resettings of the 180-day clock pursuant to 801 C.M.R.

§ 1.01(11)(c)(2).” Id. at 314. Nonetheless, the Court noted,

plaintiff’s finality argument was unavailing. The Court

concluded that plaintiff

now has the opportunity to pursue judicial review of the

final decision [of BORIM] pursuant to M.G.L. c. 112, § 64.

Id. at 315. Plaintiff did not avail himself of that

opportunity.

Plaintiff filed a complaint in this session on May 22,

2017, requesting injunctive relief against BORIM. Padmanabhan

alleged that ten members or employees of BORIM violated 42

U.S.C. § 1983 by denying him his Due Process and Equal

Protection rights under the Fourteenth Amendment. He requested

that BORIM’s decision be stayed

while the en banc SJC opinion is pending [and until] Dr.

Bharani can avail of remedies in Federal court for the

egregious violations

committed by BORIM.

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In November, 2017, this session denied plaintiff’s motion

for a preliminary injunction and allowed defendants’ motion to

dismiss, holding that plaintiff’s suit was barred by the

doctrine of claim preclusion. See Padmanabhan v. Paikos, 280 F.

Supp. 3d 248, 253 (D. Mass. 2017) (“Padmanabhan IV”).

Plaintiff filed the complaint in this action in October,

2017, which was drawn to United States District Judge Saylor.

In January, 2018, the case was reassigned to this session

pursuant to Local Rule 40.1(g)(5). On February 2, 2018,

plaintiff filed an emergency petition for a writ of mandamus in

the First Circuit Court of Appeals (“First Circuit”), contesting

that reassignment. On February 12, 2018, the First Circuit

denied that petition, finding that plaintiff failed to

demonstrate “a clear entitlement to the relief requested.” See

In re Padmanabhan, No. 16-1159 (1st Cir. Feb. 12, 2018)

(“Padmanabhan V”).

The complaint in the present suit is 180 pages long and

consists of approximately 650 paragraphs. Many of those

paragraphs recount the same events detailed in plaintiff’s

previous complaints in other cases. He states ten claims for

relief against 26 defendants. Most of the defendants have been

sued in prior actions. Two, Maura Tracey Healey and James

Paikos, are named defendants in plaintiff’s previous cases. See

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Padmanabhan II; Padmanabhan IV. Pending before the Court are

five motions to dismiss filed by the defendants. The Court

will address them seriatim.

II. Analysis

Defendants have filed motions to dismiss for failure to

state claims upon which relief can be granted. To survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). In considering the merits of a motion to

dismiss, the Court may look only to the facts alleged in the

pleadings, documents attached as exhibits or incorporated by

reference in the complaint and matters of which judicial notice

can be taken. Nollet v. Justices of Trial Court of Mass., 83

F.Supp.2d 204, 208 (D. Mass. 2000), aff’d, 248 F.3d 1127 (1st

Cir. 2000). Furthermore, the Court must accept all factual

allegations in the complaint as true and draw all reasonable

inferences in the plaintiff's favor. Langadinos v. Am. Airlines,

Inc., 199 F.3d 68, 69 (1st Cir. 2000). If the facts in the

complaint are sufficient to state a cause of action, a motion to

dismiss the complaint must be denied. See Nollet, 83 F.Supp.2d

at 208.

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Although a court must accept as true all of the factual

allegations contained in a complaint, that doctrine is not

applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662

(2009). Threadbare recitals of the legal elements which are

supported by mere conclusory statements do not suffice to state

a cause of action. Id. Accordingly, a complaint does not state

a claim for relief where the well-pled facts fail to warrant an

inference of any more than the mere possibility of misconduct.

Id. at 1950.

Defendants contend that plaintiff’s claims are barred by

the doctrine of claim preclusion. Padmanabhan denies that claim

preclusion applies and asserts that the parties are not in

privity, that the prior action did not produce a final judgment

on the merits and that the state and federal cases have “no

overlapping claims”.

Pursuant to 28 U.S.C. § 1738, judicial proceedings of the

several states “shall have the same full faith and credit in

every court within the United States.” Cf. U.S. Const. art. IV,

§ 1 (mandating that “Full Faith and Credit be given in each

State to the public Acts, Records, and judicial Proceedings” of

each other state). Under that full-faith-and-credit mandate,

federal courts must “give preclusive effect to a state-court

judgment if the state court itself would.” Newman v. Krintzman,

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723 F.3d 308, 310 (1st Cir. 2013) (citing Matsushita Elec.

