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Gladu v. Correct Care Solutions

United States District Court, D. Maine

November 2, 2016

NICHOLAS A. GLADU, Plaintiff,
v.
CORRECT CARE SOLUTIONS, et al., Defendants

          RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT AND MOTION FOR LEAVE TO REFILE MALPRACTICE CLAIM

          John C. Nivison U.S. Magistrate Judge

         In this § 1983 action, Plaintiff Nicholas Gladu, an inmate at the Maine Correctional Center (MCC), asserts that Defendants Correct Care Solutions (CCS) and two of its providers acted with deliberate indifference toward Plaintiff's serious medical condition.

         The matter is before the Court on Plaintiff's Motion for Leave to Amend (ECF No. 157) and Plaintiff's Motion for Leave to Refile Malpractice Claim (ECF No. 161). Following a review of the parties' arguments and the record, I recommend the Court grant in part the motions.[1]

         I. Procedural Background

         On May 6, 2016, the Court, upon review of a Recommended Decision dated February 19, 2016, dismissed Plaintiff's state law medical malpractice claim because Plaintiff failed to comply with the requirements of the Maine Health Security Act, 24 M.R.S. §§ 2853 et seq. (ECF Nos. 87, 127.) Through his motion for leave to refile, Plaintiff seeks to reintroduce the malpractice claim. (Motion to Refile at 1.) Through his motion for leave to file an amended complaint, Plaintiff seeks to add multiple new claims and defendants, and “abandon[] claims as to Defendants Burns and Touchette.” (Motion to Amend at 1; Proposed Amended Complaint, ECF No. 157-1.)

         II. Proposed Amended Complaint

         In his proposed amended complaint (ECF No. 157-1), Plaintiff attempts to assert claims against several additional defendants: the Maine Department of Corrections, the Maine Correctional Center, and Susan Carr, Deputy Warden for Programs and Services at the Maine Correctional Center. Plaintiff also attempts to assert the following new claims: (1) disability discrimination claims under the Americans with Disabilities Act, the Rehabilitation Act, and the Maine Human Rights Act; (2) supplemental basis for his retaliation claim; (3) a claim under the Maine Patient's Bill of Rights; and (4) a third-party beneficiary breach of contract claim against the Department of Corrections and CCS.

         As alleged, beginning in late 2012, Plaintiff experienced pain in his joints, particularly in his hips. (Id. ¶ 18.) In time, Plaintiff also experienced bruising on his hips, and he informed Defendant Clinton, CCS's Medical Director, that he believed the problem was the mattress issued by the Correctional Center. (Id. ¶ 23.) Defendant Clinton issued a medical order permitting Plaintiff three additional blankets and another pillow to increase the support provided by the mattress. (Id. ¶ 25.) Plaintiff continued to experience pain and bruising, and requested that Defendant Clinton provide a double mattress. In February 2014, Defendant Clinton denied the request, concluding that Plaintiff did not meet the criteria for a double mattress. (Id. ¶ 29.) Plaintiff was seen by nursing staff on his continuing requests for medical attention related to hip pain, although generally he was not seen within 48 hours of making his requests. (Id. ¶¶ 27 - 36.) On May 12, 2014, Plaintiff was examined by “a medical provider, ” reported worsening pain symptoms, but received pain medication other than his preferred medication. (Id. ¶ 37.)

         On June 2, 2014, Sergeant Michael Burns issued a double mattress to Plaintiff. (Id. ¶ 40.) Defendant Clinton examined Plaintiff on June 5, and Plaintiff reported improvement with the “double matt.” (Id. ¶ 41.) Defendant Clinton again determined that Plaintiff did not meet the criteria for a double mattress, and thus advised Plaintiff that he might not retain the double mattress if he was relocated. (Id. ¶ 42.)

         On June 10, 2014, after CCS ordered x-rays of Plaintiff's hips, a radiology report characterized the images as “unremarkable, ” but suggested follow up if symptoms persisted. (Id. ¶ 45.) When Defendant Clinton saw Plaintiff again on July 10, 2014, Plaintiff reported that he continued to experience “severe pain, ” and he requested an evaluation by an outside orthopedic specialist. (Id. ¶¶ 50 - 51.) Defendant Clinton refused the request for a referral, noting that an outside referral would require evidence of a “loss of function.” (Id. ¶ 50.)

         At some point, Plaintiff was transferred temporarily to the Maine State Prison. Plaintiff maintains that on July 18, 2014, while Plaintiff was at the prison, Sergeant Burns and a corrections officer removed Plaintiff's double mattress and Sergeant Burns deprived Plaintiff of a bed mattress for seven nights as punishment.[2] (Id. ¶¶ 52 - 55.) Plaintiff thus slept for seven nights on a “very thin blanket-like pad.” (Id. ¶ 62.) Plaintiff filed sick call slips with the hope that CCS would intercede on his behalf, but on July 20, 2014, nursing staff responded that there was nothing they could do to assist Plaintiff. (Id. ¶¶ 64 - 65.) On July 26, Plaintiff was provided with a double mattress. (Id. ¶ 66.)

         Plaintiff returned to the Maine Correctional Center on September 17, 2014. (Id. ¶ 70.) Evidently, Plaintiff did not receive a double mattress upon his return to the MCC because on November 8, 2014, he requested that he receive the extra blankets and the pillow originally ordered by Defendant Clinton. (Id. ¶¶ 70 - 72.)

