Hicks v. Ryan et al

Filing 31

Judge Richard G. Stearns: MEMORANDUM AND ORDER entered granting UMass Correctional Healths Motion to Dismiss the Amended Complaint (Docket No. 24); granting Amy Grenier and CNA Lucias Motion to Dismiss the Amended Complaint (Docket No. 26). In acco rdance with this Court's order dated May 9, 2013, and the plaintiff not having shown good cause why the claims, except for the Free Exercise claim against Warden Ryan, should not be dismissed be dismissed, it is ORDERED that the remaining claims against defendants Karen Dinardo, Luis Spencer, UMass Correctional Health; Matthew Arpano, Ms. Powers, Matthew Tolman, Timothy Bariamis, Aimee Grenier, Lucia and the Department of Correction are dismissed pursuant to pursuant to 28 U.S.C. § 1915(e)(2). Defendant Ryan is reminded that her answer to the Amended Complaint is due by September 20, 2013. Copy of Memorandum and Order sent by regular mail to plaintiff Hicks. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 13-10709-RGS
KEVIN D. HICKS
v.
KELLY A. RYAN, et al.
MEMORANDUM AND ORDER
September 16, 2013
STEARNS, D.J.
Plaintiff Kevin Hicks is proceeding pro se. Now before the Court is plaintiff Hicks’ amended
complaint (#23) and the two motions to dismiss filed by defendants Grenier, Lucia and UMass
Correctional Health. See ## 24, 26. Plaintiff Hicks has not filed an opposition to defendants’
motions to dismiss.
BACKGROUND
Plaintiff Kevin Hicks, an inmate at MCI Shirley, initiated this action seeking equitable relief
and monetary damages resulting from the alleged violation of his constitutional rights. In his original
complaint, Hicks alleges that various prison officials and employees violated his rights concerning
disciplinary proceedings, religious observance, medical care, employment and confiscation of his
property. By Memorandum and Order dated May 9, 2013, Hicks was advised, among other things,
that his First Amendment Free Exercise claim survived preliminary screening. See Docket No. 18.
At that time, Hicks was directed to show cause why his employment claim under the Americans
With Disabilities Act and the remaining Section 1983 claims should not be dismissed, or in the
alternative, he shall file an amended complaint. Id.
On June 20, 2013, Hicks filed an amended complaint. See Docket No. 23. In his amended
complaint, plaintiff again brings his claims pursuant to the federal Civil Rights Act, 42 U.S.C. §
1983, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and he adds

claims pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Id. at p. 1. The amended
complaint names the same ten1 defendants as in his original complaint and adds the Massachusetts
Department of Correction as an eleventh defendant. See Docket No. 23. The gravemen of
plaintiff’s claims appear to be same as that alleged in the original complaint. Id.
On July 3, 2013, defendant Umass Correctional Health moved to dismiss pursuant to Rule
12(b) (1) and defendants Grenier and Lucia moved to dismiss pursuant to Rule 12(b)(1) and (6) of
the Federal Rules of Civil Procedure. See Docket Nos. 24, 26. On August 16, 2013, defendant
Ryan was granted an extension of time until September 20, 2013, to answer the amended complaint.
See Docket No. 30.
DISCUSSION
Plaintiff's amended complaint simply restates the facts alleged in his original complaint.
The Court has reviewed the factual allegations the Amended Complaint and find that they are again
insufficient to state (1) a cognizable claim under the Americans With Disabilities Act; (2) a loss of
property claim; (3) a plausible claim of deliberate indifference to serious medical need; (4) a
cognizable Section 1983 action concerning defendant Bariamis’ actions or inactions with regard to
Hicks’ grievances; (5) a plausible due proceed claim concerning plaintiff’s disciplinary proceedings;
(6) a viable claim for denial of his right of access to the courts; (7) a plausible claim that harassing
and intimidating conduct rises to the level of cruel and unusual punishment; (8) a plausible
constitutional claim concerning plaintiff’s classification and placement; (9) a cognizable claim of
retaliatory discipline; and (1) an equal protection claim against any of the named defendants.

1

These ten defendants are Warden Kelly A. Ryan; Superintendent Karen Dinardo;
Commissioner Luis Spencer; UMass Correctional Health; Correctional Officer Matthew Arpano;
Correctional Officer Powers; Correctional Officer Matthew Tolman; Correctional Officer
Timothy Bariamis; nurse Aimee Grenier; and nurse Lucia Hatch. See Am. Compl., ¶¶ 3-13.
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After carefully reviewing plaintiff's Amended Complaint, I find that plaintiff has failed to
demonstrate any reason, except for the Free Exercise claim against Warden Ryan, why the remaining
claims against the remaining defendants should not be dismissed. The Court will allow the
unopposed motions to dismiss filed by defendants Grenier, Lucia and UMass Correctional Health.
See Docket Nos. 24, 26.
ORDER
ACCORDINGLY, for the reasons stated above, it is hereby Ordered that:
(1)

UMass Correctional Health’s Motion to Dismiss the Amended Complaint (Docket No. 24)
is ALLOWED;

(2)

Amy Grenier and CNA Lucia’s Motion to Dismiss the Amended Complaint (Docket No.
26) is ALLOWED;

(3)

In accordance with this Court's order dated May 9, 2013, and the plaintiff not having shown
good cause why the claims, except for the Free Exercise claim against Warden Ryan, should
not be dismissed be dismissed, it is ORDERED that the remaining claims against defendants
Karen Dinardo, Luis Spencer, UMass Correctional Health; Matthew Arpano, Ms. Powers,
Matthew Tolman, Timothy Bariamis, Aimee Grenier, Lucia and the Department of
Correction are dismissed pursuant to pursuant to 28 U.S.C. § 1915(e)(2).

(4)

Defendant Ryan is reminded that her answer to the Amended Complaint is due by September
20, 2013. See Docket No. 30.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

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