AMENDED MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

F. DENNIS SAYLOR, IV, District Judge.

This action is brought by a state prisoner for alleged medical malpractice and inadequate prison conditions arising out of injuries he suffered in a motor vehicle accident while being transported in custody. After the accident, plaintiff Edwin Rua was treated by defendants Pam Jones, Sue Rogers, Thomas Patnaude, Geraldine Somers, and other unnamed medical staff.1 Rua filed a pro se amended complaint alleging that defendants are liable under 42 U.S.C. §§ 1983, 1985, and 1986 for violating and conspiring to violate his rights under various constitutional provisions including the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments, and that all defendants are liable under state law for various torts including medical malpractice and negligence.

Defendants Somers, Jones, Rogers have each moved to dismiss the claims against them under Mass. Gen. Laws ch. 231 § 60B and Fed. R. Civ. P. 12(b)(6); Evangelidis, and Jenkins have moved to dismiss the claims against them under Fed. R. Civ. P. 12(b)(6). For the following reasons the motions will be granted in part and denied in part.

I. Background

The following factual allegations are drawn from the amended complaint and the attached exhibits.

In March 2008, Rua was arrested and held at the Worcester County House of Corrections pending trial. (Am. Compl. ¶¶ 1, 2). On July 25, 2008, he was in a motor vehicle accident while being transported to a court hearing by the Worcester County Sheriff's Department. (Id. ¶ 5). He contends that as a result of the accident, he suffered serious injuries and was in tremendous pain. (Id. ¶¶ 7-9). He was taken by ambulance to Lawrence General Hospital where he examined for injuries. He was given morphine and prescribed Motrin for the pain. (Id. ¶ 14, ex. EE).

Rua further alleges that upon returning to the House of Corrections, he frequently requested medical services and filed numerous grievances about his medical treatment and his living conditions. (See id. ¶¶ 15, 47-53, 56, 61, 66, Ex. E, G, I). Over the course of the following year, he continued to receive outside medical treatment at St. Vincent Hospital for persistent lower-back pain and headaches. (See Id. ¶ 22, Exs. H, EE).

In early February 2009, Rua stopped receiving pain medication. (Id. ¶ 24). He contends that he repeatedly complained about this, but was told to stop lying about his medical condition. (Id.). Eventually, Pam Jones, a nurse for the medical department at the House of Corrections, started bringing him his medications. (Id. ¶¶ 24-25). Rua alleges that on several occasions Jones yelled at him and told him he was faking his injuries, and that in February 2009, she began crushing his medication such that he could not take it. (See id. ¶¶ 25, 31, 36).

In September 2009, Rua received spinal injections to treat his injuries. (Id. ¶ 38). He alleges that as a result, he was in tremendous pain, but was not provided with any pain medication. (Id. ¶¶ 38-39). During a followup appointment, Rua had an MRI to evaluate his condition. (Id. ¶¶ 43-44). Geraldine Somers, a primary care physician, reviewed the MRI results and told him that there were no signs that anything was wrong and that he was likely suffering from common nerve problems. (Id. ¶ 45). Rua continued to complain about his pain and medical attention and eventually met with Somers again in December. He alleges that Somers did not allow him to explain his complaints and told him that there was nothing that they could do and he had to "deal with it." (Id. ¶ 46).

From January 2009 through December 2010, Rua filed numerous grievances and wrote letters to Kathy Wisniewski, the Medical Department Director, and others concerning his medical treatment and lack of sufficient access to outside medical care. (Id. ¶¶ 47-53, 56-58, 61, 63, 65-66, 68). The grievances were denied. (See id.). He alleges that he continues to suffer from, among other things, headaches, dizziness, and back pain, and that he has lost feeling in the left side of his forehead. (Id. ¶ 71).

II. Procedural History

Rua filed a pro se complaint on December 10, 2010, and subsequently amended the complaint. On March 18, 2011, this Court referred the case to a medical malpractice tribunal pursuant to Mass. Gen. Laws ch. 231 § 60B as to the claims against defendants Somers, Patnaude, Rogers, and Jones, all of whom are medical providers. A medical malpractice tribunal was scheduled for August 4, 2011. On August 16, 2011, the Worcester Superior Court dismissed the medical malpractice claims for failure to file an offer of proof before the tribunal. (Order of the Medical Malpractice Tribunal, Attach. 1). The case was then transferred back to this Court.

