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Gladu v. Correct Care Solutions

United States District Court, D. Maine

October 23, 2019

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

          ORDER AFFIRMING IN PART AND REJECTING IN PART THE RECOMMENDED DECISION ON DEFENDANTS' MOTION TO DISMISS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The 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.

         In this 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 judicata.

         I. BACKGROUND

         A. Procedural History

         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 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).

         On 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).

         Meanwhile, 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.

         B. The Allegations in the Complaints

         1. The Original Complaint Filed December 29, 2017

         Mr. 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. ¶¶ 24-28.

         Mr. 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, 47.

         2. The Amended Complaint Filed June 11, 2018

         In the 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.

         Mr. 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.[1] Id. at 7.

         The 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.).

         II. THE PARTIES' POSITIONS

         A. The Defendants' Motion to Dismiss

         The CCS 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 & n.3.

         Specifically, 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)).

         The CCS 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.

         In the 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.

         B. The Plaintiff's Opposition

         Mr. 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.

         In 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 defense.” Id.

         Finally, 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)).

         III. THE RECOMMENDED DECISION

         In his 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.

         A. Complaint in the Prior Action

         In 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 necessary.” Id.

         The 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).

         B. Complaint in ...


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