GLADU v. MAGNUSSON et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU, 	)
)
Plaintiff, 	)
)
v. 	) 1:22-cv-00134-JDL
)
MATTHEW MAGNUSSON, et al., 	)
)
Defendants. 	)
ORDER ON PLAINTIFF GLADU’S MOTION FOR RECONSIDERATION
Plaintiff Nicholas A. Gladu seeks reconsideration (ECF No. 16) of the denial of
his request for a temporary restraining order (ECF No. 13). 	Gladu had sought to
enjoin the Defendants, several prison officials and the Commissioner of the Maine
Department of Corrections, “from prohibiting Plaintiff from possessing his books and
magazines 	which 	were 	confiscated 	on 	03/31/2022 	that 	had 	been 	in 	Plaintiff’s
possession already for up to one and a half years” and which contained male nudity.
ECF No. 13 at 1.
Gladu first argues that my conclusion that he had not complied with Federal
Rule of Civil Procedure 65(b)(1)(B) was in error. 	Upon careful reconsideration, I
conclude that Gladu is correct. Although Gladu did not certify in writing why notice
to the Defendants should not be required as permitted by Rule 65(b)(1)(B), he instead
certified (ECF No. 13-11) that he had served the Defendants, as is also permitted by
the Rule. Therefore, he has satisfied the requirements of Rule 65(b)(1)(B).
Gladu also seeks reconsideration of my conclusion that he had not shown that,
absent the requested relief, immediate and irreparable harm would occur before the
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Defendants could be heard in opposition, but I disagree. 	See Fed. R. Civ. P.
65(b)(1)(A). “[I]rreparable injury is presumed upon a determination that the movants
are likely to prevail on their First Amendment claim.” Sindicato Puertorriqueño de
Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 11 (1st Cir. 2012). 	But see
Vaquería Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 484-85 (1st Cir. 2009) (“While
certain constitutional violations are more likely to bring about irreparable harm, we
have generally reserved this status for ‘infringements of free speech, association,
privacy 	or other rights 	as 	to 	which 	temporary 	deprivation is 	viewed of 	such
qualitative importance as to be irremediable by any subsequent relief.’ So, it cannot
be said that violations of plaintiffs’ rights to due process and equal protection
automatically result in irreparable harm.” (citation omitted) (quoting Pub. Serv. Co.
of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987))).
Here, the record is too undeveloped to determine whether Gladu is likely to
succeed on the merits and thus faces a threat of irreparable injury. See Respect Me.
PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010) (“‘The fact that appellants are asserting
First Amendment rights does not automatically require a finding of irreparable
injury.’ Whether there is any such harm is the issue that will ultimately be addressed
on the merits of the case. . . . 	[T]he issues raised by the challenges . . . will require
careful analysis, on a fully developed record.” (alteration omitted) (citation omitted)
(quoting Pub. Serv. Co. of N.H., 835 F.2d at 382)); Me. Republican Party v. Dunlap,
324 F. Supp. 3d 202, 213 n.7 (D. Me. 2018) (concluding that the plaintiff “is unlikely
to succeed on the merits of [a First Amendment] claim” and thus that claim “does not
automatically entitle the [plaintiff] to a finding of irreparable harm”); B & B Coastal
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Enters. v. Demers, 276 F. Supp. 2d 155, 167 (D. Me. 2003) (“Given that Plaintiff has
not shown a likelihood of success on this claim, it cannot show the irreparable injury
that flows from a First Amendment violation.”). Additionally, the uncertainty about
Gladu’s likelihood of success on the merits is an independent reason to deny his
request, beyond how that uncertainty interacts with his need to show irreparable
harm. 	See Monga v. Nat’l Endowment for the Arts, 323 F. Supp. 3d 75, 82 (D. Me.
2018) (describing “likelihood of success on the merits” as the “sine qua non” of the
temporary-restraining-order analysis (quoting New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002))).
At this stage, there has not yet been any explanation from the Defendants as
to why Gladu’s materials were confiscated, and there are circumstances in which
prison officials would be entitled to take them. See Josselyn v. Dennehy, 333 F. App’x
581, 583-84 (1st Cir. 2009) (unpublished) (rejecting a challenge to a state regulation
banning inmates’ receipt of sexually explicit publications). More factual development
of Gladu’s allegations is needed before the lawfulness of what he characterizes as the
“mysterious ‘porn restriction’” imposed on him can be determined. 	ECF No. 13-9 at
2. 	Additionally, there is a pending motion (ECF No. 4) to revoke Gladu’s in forma
pauperis status based on the Defendants’ assertion that Gladu has accrued three
strikes under the Prison Litigation Reform Act. 	See 28 U.S.C.A. § 1915(g) (West
2022). Until that motion is resolved, it is uncertain whether this action will proceed
and thus whether Gladu will prevail on the merits of his claims.
For 	the 	foregoing 	reasons, 	it 	is 	ORDERED 	that 	Gladu’s 	Motion 	for
Reconsideration (ECF No. 16) is DENIED.
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SO ORDERED.
Dated: September 1, 2022
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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