United States District Court, D. Maine
NICHOLAS A. GLADU, Plaintiff
CORRECT CARE SOLUTIONS, et al., Defendants
RECOMMENDED DECISION ON DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT AND ORDER ON PLAINTIFF'S RECORD-RELATED
C. Nivison U.S. Magistrate Judge
action, Plaintiff Nicholas Gladu alleges that Defendants have
acted with deliberate indifference to his serious medical
needs, discriminated against him on the basis of disability,
retaliated against him for engaging in conduct protected
under the First Amendment, and breached duties owed to him
under Maine law.
matter is before the Court on Defendants' motions for
summary judgment. (Motion for Summary Judgment of Defendants
Maine Department of Corrections and Susan Carr, ECF No. 261;
Motion for Summary Judgment of Defendants Correct Care
Solutions, Robert Clinton, M.D., George Stockwell, D.O., and
Wendy Riebe, ECF No. 266.) In addition, the matter is before
the Court on Plaintiff's Motion for the Court to Take
Judicial Notice (ECF No. 369); Motion to Strike the
Supplemental Declaration of Robert Clinton, M.D. (ECF No.
376); Motion for Consideration of New Evidence (ECF No. 462);
Motion to Add New Evidence to the Record (ECF No. 463); and
Motion for Judicial Notice (ECF No. 471).
a review of the record and after consideration of the
parties' arguments, I grant Plaintiff's motions
requesting the consideration of certain evidence, deny
Plaintiff's motions for judicial notice and motion to
strike, and recommend the Court grant Defendants' motions
for summary judgment.
Plaintiff's Motion to Strike the Supplemental Declaration
of Dr. Clinton
response to the declaration Plaintiff filed in connection
with the summary judgment motion, Defendant Correct Care
Solutions (CCS) filed a supplemental declaration of Dr.
Clinton. (ECF No. 357-1.) Plaintiff, challenging certain
assertions in the declaration, asks the Court to strike the
declaration. The record reflects that regardless of the merit
of the assertions made in the declaration, CCS reasonably
sought to address through the declaration certain issues
raised by Plaintiff in his response to the summary judgment
filing. Furthermore, through his filings, Plaintiff has
addressed his objections to Dr. Clinton's assertions. The
information included in the declaration and in
Plaintiff's response is relevant to the summary judgment
issues. Plaintiff's motion to strike, therefore, is
denied. The information included in the declaration and in
Plaintiff's response will be considered as part of the
summary judgment record.
Plaintiff's Motions for the Court to Take Judicial
moves the Court, as part of the summary judgment analysis, to
take notice of two medical treatises he cites in support of
his claims. (ECF No. 369.) In addition, Plaintiff requests
that the Court take notice that certain of Plaintiff's
symptoms are symptoms that persons with Cushing Syndrome
experience. (ECF No. 471.)
Rule of Evidence 201(b) provides that the Court “may
judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known or within the
trial court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b).
has not identified any specific facts of which he asks the
Court to take judicial notice. Instead, Plaintiff evidently
asks the Court to take judicial notice of the entire
treatises. Plaintiff has not established that either
treatise, or any of the content of the treatises, constitutes
a fact for which the Court should take judicial notice in
accordance with Evidence Rule 201(b).
addition, Plaintiff asks the Court to take notice that
Plaintiff suffers from certain symptoms and that the symptoms
are experienced by a person with Cushing Syndrome. In support
of his request, Plaintiff asserts he relies upon information
contained in a medical book entitled Current Medical
Diagnosis and Treatment (2015). On this record, at least
some of the symptoms experienced by Plaintiff are subject to
reasonable dispute. In addition, Plaintiff in essence asks
the Court, by judicial notice, to determine that Plaintiff in
fact suffers from a certain condition. Plaintiff's
diagnosis is the subject of medical opinion and is not a fact
that is “not subject to reasonable dispute” as
contemplated by Federal Rule of Evidence 201.
Plaintiff's Motions Requesting Consideration of
moves for the consideration of supplemental evidence.
