2018 | Cited 0 times | D. Maine | October 3, 2018


DISTRICT OF MAINE NICHOLAS A. GLADU, ) Plaintiff, ) v. ) 2:17-cv-00504-JAW CORRECT CARE SOLUTIONS, et al., ) Defendants )

ORDER ON MOTION TO AMEND AND RECOMMENDED DECISION ON MOTION TO DISMISS In this action, Plaintiff, an inmate at the Maine State Prison, alleges Defendants, who are medical providers at the prison, have demonstrated deliberate indifference toward his serious medical needs.

The m ECF No. 40), 67/71 Amend (ECF No. 62). Through their motion, Defendants request s action

based on the doctrine of res judicata given Gladu v. Correct Care Solutions, No. 2:15-cv-384-JAW (the prior action), or, in the alternative, based failure to state an actionable claim. 1

Through his motion to amend, Plaintiff seeks to supplement his complaint to reference some of his most recent interactions with Defendants.

1 s judgment in the prior action, the Court should stay further proceedings in this matter until the First Circuit has ruled on the appeal.

arguments, I grant the motion to amend, and recommend the Court grant the motion to dismiss.

Background A. The Prior Action On September 23, 2015, in the prior action, Plaintiff joined as defendants Correct Care Solutions and several other medical providers at the prison. In his original complaint, Plaintiff alleged the defendants did not treat appropriately . In an amended complaint filed on December 5, 2016, Plaintiff described 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.

In January, 2017, the defendants filed motions for summary judgment in which they set course of treatment, and argued the record would not support a finding that Process Clause. (ECF Nos. 261, 266.) Plaintiff subsequently filed a motion to compel imaging studies and reports and a motion for injunctive relief, among other motions. (ECF No. 370, 371.) In an affidavit in support of his motions, Plaintiff described a skull anomaly, and argued that all of his various symptoms (including but not limited to his hip condition) were evidence of a serious underlying disease process that the defendants refused to acknowledge. (ECF No. 370-1.) As noted in the in which Plaintiff asked the Court to order the defendants to provide appropriate care for various medical conditions, the stablishes that as recently as April 22, 2017, after examining Plaintiff in the emergency department at Maine Medical Center, which examination included a neurological exam and an assessment

not suffer from a serious head- Given this record, Plaintiff has not established he is likely to prevail on his deliberate indifference claim against Defendants. ECF No. 405, Recommended Decision on Motion for Temporary Restraining Order and Preliminary Injunction at 4 5.)

On December 18, 2017, I issued a recommended decision on the Motions for Summary Judgment. (ECF No. 512.) In the recitation of the material facts, I summarized some of as follows:

Citing some of the medical records, Plaintiff asserts that certain lymph node symptoms support the inference that his current symptoms are the product of the gradual progression of a serious underlying medical condition, such as non- Hodgkin lymphoma, chronic eosinophilic leukemia, myeloproliferative disorders, autoimmune disease or systemic infection. Based on his review of medical reference material such as Hematology in Clinical Practice (5th ed.) and Current Medical Diagnosis and Treatment (2015), Plaintiff believes that adequate care requires that CCS conduct differential diagnostic testing to rule out these diseases. Plaintiff contends that an MRI would also advance the differential diagnosis, and that an MRI is within the standard of care in accorda Plaintiff asserts that the CCS staff have little interest in his complaints regarding medical care, have treated him as a nuisance, and that the alleged deficiencies in his care are, in part, retaliatory. More recently, Plaintiff appears to advance a different explanation for some of his symptoms and a different possible diagnosis. 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. (Recommended Decision at 18.) After review of the summary judgment record, I recommended the record failed to reveal (1) an objectively serious, undiagnosed medical condition that posed a serious risk of harm to medical needs. (Id. at 22 23.)

On February 14, 2018, the Court adopted the Recommended Decision. In its concluding summary, the Court made the following observation:

In short, Mr. Gladu presents a case where the doctors, including the specialist, agree on his primary diagnosis, that is, bilateral trochanteric bursitis, and agree generally on the proper treatment. For his own reasons, Mr. Gladu simply disagrees with the medical professionals and worries that he has medical conditions no medical professional has diagnosed. Although he is focused on his perceived need for an MRI scan, there is no evidence in this record that Dr. Piers actually ordered an MRI scan, only that Dr. Piers suggested an MRI might be appropriate at some date in the future. In these circumstances, the evidence establishes that 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. (Order Affirming the Recommended Decision of the Magistrate Judge at 14 15, ECF No. 541.)

