United States District Court, D. Maine
NICHOLAS A. GLADU, Plaintiff,
CORRECT CARE SOLUTIONS, et al., Defendants.
ORDER AFFIRMING IN PART AND REJECTING IN PART THE
RECOMMENDED DECISION ON DEFENDANTS' MOTION TO
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
federal courts are not an appropriate forum for
hypochondriacal inmates based on their symptoms alone to
force prisons to seek out and obtain second medical opinions.
At the same time, federal courts are not equipped without
assistance from the medical profession to distinguish between
the hypochondriac and the truly ill. To make this critical
distinction, the Court must rely on the medical evidence.
case, based on the medical evidence before it, the Court
dismisses without prejudice the medical defendants'
motion to dismiss on two areas where the inmate alleged
potentially serious medical conditions, claimed that some
medical professionals recommended referral to specialists,
and asserted that the medical professional defendants
countermanded the referrals. Otherwise, the Court accepts the
Magistrate Judge's recommended decision to dismiss the
inmate's complaint as barred by principles of res
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 (CCS Defendants).
Compl. (ECF No. 1). On April 16, 2018, the CCS
Defendants moved to dismiss the complaint. Mot. to
Dismiss (ECF No. 40) (Defs.' Mot.). After
several filings concerning evidentiary issues, Mr. Gladu
filed a motion for leave to file an amended complaint on June
11, 2018. Mot. for Leave to File Am. Compl. and
Supplemental Compl. (ECF No. 62). That same day, Mr.
Gladu opposed the CCS Defendants' motion to dismiss,
Resp. in Opp'n to Mot. to Dismiss (ECF No. 64)
(Pl.'s Opp'n), and on June 22, 2018, the CCS
Defendants replied. Reply to Resp. to Mot. to
Dismiss (ECF No. 67) (Defs.' Reply).
October 3, 2018, the Magistrate Judge issued a recommended
decision, granting the motion to amend the complaint and
recommending that the complaint as amended be dismissed.
Order on Mot. to Amend and Recommended Decision on Mot.
to Dismiss (ECF No. 107). On October 12, 2018, Mr. Gladu
objected to the recommended decision. Pl.'s Obj. to
Recommended Decision on Mot. to Dismiss (ECF No. 110).
On October 25, 2018, the CCS Defendants responded. Defs.
Correct Care Solutions, Robert Clinton, M.D., Cindy
McDonough, N.P. and Wendy Riebe, H.S.A.'s Reply to Pl.
Gladu's Obj. to the Report and Recommended Decision on
the Mot. to Dismiss (ECF No. 111).
on June 26, 2018, the Magistrate Judge recommended that the
Court deny Mr. Gladu's motions for physical examination.
Recommended Decision on Pl.'s Mots. for Physical
Examination (ECF No. 72). On July 5, 2018, Mr. Gladu
objected to the Magistrate Judge's recommended decision.
Pl.'s Obj. to the Magistrate Judge's Recommended
Decision (ECF No. 77). On July 19, 2019, the CCS
Defendants responded. Defs. Correct Care Solutions,
Robert Clinton, M.D., Cindy McDonough, N.P. and Wendy Riebe,
H.S.A.'s Reply to Pl. Gladu's Obj. to the Report and
Recommended Decision on the Mots. for Physical
Examination (ECF No. 83). On July 24, 2018, this Court
affirmed the recommended decision and on July 25, 2018, this
Court issued an amended order to the same effect. Order
Affirming Recommended Decision and Order (ECF No. 84);
Amended Order Affirming Recommended Decision and
Order (ECF No. 85). On August 2, 2018, Mr. Gladu filed a
notice of appeal of the Amended Order Affirming Recommended
Decision and Order to the Court of Appeals for the First
Circuit. Notice of Appeal (ECF No. 90). During the
pendency of the appeal, Mr. Gladu's objection to the
recommended decision on the CCS Defendants' motion to
dismiss was effectively stayed. On October 1, 2019, the Court
of Appeals for the First Circuit issued a decision, affirming
the Court's July 25, 2018 amended order, and on October
22, 2019, the First Circuit issued its mandate, thereby
returning jurisdiction to this Court.