Specifically, Plaintiff asks the Court to consider his sworn
statement (a) that following his request in October 2017 to
commence physical therapy, Defendants have not provided
Plaintiff with physical therapy (ECF No. 462) and (b) that a
laboratory report of blood work from November 2009 reflects
that Plaintiff's glucose and testosterone levels were
high at the time. (ECF No. 463.) Although Plaintiff filed the
evidence after the close of the summary judgment briefing
schedule, the evidence will be considered as part of the
summary judgment record.
Judgment Facts 1.Summary Judgment Statement
of the Correct Care Solutions
following facts introduced by the Correct Care Solutions
Defendants (CCS Defendants),  through their summary judgment
statement of material facts, are supported by record
citation. (ECF No. 267.) Plaintiff has filed a
“statement of disputed factual issues, ” through
which statement Plaintiff denies or qualifies many of the
statements offered by the CCS Defendants. (ECF No. 342.)
Plaintiff, however, did not support his qualifications and
denials with record citations.
Clinton serves as the Regional Medical Director for CCS,
which provides health care services to inmates within the
State of Maine's correctional facilities, including the
Maine State Prison and the MCC. (ECF No. 267, ¶ 1.) As
the Regional Medical Director, Dr. Clinton generally oversees
the medical care provided to inmates and he also provides
some direct care to patients, including Plaintiff.
(Id. ¶ 2.) Dr. Clinton has been involved in
Plaintiff's health care treatment since 2013.
(Id. ¶ 3.)
George Stockwell, D.O., is a board certified osteopathic
physician, who works as an urgent care physician at Mercy
Express Care in Windham, Maine, a position he has held for
nearly 8 years. (Id. ¶ 4.) Dr. Stockwell has
also worked as a contract physician for CCS, and in that
capacity has provided health care services to inmates at the
MCC. (Id. ¶ 5.) In this role, Dr. Stockwell
provided care and treatment to Plaintiff. (Id.
Wendy Riebe is a licensed registered nurse, who serves as the
Health Services Administrator (HSA) for CCS, a position she
has held for three years. (Id. ¶ 7.) As the
HSA, Ms. Riebe coordinates and monitors the implementation of
health care services, including mental health, at the MCC,
oversees health care staff at MCC, maintains administrative
and fiscal functions of the MCC health care unit consistent
with the CCS contract with the Maine Department of
Corrections, including budgeting matters, and responds to
patient complaints regarding the health care provided by CCS.
(Id. ¶ 8.) Although Ms. Riebe does not provide
direct patient care, she is responsible for the delivery of
health care services to patients at the MCC. (Id.
believes he is suffering from an undiagnosed but serious
underlying medical condition that he asserts is causing him
chronic and often severe physical pain in his hips and lower
back and at times in various other joints. (Id.
¶ 10.) Plaintiff reports sores on his legs and feet, dry
and itchy skin on the soles of his feet and various spots of
hair loss on his legs and lower back; he believes the
conditions reflect a serious health condition. (Id.
suffers from bilateral trochanteric bursitis which causes him
hip pain, and for which Dr. Clinton, Dr. Stockwell and other
members of the medical staff have provided treatment,
including a trial of pain relievers, exercises, prolotherapy
injections, topical cream, and special medical shoes; they
have also encouraged Plaintiff to participate in yoga to
alleviate the physical discomfort of which he complains.
(Id. ¶ 12.)
to Defendants, although Plaintiff reports that he is in pain
as the result of the conditions about which he complains, the
reported condition does not affect his level of function.
(Id. ¶ 13.) Plaintiff functions normally within
the correctional environment, has a normal gait, walks
without a limp and at a brisk rate of speed, participates in
recreational activities including softball and yoga, is able
to move about the examination room easily, and presents no
objective evidence that he is physically limited in any way.
(Id. ¶ 14.) Dr. Clinton asserts that serious
musculoskeletal or rheumatic medical conditions involve signs
and symptoms that correlate with a patient's function.
(Id. ¶ 15.)
provides a multidisciplinary approach to Plaintiff's
treatment. The approach involves treatment by physicians,
psychiatrists, nurse practitioners, behavioral health
specialists, and mental health care providers. (Id.
¶ 16.) The treatment team meets on an as needed basis,
including with representatives from the correctional staff,
to discuss the treatment. (Id. ¶ 17.) In
addition, the medical department has weekly provider calls,
which include psychiatry, and Plaintiff is one of the
patients about whom the department speaks regularly in order
to provide him with consistent and appropriate care.