Defendants Somers, Jones, and Rogers moved to dismiss the claims arising under 42 U.S.C. §§ 1983, 1985, and 1986 for failure to state a claim upon which relief can be granted, and have moved to dismiss the medical malpractice claims pursuant to Mass. Gen. Laws ch. 231 § 60B. Defendants Evangelidis, and Jenkins moved to dismiss the claims against them for failure to state a claim upon which relief can be granted.

III. Standard of Review

On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court "must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). Material attached to a complaint, or incorporated by reference, are a part of the pleading itself, and the Court may consider them on a motion to dismiss. Trans-Spec Truck Serv. v. Caterpillar, 524 F.3d 315, 321 (1st Cir. 2008). To survive a motion to dismiss, the plaintiff must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations omitted). However, the Court need not consider "bald assertions [or] unsupportable conclusions." Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir. 1996). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not "possess enough heft to show that plaintiff is entitled to relief." Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).

IV. Analysis

Plaintiff's claims are something of a tangled web, but generally fit into three basic categories: (1) medical malpractice claims that were referred to a medical malpractice tribunal pursuant to Mass. Gen. Laws ch. 231 § 60B; (2) federal civil rights claims arising under 42 U.S.C. §§ 1983, 1985, and 1986; and (3) other claims arising under state law.

A. Medical Malpractice Claims

Mass. Gen. Laws ch. 231 § 60B requires that "[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal," where "the plaintiff shall present an offer of proof and said tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result." Mass. Gen. Laws ch. 231 § 60B. "If a finding is made for the defendant[s] . . . the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars." Id. "If a plaintiff declines to make an offer of proof, then the judge may assume that the plaintiff's claims are entirely frivolous." Denton v. Beth Israel Hospital, 392 Mass. 277, 280 (1984). Although this does not necessarily require a dismissal of the medical malpractice claims, "a plaintiff may, in effect, `waive' the tribunal by declining to present an offer of proof," and thus "assume[] voluntarily the financial burden of the bond." Id. at 279-81 & n.4.

Here, plaintiff's malpractice claims were dismissed by the Worcester County Superior Court due to his failure to present an offer of proof at the medical malpractice tribunal. (Order of the Medical Malpractice Tribunal, Attach. 1). Thus, a finding was made for the defendants, and by operation of law plaintiff may only pursue his treatment-related claims if he posts a $6,000 bond. Mass. Gen. Laws ch. 231 § 60B. If plaintiff does not post the bond within 30 days of the finding, this Court is required to dismiss those claims with prejudice. Id.; Brace v. Massachusetts, 673 F.Supp.2d 36, 39 (D. Mass. 2009) (quoting Farese v. Connolly, 422 Mass. 1010, 1010 (1996)).

Plaintiff did not post a bond within 30 days. He nonetheless contends that his claims should not be dismissed because he is indigent and unable to pay the bond.2 Construed liberally, the Court will analyze this as a motion to reduce the bond amount. See Castro v. United States, 540 U.S. 375, 381-82 (2003) ("Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category.").3 "[A]n indigent person [is] `entitled to have the bond reduced to an amount commensurate with [his] ability to pay' [only] in cases where [he] `has made a good faith effort to present an offer of proof sufficient to meet the directed verdict standard'" Rogers v. Boston, 33 Mass.App.Ct. 328, 329 (1992) (quoting Denton, 392 Mass. at 280-81)).

Plaintiff has filed more than 100 pages of medical reports with this Court and actively filed motions in state court to schedule the tribunal hearing and to explain his barriers preventing him from attending the hearing. Although he is proceeding pro se, he has repeatedly demonstrated his competence in filing motions and bringing evidence and other issues to the Court's attention that he believes are relevant to his claims. Despite this, he failed to submit any offer of proof to the medical malpractice tribunal. Under the circumstances, the Court cannot say that plaintiff made a good faith effort to present an offer of proof to the medical malpractice tribunal.4 Plaintiff is thus required to pay the full bond to pursue his treatment-related claims.