The Allegations in the Complaints
The Original Complaint Filed December 29, 2017
Gladu's original Complaint alleges 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 leading up to and following that date, he 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. Mr. Gladu declares that
approximately four months later, the CCS Defendants referred
him to a visiting optometrist, who told Mr. Gladu that
“he suspected diabetes as a likely cause” of his
vision issues, and “said that he was going to ask Ms.
Riebe to have Plaintiffs' serum glucose levels monitored
(3x per day for 30 days)” but that his glucose levels
were only checked once or twice subsequently. Id.
Gladu further states:
From September 2016 through December 2017, Plaintiff
submitted numerous sick call complaints indicative of an
underlying serious medical condition with unresolved symptoms
(E.g.; chronic pain, repeated fevers of unknown origin,
lymphadenopathy, fluid management issues, high susceptibility
to infection, constant headache and pressure sensation,
visual changes, visual disturbances, unexplained vertigo and
shortness of breath, night sweats, repeated sinusitis, skull
pain and tenderness, eustachian tube dysfunction, etc.).
Id. ¶ 29. He alleges that during this time,
despite submitting numerous sick call complaints,
“Plaintiff was continuously subject to unnecessary
delay of access to medical care and treatment.”
Id. ¶ 30. He also states that “[f]rom
October 2010 through December 2017, Plaintiff's labwork
has consistently shown clinical signs of renal dysfunction.
Renal dysfunction is common in metabolic bone disease.”
Id. ¶ 48. Additionally, Mr. Gladu alleges that
a November 2009 blood test revealed that
“Plaintiff's Vitamin D level was at the absolute
lowest limit permitted for the normal range, ” yet
“the defendants and their agents have and continue to
ignore Plaintiff's requests for updated testing of his
Vitamin D . . . levels.” Id. ¶¶ 42,
The Amended Complaint Filed June 11, 2018
amended complaint Mr. Gladu filed on June 11, 2018, he
included additional facts alleging that the Defendants failed
to respond to his new symptoms. Mot. for Leave to File
Am. Compl. and Suppl. Compl., Attach. 1, First Am.
Compl. ¶¶ 57-63 (ECF No. 62-1) (Am.
Compl.). He states that from January 2017 to June 2018
he suffered from “unexplained hypertension, ” and
that Defendants Clinton and McDonnough failed to follow up or
monitor Mr. Gladu's response to the prescribed treatment
of Propranolol. Id. ¶ 57. He also suffered from
“notable chest pain that radiates to his left
arm” beginning in May of 2018, but he “waited
well over 5-7 days [for] each complaint to be triaged by a
CCS nurse, ” and he has not been examined by a medical
practitioner for this symptom. Id. ¶ 59. He
further claims that, since March of 2018, he “has been
suffering numerous black spots in his peripheral vision and
[has had] bouts of double vision, ” which the
optometrist at Maine State Prison felt warranted a referral
to an outside ophthalmologist and medical imaging studies,
but that “Defendant Clinton intervened and canceled the
appointment in an effort to prevent Plaintiff's
condition/symptoms form being documented by an unbiased
physician . . ..” Id. ¶¶ 60-61.
Gladu requests the Court declare that the CCS Defendants
violated his Eighth Amendment right to medical care, issue an
injunction requiring the CCS Defendants to provide
“x-rays of Plaintiff's skull and any necessary
follow-up care determined thereafter, including treatment by
an outside specialist, ” and award compensatory and
punitive damages. Id. at 7.
Magistrate Judge issued a recommended decision on October 3,
2018, granting Mr. Gladu's motion to amend and
recommending that the Court grant the CCS Defendants'
motion to dismiss. Report and Recommended Decision re
Mot. to Dismiss (ECF No. 107) (Recommended
Decision). On October 12, 2018, Mr. Gladu objected.
Obj. to Report and Recommended Decision (ECF No.
110) (Pl.'s Obj.). The CCS Defendants responded
to Mr. Gladu's objection on October 25, 2018. Resp.
to Obj. to Report and Recommended Decision (ECF No. 111)
(Defs.' Resp. to Pl.'s Obj.).