(Id. ¶ 18.) Occasionally, the team meets with
Plaintiff to discuss the medical plan and to address his
questions and concerns. (Id. ¶ 17.) The
assessments of the multidisciplinary team support the plan of
care the health care team is providing to Plaintiff.
(Id. ¶ 19.)
Clinton and Dr. Stockwell have explained to Plaintiff
extensively the reasons for the treatment decisions.
(Id. ¶ 20.) According to Dr. Clinton,
throughout the course of Plaintiff's treatment, there has
been no clinical evidence of cancer, an autoimmune disease,
or a serious underlying medical condition that would be
responsible for Plaintiff's subjective symptoms. Rather,
his symptoms are consistent with trochanteric bursitis in his
hips, folliculitis on his arms, dry and itchy feet, and
occasionally athlete's foot. (Id. ¶ 22.)
Stockwell first saw Plaintiff on April 21, 2015. At that
time, Plaintiff was considering injections to both greater
trochanteric areas as a way to alleviate his pain, which was
a therapy he had discussed with Dr. Clinton. (Id.
¶ 23.) Dr. Stockwell injected both hips with
triamcinolone and lidocaine, which treatment provided
Plaintiff with an immediate reduction in pain. Dr. Stockwell
prescribed a 3-day course of ibuprofen to support that
relief. (Id. ¶ 24.)
13, 2015, Plaintiff reported that he could not sleep because
of pain, and he asked if he could be given an extra mattress.
(Id. ¶ 28.) Pursuant to CCS protocol, a double
mattress will be provided when a patient is in the second
trimester of pregnancy or later, suffers from active skin
ulcerations, suffers from acute congestive heart failure
exacerbation or acute deep vein thrombosis. (Id.
¶ 26.) On occasion, a patient's condition might
warrant a short term prescription for a double mattress; for
example, when a patient is recovering from hip surgery.
(Id. ¶ 27.) Although Plaintiff did not meet the
criteria for a double mattress, Dr. Clinton discussed with
the nurse practitioner that it might be medically necessary
to prescribe one for him if the extra blanket and pillow
previously prescribed were not effective in allowing
Plaintiff to sleep. (Id. ¶ 29.)
assess Plaintiff's ability to sleep, Dr. Clinton asked
the Department of Corrections to perform a sleep log to
document Plaintiff's sleeping pattern. (Id.
¶ 30.) On July 25, 2015, Dr. Clinton met with the unit
manager, case manager, and Plaintiff to discuss the results
of the sleep log which documented that Plaintiff was observed
to be sleeping through the night on the nights assessed.
(Id. ¶ 33.) Dr. Clinton explained that in order
to provide Plaintiff with a double mattress, he needed to see
a correlation between the observed level of function and
Plaintiff's reported inability to sleep. (Id.
¶ 34.) Because Dr. Clinton did not find a correlation,
Dr. Clinton determined that a double mattress was not
medically necessary. (Id. ¶ 35.)
was referred for an orthopedic consult to determine whether
he was a candidate for iliotibial band surgery based on his
complaints of hip pain. (Id. ¶ 31.) After
examining Plaintiff in August 2015, Dr. Wayne Piers diagnosed
Plaintiff with trochanteric bursitis, and concluded there was
no need for surgery. He recommended a double mattress and an
egg crate mattress, and physical therapy. He also suggested
that an MRI might be warranted at some future date based on
Plaintiff's condition. (Id. ¶ 39.)
Dr. Piers recommended a double mattress and an egg crate
mattress, Dr. Clinton contacted him to discuss whether the
recommended treatment was medically necessary. (Id.
¶ 40.) Dr. Piers explained to Dr. Clinton that a double
mattress or egg crate was not medically necessary to treat
Plaintiff's condition, but that Plaintiff had raised the
issue and requested the items. (Id. ¶ 41.)
medical clinic on August 17, 2015, Dr. Clinton discussed with
Plaintiff the conversation with Dr. Piers. (Id.
