United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
reasons set forth below, and in accordance with the
Court's Memorandum and Order dated September 6, 2019,
this action is dismissed pursuant to 28 U.S.C.
§§1915(e)(2)(B)(ii), 1915A(b), for failure to state
a claim upon which relief may be granted.
January 10, 2019, Plaintiff Elena Kurbatzky
(“Kurbatzky”), while an inmate of Southeastern
Middlesex Correction Center,  proceeding pro se on
behalf of Harmony Home Health Care LLC (“HHHC”),
filed an original complaint against the Centers for Medicare
and Medicaid Services (“CMS”) and three CMS
administrators. D. 1.
Memorandum and Order dated March 14, 2019, Kurbatzky was
advised that HHHC must retain counsel and that Kurbatzky must
file an amended complaint if she wished to proceed with this
action. D. 4. Subsequently, Kurbatzky filed an amended
complaint in which she was sole plaintiff. D. 7. On September
6, 2019, Kurbatzky was advised that her amended complaint was
subject to dismissal and she was granted 28 days to file a
second amended complaint. D. 8. On October 10, 2019,
Kurbatzky was granted an extension of time to file her second
amended complaint no later than November 1, 2019. D. 12.
has filed her second amended complaint (“SAC”).
D. 13. The body of the second amended complaint consists of
45 pages of factual allegations in 263 paragraphs.
Id. at 5 - 48. Kurbatzky filed six exhibits with the
SAC, primarily documents concerning the CMS investigation of
HHHC. D. 13-1. Kurbatzky's SAC names the four defendants
identified in her original and amended complaints and adds an
additional eighteen defendants including additional CMS
employees as well as the U.S. Customs and Border Protection
(“CBP”) and three CBP officers. In addition to
again challenging the fraud investigation concerning HHHC,
Kurbatzky challenges her 2017 arrest at Logan Airport and
complains that CBP officers improperly seized Kurbatzky's
relief, Kurbatzky seeks from CBP both monetary damages and
the return of seized property. Id. at 52. As to CMS,
Kurbatzky seeks monetary damages for “emotional
distress associated with illegal execution of conditions of
pre-trial release and illegal incarceration, ”
“anticipated income for 2017-2018 from Harmony Home
Health Care LLC which was not received due to illegal
termination of the agency;” release of
“unreasonably suspended funds;”
“reinstate[ment of] Harmony Home Health Care LLC in
Medicare;” and termination of “MassHealth fraud
investigation.” Id. at 52-53.
The Second Amended Complaint is Subject to Dismissal
second amended complaint suffers from many of the same
pleading deficiencies as the prior complaints and also fails
to state a claim on which relief may be granted.
SAC fails to state a claim upon which relief may be granted
because in as much as can be gleaned from the amended
pleading, she is in essence challenging her sentence and
conviction. “[I]n order to recover damages for
allegedly unconstitutional conviction or imprisonment . . . a
[civil rights] plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus.” Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). In a civil rights case, this so-called
“favorable termination” rule applies not only
where the plaintiff expressly claims that her conviction or
sentence is invalid, but wherever “a judgment in favor
of the plaintiff would necessarily imply the invalidity of
his conviction or sentence.” Id. at 487.
Because a judgment in favor of Kurbatzky would imply the
invalidity of her conviction or sentence, where that
conviction still stands, her claims are barred.
Kurbatzky cannot challenge the termination of HHHC's
Medicare provider agreement. First, as Kurbatzky has been
previously instructed by this Court, Kurbatzky, a
non-attorney, cannot represent HHHC in this action. Next,
judicial review of any determination by the Secretary under
the Medicare Act is precluded unless the exhaustion
requirements of 42 U.S.C. § 405(g) are met. Congress
expressly incorporated this provision to govern various
Medicare matters, including provider-termination decisions.
42 U.S.C. § 1395cc(h)(1)(A).
the prior decision in Kurbatzky v. Dignan, et al.,
No. 18-11022-PBS, D. 28 (granting defendants' motion to
dismiss on September 12, 2019) precludes Kurbatzky's
present suit against the CBP defendants. Claim preclusion,
also known as res judicata, prevents the
relitigation of claims that a party “had the
opportunity and incentive to fully litigate . . . in an
earlier action.” Giragosian v. Ryan, 547 F.3d
59, 63 (1st Cir. 2008). Because the claims asserted in the
present action were already asserted against the CBP
defendants in the earlier action, the claims against the CBP
defendants are precluded by the earlier judgment.
foregoing reasons, and in accordance with the Court's
Memorandum and Order dated September 6, 2019, D. 8, this
action is dismissed pursuant to 28 ...