Craven v. Boston Health Net Insurance Co.

Filing 12

Judge William G. Young: MEMORANDUM AND ORDER FOR DISMISSAL entered: Magistrate Judge Boal's Report and Recommendation (Docket No. 10) is ADOPTED by this Court in its entirety;This action is DISMISSED in its entirety without prejudice; andPlaintiffs' request for this Court to forward this action to another court it deems to be the proper court is DENIED.(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALFRED CRAVEN, ET AL., on behalf of
mother Joan Henry,
Plaintiff,
CIVIL ACTION NO.
12-12064-WGY

v.
BOSTON HEALTH NET INSURANCE CO.,
ET AL.,
Defendants.

MEMORANDUM AND ORDER FOR DISMISSAL
YOUNG, D.J.
BACKGROUND
On November 2, 2012, Plaintiffs Alfred and James Craven filed a civil action on behalf
of their deceased mother, Joan Henry. Plaintiffs alleged medical malpractice, wrongful death,
and constitutional violations against various Defendants (medical personnel and facilities in
Massachusetts) based on the alleged failure to conduct and/or provide insurance coverage for a
PET scan and the failure to provide other proper medical care to their mother.
On December 6, 2012, Magistrate Judge Boal issued a Memorandum and Order (Docket
No. 4) outlining the legal impediments to Plaintiffs’ claims. These included, inter alia, the
failure to plead plausible claims in accordance with Rule 8 of the Federal Rules of Civil
Procedure, the lack of respondeat superior liability of entities and supervisory Defendants under
42 U.S.C. § 1983, the failure to set forth state action under §1983, the inapplicability of the
Eighth Amendment claims by non-prisoners, and the lack of subject matter jurisdiction.
Moreover, Magistrate Judge Boal discussed that the Plaintiffs could not bring wrongful death
claims on behalf of their mother, because under Massachusetts law, only the authorized
Executor/trix or Administrator/trix of Joan Henry’s Estate may bring such claims. Finally, this
Court noted that Plaintiffs could not, even if they were Co-Executors or Administrators of their
mother’s Estate, bring a wrongful death action in their pro se capacities because only a duly-

licensed attorney may appear in this Court to prosecute those claims. In light of these
impediments, Plaintiffs were directed to file an Amended Complaint curing the pleading
deficiencies. They were also directed to demonstrate good cause in writing why this action
should not be dismissed for the reasons stated in the Memorandum and Order.
Thereafter, on January 8, 2013, in response to the Memorandum and Order, Plaintiffs
filed a Motion to Amend the Complaint (Docket No. 8) which incorporated the signed, Amended
Complaint and included exhibits. Plaintiff’s clarified the list of Defendants and contended that
jurisdiction was based on diversity pursuant to 28 U.S.C. § 1332. They alleged state action by
the Defendants on the grounds that the doctors were sworn in by the state to perform a public
function, and because they practice in state-run institutions. Further, they argued that the doctors
prescribe to their patients medications that are regulated by the FDA, and that they benefit from
a Massachusetts law that requires its citizens to have health insurance.
Next, Plaintiffs requested that, if it was determined that the action did not present civil
rights claims, they be permitted to pursue the negligence and malpractice claims in this Court, or
in the alternative, that this Court forward this case to the proper court.
On January 22, 2013, Magistrate Judge Boal issued an Order and Report and
Recommendation (Docket No. 10) finding that Plaintiffs failed to show good cause why this case
should not be dismissed, primarily because Plaintiffs did not allege that they were Co-Executors
or Co-Administrators of their mother’s Estate, nor had they alleged that there were no creditors
of their mother’s estate. In light of this, Magistrate Judge Boal determined that Plaintiffs could
not proceed pro se on the claims asserted on behalf of their mother. She therefore recommended
that this action be dismissed without prejudice. She also recommended that the Plaintiffs’
request for this Court to forward this action to another court be denied.

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DISCUSSION
To date, neither Plaintiff has filed any Objection to Magistrate Judge Boal’s Report and
Recommendation, and the time period for doing so has lapsed. Accordingly, for the substantive
reasons set forth in the Report and Recommendation (Docket No. 10), this Court will ADOPT
the Report and Recommendation in its entirety and will DISMISS this action. Plaintiffs’ request
for transfer of this action to another court also will be DENIED.
CONCLUSION
Based on the foregoing, it is hereby Ordered that:
1.

Magistrate Judge Boal’s Report and Recommendation (Docket No. 10) is ADOPTED by
this Court in its entirety;

2.

This action is DISMISSED in its entirety without prejudice; and

4.

Plaintiffs’ request for this Court to forward this action to another court it deems to be the
proper court is DENIED.1

SO ORDERED.

DATED: February 12, 2013

/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

1

Plaintiff Alfred Craven is currently incarcerated ay FMC Devens, and thus is presumed
to be a “prisoner” at FMC Devens, as defined by 28 U.S.C. § 1915(h). For purposes of
determining the applicability of the three-strike rule of 28 U.S.C. § 1915(g) in connection with
any future litigation by Alfred Craven, this Court deems the dismissal of this action to be a
decision on the merits upon the holding that Plaintiffs have failed to state claims upon which
relief may be granted.
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