Indus. Co. v. Epstein, 516 U.S. 367, 373 (1996)) (additional

citations omitted). Under Massachusetts law, claim preclusion

applies when three elements are satisfied:

the parties to the prior and present actions must either be

identical or in privity; the causes of action must arise

out of the same nucleus of operative fact; and the prior

action must have produced a final judgment on the merits.

Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013) (citing

Kobrin v. Board of Registration in Med., 832 N.E.2d 628 (Mass.

2005)); see also Airframe Sys., Inc. v. Raytheon Co., 601 F.3d

9, 14 (1st Cir. 2010) (describing federal claim preclusion

standard in similar terms).

1. Claim preclusion as to defendants Hulka, Nardin,

Paikos, Sloane, Bouton, Cooke, Felice and Leape (“the

Padmanabhan I defendants”)

The Padmanabhan I defendants aver that plaintiff’s claims

are barred by the doctrine of res judicata. Plaintiff responds

that no case filed in any forum has asserted the subject claims

and denies that a final decision was reached by a previous

court.

a. Privity of parties

The Padmanabhan I defendants were all named in the

Padmanabhan I complaint. Plaintiff does not deny that fact.

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The Padmanabhan I defendants are in privity with the defendants

from the prior action.

b. Nucleus of operative fact

Plaintiff avers that the present action involves a

different claim than any brought in a previous case. He

emphasizes that these defendants have not faced claims of mail

fraud or wire fraud and states that this case “is about the

entire universe of unlawful acts these defendants have

consciously engaged in” as part of a racketeering enterprise.

Massachusetts courts require a common nucleus of operative

facts because claim preclusion applies even where the claimant

“is prepared in a second action to present different evidence or

legal theories to support his claim.” Hudson v. MacEachern, 94

F. Supp. 3d 59, 66 (D. Mass. 2015) (quoting Heacock v. Heacock,

520 N.E.2d 151, 152–53 (Mass. 1988)). “The statement of a

different form of liability is not a different cause of action”

if it grows out of the same transaction. Fassas v. First Bank &

Trust Co., 353 Mass. 628, 629 (Mass. 1968); Andrew Robinson

Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 52 (1st Cir.

2008) (“Discrete theories of liability may constitute identical

causes of action for claim preclusion purposes if they are based

on the same nucleus of operative facts.”).

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This case and Padmanabhan I “grow out of the same

transaction” and “seek redress for the same wrong.” See Andrew

Robinson, 547 F.3d at 52 (quoting Brunson v. Wall, 405 Mass.

446, 451 n. 9 (Mass. 1989)). Plaintiff’s contention that this

case represents a different nucleus of facts because these

defendants have not been confronted by claims of mail or wire

fraud misconstrues the doctrine. See Isaac v. Schwartz, 706 F.2d

15, 17 (1st Cir. 1983) (“The issue is not whether the plaintiff

in fact argued his claims in the state proceeding, but whether

he could have.”) (quoting Lovely v. Laliberte, 498 F.2d 1261,

1263 (1st Cir. 1974) (internal quotation marks omitted). In

both cases, plaintiff’s claims arise out of the alleged use of a

fraudulent report, fraudulent misrepresentations and collusion

between BORIM and CHA.

The causes of action in the two cases arise out of the same

nucleus of operative facts.

c. Final judgment on the merits

Plaintiff maintains that this Court erred in its decision

in Padmanabhan IV, in which this Court held that plaintiff was

precluded from challenging the BORIM proceedings because he

failed to comply with the Massachusetts administrative appeal

procedures. He insists, again, that BORIM’s February, 2016,

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decision and not its May, 2017, decision was the actual “final

decision”.

First, plaintiff is precluded from relitigating that issue,

which was already addressed and decided in Padmanabhan IV. See

Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir.

1994) (“The principle of collateral estoppel, or issue

preclusion, bars relitigation of any factual or legal issue that

was actually decided in previous litigation . . . .”).

Second, a final judgment on the merits was entered in

Padmanabhan I. That court held that plaintiff’s claims were

time-barred because plaintiff’s claims accrued in or before

October, 2011. A dismissal for failure to state a claim is a

final judgment on the merits. Swaida v. Gentiva Health Servs.,

238 F. Supp. 2d 325, 328 (D. Mass. 2002) (citing Federated

Department Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3

(1981)). Plaintiff has realized a final judgment on the merits

of his claims against the Padmanabhan I defendants.