Accordingly, pursuant to Mass. Gen. Laws ch. 231 § 60B, within 30 days of this order plaintiff must post a $6000 bond. If a bond is not posted within 30 days of this order, the medical malpractice claims against defendants Somers, Rogers, and Jones will be dismissed with prejudice.5

B. Federal Civil Rights Claims

1. Section 1983 Claims

Construed liberally, the complaint asserts three claims arising under § 1983: (1) that the actions of defendants Jones, Rogers, Somers, and Patnaude violated plaintiff's constitutional rights; (2) that defendant Wisniewski, the medical department director, failed to train her staff adequately, and that the failure to train resulted in the alleged constitutional violations relating to plaintiff's medical treatment; and (3) that defendants Glodis, Evangelidis, and Jenkins, in their individual and official capacities at the Worcester Sheriff's Department, maintained an unconstitutional policy that resulted in the deprivation of plaintiff's constitutional rights. Defendants Wisniewski, Patnaude, and Glodis have not filed motions to dismiss the claims brought against them. Therefore, the Court will address the claims brought against defendants Somers, Jones, Rogers, Evangelidis, and Jenkins.

a. Claims against defendants Somers, Jones, and Rogers

The Court denied Somers's motion to dismiss the original complaint as moot after plaintiff filed an amended complaint. Likewise, defendants Jones and Rogers have moved to dismiss the § 1983 claims in the original complaint. Accordingly, their motion to dismiss will be denied as moot without prejudice to its renewal.

The Court allowed plaintiff to file an amended complaint after defendants had moved to dismiss and filed supporting memoranda. Thus, in the interest of fairness, defendants Somers, Jones, and Rogers may renew their motions to dismiss plaintiff's § 1983 claims in the amended complaint within 14 days of this order.

b. Claims against defendants Evangelidis and Jenkins

The amended complaint also asserts that defendants Evangelidis and Jenkins are liable under § 1983 because they maintained an unconstitutional policy of denying grievances regarding medical treatment. The maintenance of certain institutional policies, or the failure to implement policies where needed, may constitute a constitutional violation under some circumstances. See, e.g., Burrell v. Hampshire County, 307 F.3d 1, 10 (1st Cir. 2002). However, defendants Evangelidis and Jenkins are not mentioned in the facts section of the amended complaint, and the assertion that they failed to correct an unconstitutional policy in the request for relief is conclusory. Thus, plaintiff's § 1983 claims against Evangelidis and Jenkins are not sufficient to meet even the minimal pleading requirements of Rule 8. Doyle, 103 F.3d at 190.6

2. Section 1985 and Section 1986 Claims

The first page of the amended complaint generally asserts a violation of 42 U.S.C. § 1985(3), conspiracy to interfere with civil rights, and § 1986, knowing failure to prevent such a conspiracy.7 However, the amended complaint does not indicate which defendant allegedly violated these provisions. Even construed liberally to implicitly assert a claim against every defendant, to state a claim under § 1985(3) the amended complaint

Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

As interpreted by the Supreme Court, to state a claim under § 1985(3) the complaint must allege that the "conspiratorial conduct of which [plaintiff] complains is propelled by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus.'" Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). The complaint contains no such plausible allegation against any defendant, and therefore fails to meet even the minimal pleading standards of Rule 8(a). The claims under § 1985 will therefore be dismissed.

Section 1986 creates a right of action against a person who knew of any of the wrongful acts described in § 1985, had the power to prevent them, and failed to do so. As discussed, the complaint fails to allege any wrongful acts under § 1985, and accordingly the claims under § 1986 will also be dismissed. See Hahn v. Sargent, 523 F.2d 461, 469-70 (1st Cir. 1975) ("[A]ppellant's claim under § 1986 falls upon the rejection of his § 1985 claims.").

V. Conclusion

For the foregoing reasons,

1. Within 30 days of this order plaintiff must post a $6000 bond. If a bond is not posted within 30 days of this order, the medical malpractice claims against defendants Somers, Rogers, and Jones will be dismissed with prejudice.

2. Defendant Patnaude's motion to reconsider is GRANTED. The medical malpractice claims brought against him will be transferred to a medical malpractice tribunal pursuant to Mass. Gen. Laws ch. 231 § 60B. Discovery concerning the claims against Patnaude will be stayed pending the result of the tribunal.

3. The motions of Jones and Rogers to dismiss the § 1983 claims brought against them is DENIED without prejudice. Defendants Somers, Jones, and Rogers may file motions to dismiss the amended complaint within 14 days of this order.

4. The motion to dismiss the claims brought against defendants Evangelidis and Jenkins is GRANTED.

So Ordered.