¶ 42.) Dr. Clinton informed Plaintiff that the medical
staff would continue to monitor his function and make
treatment decisions based on the relationship between their
observations and his reports of symptoms. Dr. Clinton also
reviewed with Plaintiff his sleep log, which reflected that
he sleeps through the night. (Id. ¶ 43.) During
the clinic visit, Dr. Clinton observed Plaintiff demonstrate
excellent function when he got up from his chair and walked
in the exam room. (Id. ¶ 44.) Dr. Clinton
advised Plaintiff that he would be referred to physical
therapy after he was released from one of the secure housing
units. Plaintiff agreed with the plan. (Id. ¶
September 29, 2015, Dr. Clinton met with Plaintiff and the
nurse practitioner to discuss several issues. Plaintiff
reported that he had noticed some improvement in his pain
since starting the new medication and, although he believed
that pain affected his ability to function, he reported that
he was able to participate in indoor and outdoor recreation.
(Id. ¶ 46.) Plaintiff asked that the providers
inspect his mattress, which he felt was substandard. Dr.
Clinton recommended that he contact the Department of
Corrections to evaluate his mattress if he felt it was
substandard. Plaintiff requested an MRI. Dr. Clinton advised
Plaintiff that an MRI was not indicated as his function was
normal. (Id. ¶ 48.) Dr. Clinton ordered an
x-ray of Plaintiff's left hip, the results of which were
normal. (Id. ¶ 49.) Plaintiff was offered
physical therapy at the Maine State Prison in October 2015,
which he refused. (Id. ¶ 50.) The decision to
send Plaintiff to physical therapy at Maine State Prison
rather than at a private facility is based on security
concerns and is a decision that is not made by the medical
department. (Id. ¶¶ 51 - 52.) Dr.
Stockwell has provided Plaintiff with exercises to perform
and Plaintiff also participates in yoga as a means to help
treat his complaints of hip pain. (Id. ¶ 53.)
clinic visit on or about October 20, 2015, Dr. Clinton
explained to Plaintiff that his hip x-rays were normal.
Plaintiff again requested an MRI of his right hip.
(Id. ¶ 54.) Dr. Clinton advised Plaintiff that
given his level of function, an MRI was not necessary.
(Id. ¶ 55.) Dr. Clinton and Plaintiff also
discussed the fact that Plaintiff was on a list for a new
mattress, and Dr. Clinton recommended that he place an extra
blanket under his hip for extra cushioning. (Id.
¶ 56.) At the next clinic visit on November 9, 2015,
Plaintiff reported improvement in his condition. He reported
that his medical issues were being addressed satisfactorily
and appropriately. (Id. ¶ 57.)
about January 11, 2016, Dr. Clinton ordered new medical shoes
for Plaintiff because the shoes issued by the Department of
Corrections had not relieved his pain. Dr. Clinton and
Plaintiff discussed that medical shoes would be discontinued
if/when his trochanteric pain resolved. (Id. ¶
February 17, 2016, Plaintiff reported to Dr. Stockwell
complaints of hip, groin, and low back pain. Dr. Stockwell
examined Plaintiff, reviewed x-rays, and assessed Plaintiff
with bilateral greater trochanteric bursitis or more likely
bursosis, left groin pain that was likely a muscular strain,
back pain, and a dissatisfaction with his medical care.
(Id. ¶ 60.) Dr. Stockwell discussed with
Plaintiff a trial of prolotherapy. After reviewing materials
provided by Dr. Stockwell, Plaintiff decided to proceed with
the therapy. Dr. Stockwell subsequently injected both greater
trochanteric areas with a dextrose 50% and lidocaine mix.
(Id. ¶¶ 62 - 63.)
next met with Plaintiff on March 9, 2016, Dr. Stockwell spent
nearly an hour with him discussing his medical condition and
answering his questions about his complaints and treatment.
(Id. ¶ 68.) Plaintiff declined to proceed with
further prolotherapy unless he could have an extra mattress
or pain medications as the injection had caused him too much
pain. He complained of bruising on his hips and attributed
his pain to the lack of a supportive mattress. He also
complained of low back pain and requested a back brace.
(Id. ¶ 69.) Plaintiff reiterated his request
for an MRI because he believed that the medical department
was missing something. He was concerned that he could have
cancer and that the medical providers would not discover the
source of his pain until it was too late to treat the
condition. Dr. Stockwell explained that he did not see a
medical necessity for an MRI. (Id ...