THE PARTIES' POSITIONS
The Defendants' Motion to Dismiss
Defendants argue that Mr. Gladu's Complaint is precluded
by this Court's prior judgment. Defs.' Mot.
at 2 (citing Gladu v. Correct Care Solutions, Docket
No. 2:15-cv-00384-JAW (ECF No. 512) (D. Me. Dec. 18, 2017)
(Prior Action). They argue that the current
Complaint is made up entirely of claims that “were or
could have been raised in that action.” Id. at
1 (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)).
According to the CCS Defendants, Mr. Gladu's primary
claim in the prior action was that they acted with deliberate
indifference to his serious medical needs, in violation of
the Eight Amendment. Id. at 2. Although Mr.
Gladu's original complaint focused primarily on the CCS
Defendants' mistreatment of his hip pain, and his current
action alleges a “slightly different constellation of
symptoms, ” the CCS Defendants contend that the factual
predicates to the claims in both complaints make up a series
of connected transactions that form a “common nucleus
of operative facts.” Id. at 7 (citing
Apparel Art Int'l v. Amertex Enters., 48 F.3d
576, 583-84 (1st Cir. 1995)). The CCS Defendants further
argue that “the fact that certain alleged evidentiary
support for that claim arose after the filing of the original
complaint does not change the nature of the claim, ”
because “the Court did consider much of this evidence
in addressing Mr. Gladu's claim in the original
proceeding that he suffered from a different serious
underlying medical condition.” Id. at 10 &
the CCS Defendants note that following his original complaint
in the prior action, Mr. Gladu filed evidence of blood work
panels and a declaration in which he provided a revised list
of symptoms asserting he believes he is suffering from
Cushing Syndrome. Id. at 11 (citing Prior
Action, Mot. to Add New Evid. to the Record,
Attach. 1, Lab Report (ECF No. 463); Prior
Action, Attach. 2, Copy of a Letter and Decl. of
Nicholas A. Gladu, (ECF No. 463)). Mr. Gladu also
alleged in a separate declaration that he attributed a
“skull anomaly” to Cushing Syndrome. Id.
(citing Prior Action, Declaration, (ECF No.
473) (Decl. in Prior Action)). This additional
evidence was weighed by the Magistrate Judge in his
recommended decision on the CCS Defendants' motion for
summary judgment. Id. (citing Prior Action,
Report and Recommended Decision re Mot. for Summary J.
(ECF No. 512)).
Defendants contend that the fact that Mr. Gladu included
Cindy McDonough as a defendant in this action, when she was
not a party to the previous action, does not prevent the
Court from dismissing the present action under the doctrine
of claim preclusion because the “two causes of action
involve parties who ‘are sufficiently identical or
closely related.'” Id. at 12 (citing
Airframe Sys. v. Raytheon Co., 601 F.3d 9, 14 (1st
Cir. 2010)). Here, the CCS Defendants argue, Ms. McDonough,
as a health care provider for CCS, “is closely related
to the parties in the original cause of action.”
Id. at 13.
alternative, the CCS Defendants argue that Mr. Gladu's
Complaint should be dismissed for failure to state a claim.
They contend that Mr. Gladu has failed to “assert
‘acts or omissions sufficiently harmful to evidence
deliberate indifference, '” id. at 15
(citing Estelle v. Gamble, 429 U.S. 97, 105-06
(1994)), and that there is no evidence of deliberate
indifference on the part of the Defendants in treating Mr.
Gladu. Id. at 16. The CCS Defendants cite Davis
v. Gusman, No. 09-7195, 2010 U.S. Dist. LEXIS 41550, at
*49 (E.D. La. Apr. 13, 2010), as support for their position
that “[m]ere delay in receiving care is not in and of
itself a constitutional violation.” Id. at 17.
The Plaintiff's Opposition
Gladu opposes the motion, arguing that the CCS
Defendants' contention that the earlier case and the
current case arise from the same set of facts is incorrect.
Pl.'s Opp'n at 1. He says that “[e]ven
if there is some factual overlap - res judicata will not
apply.” Id. (citing Baker Group L.C. v.