B. The Current Action Plaintiff commenced the current action on December 29, 2017. (ECF No. 1.) In his original complaint, Plaintiff alleged that in April 2017, he developed a 3 to 4 inch long - and that he thereafter experienced various symptoms, including vision problems, headaches, vertigo, facial tingling, hand tingling, shortness of breath, skull pain, and cognitive dysfunction. (Id. ¶¶ 10, 23, 29.) According to Plaintiff, Defendants did not believe ed treatment other than referral to the optometrist. (Id. ¶ 24.) Plaintiff alleged that he submitted several sick call slips beginning in September, 2016, condition. (Id. ¶ 29.) According to Plaintiff, he developed a second skull anomaly in

December 2017, which anomaly is apparent upon palpation of his skull. (Id. ¶ 37.) Based on

lab and a low level of Vitamin D, Plaintiff opines that his symptoms demonstrate a likely metabolic bone disease. (Id. ¶¶ 36, 42, 43.) On June 11, 2018, Plaintiff filed the pending Motion for Leave to File an Amended Complaint and Supplemental Complaint. (ECF No. 62.) Plaintiff asserts that after filing his complaint suffered Id.) Specifically, Plaintiff alleged that between January 2017, and June 2018, he experienced unexplained hypertension that is unresponsive to first-round treatment measures Defendants had prescribed Propranolol in January 2017. (Id. ¶ 57.) Plaintiff alleged that Defendants have not properly followed up on or monitored his condition. (Id. ¶ 58.) Plaintiff alleged onset of black spots in his peripheral vision since March 2018, and chest pain May 2018, with pain radiating into his left arm. (Id. ¶¶ 59 60.)

Discussion A.

Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a in time constraints. When a party seeks to consent or leave of court is required in order to amend the complaint. Fed. R. Civ. P. 15(a)(2).

Id.; see also Foman v. Davis, reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, futility of amendment, etc. the leave sought should, Defendants argue the proposed amendment would be futile because the asserted claim is barred by the doctrine of res judicata. susceptible to dismissal for the reasons argued by Defendants in their motion to dismiss, the

motion to amend is granted amended complaint. 2

(ECF No. 62-1.) B.

Defendants primarily argue that Pl judicata. (Motion to Dismiss at 4 13.) Alternatively, Defendants argue that Plaintiff has not

alleged a plausible claim of deliberate indifference because the alleged claim reflects a mere disagreement about the proper course of treatment. (Id. at 14 18.)

prior disposition of a federal claim on a newly brought federal claim, are a matter of federal

AVX Corp. v. Cabot Corp., 424 F.3d 28, 30 (1st Cir. 2005). law bars a plaintiff from litigating claims in a subsequent action that could have been, but were

Silva v. City of New Bedford, 660 F.3d 76, 78 (1st Cir. 2011). 3

2 Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008). 3

Traditional merger and bar doctrine prevents a party from asserting a claim previously decided on the merits by a final judgment in another case between the same parties (or their privies): the re- See Restatement (Second) of Judgments § 18 & cmt. a (1982) (merger); id. § 19 (bar). AVX Corp. v. Cabot Corp., 424 F.3d 28, 30 (1st Cir. 2005).

[claim preclusion] defense are (1) a final judgment on the merits in an earlier proceeding, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16 (1st Cir. 2003).

The Court clearly based its judgment in the prior action on its assessment of the merits. In addition, the parties in the two actions are sufficiently identical for res judicata purposes. The defendants in the prior action, and Defendants herein, are Correct Care Solutions and some of its employees who provide medical care to inmates at the prison. Although Plaintiff included in the current action a new defendant, i.e., Nurse Practitioner Cindy McDonough, under the circumstances, the addition of a new defendant does not preclude application of res judicata. Airframe Sys., Inc. v. Raytheon Co who

(quoting Negrón Fuentes v. UPS Supply Chain Sol., 532 F.3d 1, 10 (1st Cir. 2008) (collecting


The remaining issue is whether the current action presents the identical, action as the claim Plaintiff asserted in the prior action. Taylor

v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). even if t Id. (quoting New Hampshire v. Maine, 532 U.S. at 748 49).