Because this action and Padmanabhan I involve a privity of

parties and the same nucleus of operative fact and because the

state court action resulted in a final decision, plaintiff’s

claims against the Padmanabhan I defendants are barred by the

doctrine of claim preclusion.

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2. Claim preclusion as to defendants Paikos, Cooke, Audet,

Cecchini and Healey (“the Padmanabhan II defendants”)

The Padmanabhan II defendants contend that plaintiff’s

claims are barred by the doctrine of res judicata.

a. Privity of parties

The Padmanabhan II defendants were all named in the

Padmanabhan II complaint. Plaintiff does not deny that fact.

The Padmanabhan II defendants are in privity with the defendants

from the prior action.

b. Nucleus of operative fact

The Padmanabhan II complaint alleged that the subject

defendants conspired to obtain information about plaintiff’s

patients and falsely accused him of Medicaid fraud. So too

here.

The causes of action in the two cases arise out of the same

nucleus of operative fact.

c. Final judgment on the merits

In Padmanabhan II, this Court held that plaintiff failed to

state a claim for relief. That judgment was affirmed by the

First Circuit and the United States Supreme Court denied

plaintiff’s petition for a writ of certiorari. See Padmanabhan

v. Healey, 159 F. Supp. 3d 220(D. Mass. 2016), aff’d, No. 16-

1159, 2017 WL 3404402 (1st Cir. Jan. 4, 2017), cert. denied, 138

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S. Ct. 77 (2017). Plaintiff has realized a final judgment on

the merits of his claims against the Padmanabhan II defendants.

Because this action and Padmanabhan II involve privity of

parties and the same nucleus of operative fact and because the

previous suit resulted in a final decision, plaintiff’s claims

against the Padmanabhan II defendants are barred by the doctrine

of res judicata.

3. Claim preclusion as to defendants Paikos, Zachos,

Stoller, Giordano, Henry, Richman, Giessmann, Abraham,

Sloane and Cooke (“the Padmanabhan IV defendants”)

The Padmanabhan IV defendants contend that plaintiff’s

claims are barred by the doctrine of res judicata.

a. Privity of parties

The Padmanabhan IV defendants were all named in the

Padmanabhan IV complaint. Plaintiff does not deny that fact.

The Padmanabhan IV defendants are in privity with the defendants

from the prior action.

b. Nucleus of operative fact

The Padmanabhan IV complaint alleged that, “over almost

seven years”, the subject defendants violated his statutory and

constitutional rights by depriving him of his medical license.

Those allegations form the substance of this complaint as well.

The causes of action in the two cases arise out of the same

nucleus of operative fact.

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c. Final judgment on the merits

This Court has already held that Dr. Padmanabhan incurred a

final judgment on the merits with respect to the same claims

against these defendants. See Padmanabhan IV, 280 F. Supp. 3d at

252-53. The Court sees no reason to alter that analysis here.

Plaintiff has realized a final judgment on the merits of his

claims against the Padmanabhan IV defendants.

Because this action and Padmanabhan IV possess privity of

parties and the same nucleus of operative fact and because the

previous suit resulted in a final judgment by an administrative

agency in an adjudicatory proceeding, see Brockton Power Co. LLC

v. Energy Facilities Siting Bd., 469 Mass. 215, 220 n.8 (2014),

plaintiff’s claims against the Padmanabhan IV defendants are

barred by the doctrine of claim preclusion.

4. Failure to state a claim against defendant Merrill

Setting aside plaintiff’s legal conclusions, see Twombly,

550 U.S. at 565, plaintiff alleges that Merrill was a paralegal

for at the Massachusetts Division of Law & Policy, that she

responded to a records request and that Merrill tried “to shoo

him away”. Those facts do not suffice to state a claim upon

which relief can be granted. See id. at 566 (“Nothing contained

in the complaint invests either the action or inaction alleged

with a plausible suggestion of conspiracy.”).

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5. Failure to state a claim against defendant Harvey

Devoid of the conclusory statements and legal conclusions,

see Iqbal, 556 U.S. at 678-79, plaintiff alleges that Harvey was

a staff attorney at BORIM and that Harvey sent Padmanabhan a

letter informing him that his medical license was suspended.

Such allegations fail to state a claim upon which relief can be

granted. Cf. Twombly, 550 U.S. at 566-67 (citation omitted)

(affirming dismissal where plaintiff’s allegations were equally

consistent with “lawful, independent goals which do not

constitute a conspiracy”).