Burlington N. & Sante Fe Ry. Co., 228 F.3d 883, 886
(8th Cir. 2000); Thomas v. Evans, 880 F.2d 1235,
1240-41 (11th Cir. 1989) (citation altered in ordering)). Mr.
Gladu contends that the first cause of action alleged
deliberate indifference to serious medical needs for hip and
back pain, while “the current case alleges deliberate
indifference to serious medical needs for skull fractures,
eye complaints, neurologic symptoms, and more.”
Id. He further argues that most of the symptoms he
alleges in the present action “occurred well after the
filing of that earlier case.” Id. Mr. Gladu
says “[i]f Plaintiff was subjected to subsequent
medical mistreatment, he should be able to bring two lawsuits
even if the same parties are involved.” Id.
response to the CCS Defendants' alternative argument that
Mr. Gladu failed to state a claim, he argues that he has
“stated facts that would permit a lay person to
conclude that his medical problems were serious.”
Id. at 2. He also avers that the CCS Defendants
“rely on many irrelevant citations to advance such
Mr. Gladu states that the Court must ignore the materials
submitted by the CCS Defendants outside the Complaint or
convert the motion into a motion for summary judgment.
Id. at 2 (citing Fed.R.Civ.P. 12(d); GFF Corp.
v. Associated Wholesale Grocers, Inc., 130 F.3d 1381,
1384 (10th Cir. 1997)).
THE RECOMMENDED DECISION
recommended decision, the Magistrate Judge granted Mr.
Gladu's motion to amend his Complaint, and recommended
the Court grant the CCS Defendants' motion to dismiss.
Recommended Decision at 2. The Magistrate Judge
compared the complaints in the prior and current actions.
Complaint in the Prior Action
describing the prior complaint, the Magistrate Judge stated:
“[i]n an amended complaint filed on December 5, 2016,
Plaintiff describes a history of chronic pain in the hip
region and his inability to obtain relief despite numerous
palliative approaches taken by staff of Defendant Correct
Care Solutions.” Id. (citing Prior
Action, Compl.). The Magistrate Judge noted
that Mr. Gladu alleged a skull anomaly in April 2017, which
the Magistrate Judge addressed in his recommended decision on
Mr. Gladu's motion for a temporary restraining order and
preliminary injunction, which this Court affirmed.
Recommended Decision at 4 (citing Prior Action,
Recommended Decision on Mot. for Temporary Restraining Order
and Prelim. Inj. at 4-5 (ECF No. 405)). The Magistrate
Judge concluded that after the examination, which included a
neurological exam and an assessment of Plaintiff's
complaint about his skull, a physician determined that
Plaintiff did not suffer from a serious head-related
condition and that no imaging of Plaintiff's head was
Magistrate Judge further noted that in his recommended
decision on the motions for summary judgment in the prior
action, he outlined the litany of symptoms cited as evidence
of Mr. Gladu's belief that he has “a serious
underlying medical condition, such as non-Hodgkin lymphoma,
chronic eosinophilic leukemia, myeloproliferative disorders,
autoimmune disease, or a systemic infection.”
Recommended Decision at 3 (citing Prior Action,
Recommended Decision on Mots. for Summary J. at 18 (ECF
No. 512)). He stated that “[m]ore recently, Plaintiff
appears to advance a different explanation for some of his
symptoms. . . . Based on blood work panels reported in 2009,
and a new declaration in which he provides a revised list of
his symptoms, Plaintiff asserts that he believes he is
suffering from Cushing Disease.” Id. The
Magistrate Judge recommended granting summary judgment in
favor of the CCS Defendants, which this Court affirmed,
concluding that according to the evidence, “the CCS
medical professionals have been attentive to Mr. Gladu, have
arrived at a diagnosis that has been confirmed by an outside
specialist, and have generally agreed on the proper
treatment. Mr. Gladu has failed on this record to demonstrate
deliberate indifference on the part of CCS.” Prior
Action, Order Adopting Report and Recommended
Decision for Mot. for Summary J. at 14-15 (ECF No. 541).
Complaint in ...