In general, claim preclusion does not preclude litigation of events that occur after the date on which the plaintiff filed the prior complaint, assuming the prior claim was not amended to incorporate post-filing events. Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000). However, claim preclusion prevents litigation in a lat same nucleus of operative facts and should have been brought in the prior action. Aristud González v. Government Development Bank for Puerto Rico (GDB), 501 F.3d 24, 27 (1st Cir.

2007) (citation and internal quotation marks omitted). Where a series of related transactions

facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the p expectations. Massachusetts Sch. of Law at Andover, n, 142 F.3d 26, 38 (1st Cir.1998). The First Circuit explained:

In most situations involving federal claims, it is now enough to trigger claim preclusion that the plaint s second claim grows out of the same transaction or set of related transactions as the previously decided claim. The implicit rationale is that for the sake of efficiency, all such claims should be brought together, if this is possible. In short, the res judicata doctrine functions not only in its traditional role of preventing repeat claims, but has become a compulsory joinder requirement for closely related claims. AVX Corp., 424 F.3d at 31 (citations omitted). In the prior action, Plaintiff initially asserted a deliberate indifference claim based on the treatment of a hip condition. As the case progressed, Plaintiff supplemented his allegations to assert that his hip condition was the product of an underlying disease process that produced a constellation of symptoms, many of which allegedly arose after the date on which Plaintiff

filed the complaint in the prior action. 4

Plaintiff sought relief related to his additional symptoms. For instance, in a motion for injunctive relief in the prior action, Plaintiff alleged

disorder and possible malignancy. Several disinterested prison and medical staff are able to ific symptoms of viable masses on the base of his skull, concerning fracture-like anomaly, and various instances of lymphadenopathy in axillary s declaration in support of the motion for injunctive relief, Plaintiff describ 4 inch fracture-like anomaly listed a number of symptoms he evidently believed were related. (ECF No. 370-1.) In both the recommended decision and the order on the motion for summary judgment in the prior action, the Court acknowledged suffered from serious medical conditions Defendants had not properly diagnosed or treated.

Given that Plaintiff seeks to recover in the current failure to treat one of the underlying conditions (i.e., an alleged anomaly in his skull), on which he presented evidence and for which he sought relief in his filings in the prior action, the claims asserted in the current action can fairly be characterized as the same claims he asserted in the prior action, or claims that should have been asserted in the prior action. See, e.g., Williams v. Kurk ; Wilson v. Wexford Health Sources, Inc., No. 8:15-cv-1448, 2016 WL 2347840, at *5 (D. Md. May 3, 2016). In other words, the claims are

4 See e.g., filings in the prior action at ECF Nos. 447/481 (Motion re. New Evidence x-ray radiology report), 472 lab results, medical publication re. Cushing Syndrome), 489 fracture- .)

as contemplated by the First Circuit in In re Colonial Mortg. Bankers Corp.

All of the required elements of res judicata, therefore, are satisfied. 5

Accordingly, the claims asserted by Plaintiff in his amended complaint are barred by the doctrine of res judicata. 6

Conclusion Based on the foregoing analysis, In addition (ECF No. 40), and dismiss P . No. 67/71) is dismissed as moot.

NOTICE Any objection to this Recommended Decision and Order shall be filed in accordance with Federal Rule of Civil Procedure 72.

With respect to the order on non-dispositive matters (i.e., the denial of the Objection to Removal), a party may serve and file objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(a). With respect to the recommendations made herein, a party may file findings or recommended decisions entered pursuant to 28 U.S.C. Section 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum within fourteen (14) days of being served with a copy. A responsive memorandum shall be filed within fourteen (14) days after the filing of the objection. Fed. R. Civ. P. 72(b)(2). Failure to file a timely

5 Plaintiff commenced the current action before the Court entered its judgment in the prior action. To the amended complaint concerns matters that post-date the judgment, Plaintiff cannot proceed in an action he filed before he exhausted available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 105, 126 S. Ct. 2378, 2394, 165 L. Ed. 2d 368 (2006); 42 U.S.C. § 1997e(a). 6 a plausible claim for deliberate indifference.

objection shall constitute a waiver of the right to de novo review by the district

/s/ John C. Nivison U.S. Magistrate Judge Dated this 3 rd

day of October, 2018.

Back to top