6. Failure to state a claim against defendant Dolan

Plaintiff claims that Dolan is a BORIM staff attorney and

that he responded to plaintiff’s record request. Once again,

those allegations are woefully insufficient to state a claim.

7. Failure to state a claim against defendant Browne

Plaintiff opines that Browne, a Medicaid fraud

investigator,

violated 18 U.S.C. § 1030, 105 CMR 700.012 and Dr Bharani’s

4th Amendment rights by stealing his trade secrets and

using them to launch an unlawful ambush on his home to

steal his patient notes as well (sic).

The Court disregards statements in the complaint that are

“legal conclusions couched as facts or bare bones recitals of

the elements of a cause of action.” Mead v. Indep. Ass’n, 684

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F.3d 226, 231 (1st Cir. 2012). Exclusive of such

pronouncements, plaintiff’s allegations against Browne are

unavailing.

8. Immunity of defendant Paikos

Defendant Paikos is an investigator and lawyer for BORIM.

When a government attorney “prepares to initiate a judicial

proceeding or appears in court to present evidence,” his or her

actions are shielded by absolute immunity provided that the

attorney functions as an advocate for a governmental entity. Van

de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (internal

citations omitted). Absolute immunity even applies for “making

false or defamatory statements in judicial proceedings . . . and

also for eliciting false and defamatory testimony.” Reid v.

State of N.H., 56 F.3d 332, 337 (1st Cir. 1995) (quoting Burns

v. Reed, 500 U.S. 478, 489–90 (1991)).

Here, plaintiff’s allegations concern Paikos’s role as an

advocate for BORIM. Accordingly, plaintiff’s claims against

Paikos are barred by the doctrine of absolute immunity.

9. Immunity of defendant Levine

Plaintiff’s allegations against defendant Levine relate to

Levine’s testimony at a March, 2015 BORIM hearing. Testimony

given in a judicial proceeding that pertains to that proceeding

is “absolutely privileged and cannot be used to support a civil

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liability even if the statements were uttered with malice” or

bad faith. Fisher v. Lint, 69 Mass. App. Ct. 360, 366 (2007)

(citing Seelig v. Harvard Coop. Soc., 355 Mass. 532, 538

(1969)). Because the BORIM proceeding is quasi-judicial in

nature, plaintiff’s claims against Levine are barred by the

doctrine of absolute immunity. See Visnick v. Caulfield, 73

Mass. App. Ct. 809, 812-13 (2009); Williams v. Massachusetts

Coll. of Pharmacy & Allied Health Scis., No. 12-cv-10313-DJC,

2013 WL 1308621, at *5 (D. Mass. Mar. 31, 2013).

10. Immunity of Defendants Henry, Richman, Geissmann,

Abraham, Sloane and Felice

Defendants Henry, Richman, Geissmann, Abraham, Sloane and

Felice are sued as members of the state physician board. Board

members of BORIM act in a “quasi-judicial capacity,” and are

accorded absolute immunity for actions taken in that capacity.

Bettencourt v. Bd. of Registration in Med. of Com. of Mass., 904

F.2d 772, 784 (1st Cir. 1990). Accordingly, plaintiff’s claims

against these defendants are barred by the doctrine of quasi-

judicial immunity.

11. Plaintiff’s claims are barred by statutes of

limitations

a. Civil RICO claims

Plaintiff’s first claim for relief, for violation of civil

RICO, 18 U.S.C. § 1962(c), and second claim, for conspiracy to

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violate civil RICO, 18 U.S.C. § 1962(c), are subject to a four

year statute of limitations. See Agency Holding Corp. v. Malley-

Duff & Assocs., Inc., 483 U.S. 143, 152 (1987) (creating four-

year statute of limitations rule for civil RICO actions). The

statute begins to run on such a claim “when a plaintiff knew or

should have known of his injury.” Rotella v. Wood, 528 U.S. 549,

553 (2000) (adopting injury discovery accrual rule).

Plaintiff maintains that the statute began to run in

August, 2014, when he first discovered the alleged fraud. That

statement is belied by plaintiff’s present complaint and past

litigation.

First, plaintiff avers in his complaint that

On January 29, 2013, Dr. Bharani first became aware of

collusion between defendants Paikos, Kish Cooke, Bouton,

Hulka and Nardin.

Second, Dr. Padmanabhan “knew or should have known of his

injury” in November, 2011, when he received a termination letter

from CHA.