         On December 16, 2014, a corrections officer provided Plaintiff with an extra mattress. (Id. ¶ 73.) Plaintiff's symptoms began to improve with the additional mattress and light exercise. (Id. ¶ 74.) On March 2, 2015, Plaintiff was reassigned to new housing, but did not retain the double mattress. (Id. ¶ 75.) Plaintiff subsequently submitted a sick-call slip upon experiencing “severe hip pain and difficulty sleeping.” (Id. ¶ 76.)

         On April 6, 2015, upon examination of Plaintiff, Defendant Clinton made positive findings for pain in the trochanteric bursa. Defendant Clinton ordered Prednisone and a referral to another CCS physician, Defendant George Stockwell, D.O. (Id. ¶ 78.) Defendant Clinton, however, denied Plaintiff's request for an extra mattress. (Id. ¶ 80.)

         Defendant Stockwell examined Plaintiff on April 21, 2015, and diagnosed bilateral trochanteric bursitis. He administered cortisone injections in both hips. (Id. ¶¶ 82 - 83.) When Defendant Stockwell examined Plaintiff again on May 1, Plaintiff reported that the injections had not helped. (Id. ¶ 87.) At that time, Plaintiff and Defendant Stockwell agreed that Plaintiff had exhausted all “first round” treatment options over the preceding three years, including Ibuprofen, Tylenol, Mobic, Naproxyn, Prednisone, Omega-3 fish oil, Neurontin, and Cortisone injections. (Id. ¶ 88.) Plaintiff requested a trial of pain management treatment and an evaluation from an orthopedic surgeon. (Id. ¶ 89.) Defendant Stockwell, and later Defendant Wendy Riebe, Health Services Administrator for CCS, denied Plaintiff's requests for pain management treatment and an outside consultation. (Id. ¶¶ 90 - 94.)

         In June 2015, Plaintiff was beginning to have difficulty walking and was “barely getting three hours of sleep.” (Id. ¶ 101.) When he saw Defendant Clinton on July 13, 2015, Plaintiff informed Defendant Clinton of his difficulties and also reported experiencing chronic headaches that he attributed to lack of sleep and chronic pain. (Id. ¶¶ 112, 114, 115.) Based on this report of symptoms, Defendant Clinton agreed to an outside referral and prescribed Cymbalta. (Id. ¶¶ 116, 117.)[3]

         As the result of the outside consultation, which occurred on August 3, 2015, the orthopedic specialist diagnosed bilateral trochanteric bursitis. (Id. ¶¶ 125, 126.) He recommended that Plaintiff receive physical therapy, an additional mattress, and an “egg crate foam bed pad.” (Id. ¶¶ 127 - 128.)

         Defendant Clinton refused to issue the second mattress or the foam pad because Plaintiff did not meet the criteria established by CCS. Defendant Clinton also determined that Plaintiff would be considered for physical therapy if he received a less restrictive housing assignment. (Id. ¶¶ 130 - 131.) When Plaintiff filed a grievance, Defendant Riebe upheld the determination and advised Plaintiff to stretch and engage in light exercise. (Id. ¶¶ 137 - 139.) Plaintiff contends that Defendant Clinton's refusal to authorize a double mattress is retaliation for Plaintiff's grievance activity and for filing a complaint with the medical board. (Id. ¶ 154.)

         On October 13, 2015, Plaintiff informed Defendant Riebe that the single mattresses were of poor quality, contrary to the assumption of CCS. Defendant Riebe advised Plaintiff that she would ask Defendant Clinton to reconsider ordering a double mattress for Plaintiff. (Id. ¶¶ 169 - 170.) The next day, Defendant Riebe informed Plaintiff that Defendant Clinton “just won't budge.” (Id. ¶ 171.) Nevertheless, after a meeting with Dr. Clinton on October 20, 2015, Plaintiff received a “brand new” mattress that provided “notable relief” for approximately one month. (Id. ¶¶ 180, 182.)

         Plaintiff began experiencing severe pain and bruising after a month. He requested a special orthopedic mattress, but was issued “hip guards” that did not provide any relief. (Id. ¶¶ 185 - 191.) On January 25, 2016, Defendant Clinton reported that CCS could not authorize a double mattress because it would require CCS to make an exception for Plaintiff, which could impact CCS nationally. (Id. ¶ 197.)

         On February 17, 2016, Defendant Stockwell examined Plaintiff and recommended prolotherapy injections. (Id. ¶ 204.) Plaintiff agreed to the injections, but experienced extreme pain and discomfort for nearly a week. (Id. ¶ 206.)

         Plaintiff also experienced back pain, which he developed in March 2015. Defendant Stockwell informed Plaintiff that an x-ray revealed degenerative disk disease at L5. (Id. ¶ 223.) Defendant Stockwell, however, refused Plaintiff's requests for a desk and chair to perform legal work and a back-support belt to address pain related to his need to lean forward to do legal work while seated on his bunk. (Id. ¶ 226.) Defendants also denied Plaintiff's request for an MRI. (Id. ¶ 240.)

         In May 2016, Plaintiff expressed concern about “constant open sores on the soles of his feet and hair loss on [his] low back and lower legs, ” which Defendants “seemed to shrug off.” (Id. ΒΆ 255.) Plaintiff also reported worsening bruising of his left hip and groin, ...


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