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Gladu v. Correct Care Solutions

United States District Court, D. Maine

July 24, 2018

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

          ORDER AFFIRMING RECOMMENDED DECISION AND ORDER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The Plaintiff, a state prisoner acting pro se, objects to a recommended decision of the Magistrate Judge in which the Magistrate Judge recommended that this Court deny the Plaintiff's motion for a physical examination. After performing a de novo review of this issue, the Court concludes that Federal Rule of Civil Procedure 35 does not apply to a party who is requesting a physical examination of himself and that the Plaintiff otherwise failed to meet the standards for the issuance of an injunction ordering such an examination.

         The Plaintiff also objects to the Magistrate Judge's non-dispositive order denying his request that certain medical treatises be admitted into the record. The Court overrules this objection because it agrees that the records do not fall within the standards for judicial notice under Federal Rule of Evidence 201 and that medical treatises, standing alone, may not substitute for expert opinion.

         I. BACKGROUND

         On December 29, 2017, Nicholas A. Gladu, a state prisoner acting pro se, filed a complaint in this Court pursuant to 42 U.S.C. § 1983 against Correct Care Solutions, Robert Clinton, M.D., Cindy McDon[]ough, nurse practitioner, and Wendy Riebe, health services administrator, claiming that in April 2017, he noticed a “palpable fracture-like anom[a]ly which was approximately 3-4 inches long on the left side of his skull.” Compl. ¶ 10. Mr. Gladu states that he has experienced “vision changes, visual disturbances, constant headache, vertigo, dizzy spells, tingling in his face and hands, skull pain and tenderness, shortness of breath, short-term memory problems, cognitive dysfunction, and more.” Id. ¶ 23. He also alleges a series of other problems, ranging from Vitamin D deficiency to renal dysfunction. Id. ¶¶ 27-58. He states that he has not received appropriate diagnostic procedures and treatment of these conditions. Id. ¶¶ 59-65. Mr. Gladu requests that the Court declare that the Defendants violated his Eighth Amendment right to medical care, issue an injunction requiring the Defendants to provide “x-rays of Plaintiff's skull and any necessary follow-up care determined thereafter, including treatment by an outside specialist, ” and compensatory and punitive damages.[1] Id. at 6.

         On February 22, 2018, Mr. Gladu filed a motion for a physical examination. Pl.'s Mot. for Phys. Exam. and Req. for Expedited Resps./or Waiver of Reply (ECF No. 19) (Pl.'s Mot.). On April 23, 2018, Mr. Gladu renewed his motion for physical examination. Pl.'s Renewed Mot. for Phys. Exam. and Req. for Expedited Resp. (ECF No. 46) (Pl.'s Renewed Mot.).

         On March 7, 2018, Mr. Gladu filed motions to admit certain medical treatises and medical records. Pl.'s Mot. to Admit Med. Treatises (ECF No. 23); Pl.'s Mot. to Include Attached Exs. (ECF No. 24, 31). On March 26, 2018, Mr. Gladu filed a motion for an expedited ruling on his motion to admit medical treatises. Pl.'s Mot. for Expedited Ruling on Mot. to Admit Med. Treatises (ECF No. 30).

         On May 14, 2018, the Defendants filed a response to all pending motions. Defs. Correct Care Solutions, Robert Clinton, M.D., Cindy McDonough, N.P. and Wendy Riebe, H.S.A.'s Resp. to Pl.'s Renewed Mot. for Phys. Exam. and Mot. for Expedited Resp. (ECF No. 56).

         On June 26, 2018, the Magistrate Judge issued a recommended decision in which he recommended that the Court deny Mr. Gladu's motions for physical examinations. Recommended Decision on Pl.'s Mots. for Phys. Exam. at 7 (ECF No. 72) (Recommended Decision). The Magistrate Judge also denied Mr. Gladu's motion to admit treatises and his motion for expedited ruling. Id. at 6-7 n.3.

         On July 5, 2018, Mr. Gladu filed an objection to the Magistrate Judge's recommended decision and to his ruling to exclude Mr. Gladu's medical treatises. Pl.'s Obj. to the Magistrate[']s Recommended Decision at 1-2 (ECF No. 77) (Pl.'s Obj.). On July 19, 2018, the Defendants filed a response to Mr. Gladu's objection. Defs. Correct Care Solutions, Robert Clinton, M.D., Cindy McDonough, N.P. and Wendy Riebe, H.S.A.'s Resp. to Pl.'s Obj. to Recommended Decision on Mots. for Phys. Exam. (ECF No. 83) (Defs.' Opp'n.).

         II. THE PARTIES' POSITIONS

         A. Nicholas A. Gladu's Objection

         Mr. Gladu objected first on the ground that the Magistrate Judge erred in construing his motion for a physical examination as a request for preliminary injunctive relief. Pl.'s Obj. at 1. Mr. Gladu then objected to the Magistrate Judge's conclusion that he failed to demonstrate the standards for granting injunctive relief, stating that-contrary to the Magistrate Judge's assessment-he does suffer from medical conditions that require an examination and treatment. Id. at ...


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