Third, this Court agrees with the well-reasoned decision in

Padmanabhan I, which held that the statute of limitations began

to run before October, 2011. See Padmanabhan I, at 3 (noting

that “plaintiff filed a complaint with the Massachusetts

Commission Against Discrimination (MCAD) regarding the allegedly

wrongful termination” in September, 2011).

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Finally, plaintiff emphasizes throughout his complaint that

defendants’ acts took place “over seven years”, dating to his

discharge from CHA. Based upon allegations made in his previous

litigation against many of the same defendants named in this

suit, he “should have known” of his injury before October, 2013.

Accordingly, Counts I and II are time-barred.

b. Sherman Act antitrust claims

Sherman Act claims must be brought “within four years after

the cause of action accrued.” 15 U.S.C. § 15b. Generally, a

“cause of action accrues and the statute begins when a defendant

commits an act that injures a plaintiff’s business.” Zenith

Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338

(1971). The acts that “eliminated Dr. Bharani from the medical

marketplace,” according to plaintiff’s complaint, were

concluded, at latest, by the BORIM Complaints Committee hearing

on January 29, 2013.

Accordingly, Count III is time-barred.

c. Remaining claims

Plaintiff’s remaining claims include tort claims for fraud

(Count IV), tortious interference with contract (Count V),

trespass to chattels (Count VI), violation of 42 U.S.C. § 1983,

and a claim for a declaratory judgment (Counts IX and X). These

claims all have a three-year statutes of limitations.

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Whether based on the October, 2011, date for his discharge

from CHA or the January, 2013, date for his hearing before

BORIM, plaintiff’s claims are barred by the three-year statutes

of limitations for this claim. That his license was officially

revoked in July, 2017, does not change this fact. See In re

Relafen Antitrust Litigation, 286 F. Supp. 2d 56, 62 (D. Mass

2003).

12. Plaintiff’s claims against Defendant Kassler fail

Defendant Kassler is the former Chief Medical Officer for

Medicare’s Boston Regional Office. Kassler has not answered,

moved to dismiss or appeared in this litigation. On December

17, 2017, plaintiff moved for an entry of default. The Court

will deny that motion.

Plaintiff’s claims are barred by the doctrine of claim

preclusion. Although claim preclusion is an affirmative

defense, a court “may dismiss [an] action sua sponte, consistent

with the res judicata policy of avoiding judicial waste.” In re

Colonial Mortg. Bankers Corp., 324 F.3d 12, 16 (1st Cir. 2003)

(quoting Bezanson v. Bayside Enterps., Inc., 922 F.2d 895, 904

(1st Cir. 1990)). Such a dismissal is appropriate if two

conditions are met. First,

the facts that establish the defense must be definitively

ascertainable from the allegations of the complaint, the

documents (if any) incorporated therein, matters of public

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record, and other matters of which the court may take

judicial notice.

Id.

Second, “the facts so gleaned must conclusively establish

the affirmative defense.” Id. (citing Blackstone Realty LLC v.

FDIC, 244 F.3d 193, 197 (1st Cir. 2001)). Both conditions are

met here.

The parties in this suit are identical to Padmanabhan I.

Defendant Kassler is named as a defendant in that complaint.

The cases arise out of the same nucleus of fact, alleged

fraudulent conduct surrounding plaintiff’s termination from CHA.

Padmanabhan I resulted in a final judgment when the case was

dismissed by the Norfolk County Superior Court for failure to

state a claim. Accordingly, plaintiff’s claims against Kassler

are barred by the doctrine of claim preclusion.

In addition to claim preclusion, plaintiff’s claims against

Kassler are barred by the statutes of limitations for the same

reasons outlined above.

It would be a waste of judicial resources if this Court did

not dispose of plaintiff’s claims against Kassler at this point.

Accordingly, it will dismiss the claims against Kassler sua

sponte. See Lewis v. N.H. Judicial Branch, No. 09-CV-307-SM,

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2010 WL 432367, at *3 (D.N.H. Feb. 3, 2010) (dismissing claim

sua sponte under doctrine of claim preclusion).

13. Rule 8 and pro se status

Where a plaintiff proceeds pro se, his complaint “is to be

liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(citation omitted). Pro se status, however,

does not relieve [a plaintiff] of the obligation to meet

procedural requirements established by law . . . [and]

[e]ven a pro se complainant is required to describe the

essential nature of the claim . . .

Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).

Under Fed. R. Civ. P. 8(a)(2), a

pleading that states a claim for relief must contain . . .

a short and plain statement of the claim showing that the

pleader is entitled to relief.

District courts have the power to dismiss a complaint that

does not comply with Rule 8(a)(2)’s “short and plain statement”

requirement. Vakalis v. Shawmut Corp., 925 F.2d 34, 36 (1st Cir.

1991). Plaintiff maintains that he abided by that requirement

in his two page “simple non-conclusory statement of claim” on

pages 10 and 11 of his complaint. His complaint continues,

however, for another 170 pages and more than 600 paragraphs of

allegations.

Most of the allegations in the voluminous paragraphs are

irrelevant, conclusory or incomprehensible. The complaint is

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unnecessarily burdensome for 19 of the 27 defendants who have

already litigated these very issues. Dismissal for violation of

Rule 8(a)(2) is reserved for cases in which the complaint

is so confused, ambiguous, vague or otherwise

unintelligible that its true substance, if any, is well

disguised

such that it is unreasonable for defendants to frame a response.

Belanger v. BNY Mellon Asset Mgmt., LLC, 307 F.R.D. 55, 58 (D.

Mass. 2015) (dismissing complaint for failure to comply with

“short and plain statement” requirement).

Plaintiff proffers such a complaint here. Cf. id. (“[The

complaint] is way too long, detailed and verbose for either the

Court or the defendants to sort out the nature of the claims or

evaluate whether the claims are actually supported by any

comprehensible factual basis.”).

Accordingly, plaintiff’s complaint is dismissed for failure

to comply with Fed. R. Civ. P. 8(a)(2).

IV. Dismissal with prejudice

Plaintiff’s complaint fails to state any claim upon which

relief can be granted. Because the Court will allow the

defendants’ motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6), the dismissal is “a final decision on the merits, and

is thus with prejudice.” Foran v. Stryker Sales Corp., No. 10-

CV-12187-RGS, 2011 WL 652778, at *1 (D. Mass. Feb. 14, 2011)

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(citing Acevedo–Villalobos v. Hernandez, 22 F.3d 384, 388 (1st

Cir. 1994)).

A district court “should freely give leave [to amend] when

justice so requires.” Fed. R. Civ. P. 15(a)(2). That low

standard is not met in this case. Where a movant evinces

futility, bad faith, undue delay, or a dilatory motive,

amendment is unwarranted. See Grant v. News Group Boston, Inc.,

55 F.3d 1, 5 (1st Cir. 1995). Amending a complaint is futile if

the amended complaint “could not withstand a 12(b)(6) motion to

dismiss.” Hatch v. Dep’t for Children, Youth & Their Families,

274 F.3d 12, 19 (1st Cir. 2001) (quoting Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000)).

Here, the Court finds that further leave to amend

plaintiff's complaint would be futile. Most of plaintiff’s

claims are barred by claim preclusion and all are barred by the

applicable statutes of limitations. An opportunity to amend

will not cure those fundamental shortcomings. Although

plaintiff has not yet amended his complaint in this suit, this

case is his fourth sortie into court. Once again, his complaint

is unavailing. The complaint will be dismissed in its entirety,

with prejudice.

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ORDER

For the foregoing reasons,

1) the motion to dismiss of Lucian Leape (Docket No. 11) is

ALLOWED;

2) the motion to dismiss of Joseph Gesmundo, Carul Hulka and

Rachel Nardin (Docket No. 15) is ALLOWED;

3) the motion to dismiss of George Abraham, Adele Audet,

Robert Bouton, Nan Browne, Chris Cecchini, Loretta Kish

Cooke, Gerard Dolan, Marianne E. Felice, Brent “Woody”

Giessmann, Susan Giordano, Robert J. Harvey, Maura Tracy

Healey, Michael Henry, Katie Merrill, James Paikos, Robin

Richman, Candace Lapidus Sloane, Debra Stoller and George

Zachos (Docket No. 18) is ALLOWED;

4) the motion to dismiss of Barry Levine (Docket No. 20) is

ALLOWED;

5) the motion to dismiss of Steven Horowitz (Docket No. 36)

is ALLOWED; and

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6) plaintiff’s motion for entry of default against William

Kassler (Docket No. 29) is DENIED AS MOOT.

So ordered.

/s/ Nathaniel M. Gorton_____

Nathaniel M. Gorton

United States District Judge

Dated April 3, 2018

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