United States District Court, D. Maine
NICHOLAS A. GLADU, Plaintiff,
CORRECT CARE SOLUTIONS, et al., Defendants.
AMENDED  ORDER AFFIRMING RECOMMENDED
DECISION AND ORDER
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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
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.
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 McDonough, 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. Id. at 6.
February 22, 2018, Mr. Gladu filed a motion for a physical
examination. Pl.'s Mot. for Phys. Exam. and Req. for
Expedited Resp. for 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.).
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
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).
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.
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.).
THE PARTIES' POSITIONS
Nicholas A. Gladu's Objection
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 1-2. Finally, Mr.
Gladu objected to the Magistrate Judge's decision to
exclude certain proffered medical treatises. Id. at