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 AFFIRMING DENIAL OF MOTION TO AMEND
Plaintiff Nicholas A. Gladu, proceeding pro se, filed this action on May 9, 2022,
against Defendants Matthew Magnusson, James Hancox, Randall Liberty, and
various 	other 	John 	Does 	employed 	by 	the 	Maine 	Department 	of 	Corrections
(“MDOC”) (ECF No. 1). 	Gladu alleges that the Defendants have violated his
Fourteenth Amendment Equal Protection rights based on sexual orientation and his
Fourteenth Amendment Due Process rights, and that they have violated his rights
under the Maine Civil Rights Act, 5 M.R.S.A. § 4682 (West 2022). He also claims that
the 	Defendants 	engaged 	in 	unlawful 	censorship 	under 	the 	First 	Amendment,
unlawful taking of property under the Fifth Amendment, conspiracy, and retaliation.
Gladu filed an Amended Complaint on May 27, 2022 (ECF No. 11).
On August 1, 2022, Gladu filed a Motion to Amend and attached a proposed
amended complaint (ECF No. 18). He seeks to add Assistant Attorney General Jillian
O’Brien as a defendant based on information he allegedly discovered on June 23,
2022, arguing that she “directly participated in the unjustified censorship decision
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and improper seizure of personal property.” ECF No. 18 at 1. He also states that his
proposed amendments cure previous deficiencies in the operative complaint, which
he does not enumerate.
United States Magistrate Judge John C. Nivison issued an Order Denying
Gladu’s Motion to Amend (ECF No. 45), finding that Gladu had failed to state a claim
against AG O’Brien because (1) she is not an employee of MDOC, and therefore did
not have the authority to seize property or deprive Gladu of his books and magazines,
and (2) even if she had provided legal advice to MDOC staff (as Gladu alleges), “that
fact alone is generally insufficient to show the personal involvement that is necessary
to establish liability under section 1983.” ECF No. 45 at 2 (citing McEvoy v. Spencer,
49 F.Supp.2d 224, 227 (S.D.N.Y. 1999)). 	Gladu objects to the Order, arguing that
Judge Nivison had (1) improperly found that AG O’Brien could not be sued and (2)
denied the motion solely with regard to the allegations about AG O’Brien, without
reference to the other proposed amendments (ECF No. 46). For the reasons set forth
below, I affirm Judge Nivison’s Order.
Upon timely objection to a magistrate judge’s order on a non-dispositive
motion, this court may set aside the decision only if it is “clearly erroneous or contrary
to law.” 	Fed. R. Civ. P 71(a). 	“A finding is clearly erroneous ‘only when, after
reviewing the entire record, we are left with the definite and firm conviction that a
mistake has been committed.’” 	Strahan v. Coxe, 127 F.3d 155, 172 (1st Cir. 1997)
(quoting Clement v. United States, 980 F.2d 48, 53 (1st Cir.1992)). “[A] decision made
in the absence of a basis is an abuse of discretion.” 	Howland v. Kilquist, 833 F.2d
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639, 646 (7th Cir.1987). However, remand is not necessary if it “would be an ‘exercise
in futility.’” Carmichael v. Warden, Maine State Prison, 346 F. Supp. 2d 207, 209 (D.
Me. 2004) (quoting Howland, 833 F.2d at 646)).
Gladu is correct that Judge Nivison’s Order only concludes that “Plaintiff has
not 	asserted a 	plausible claim against Ms. 	O’Brien, 	and, 	therefore, 	Plaintiff’s
requested amendment to assert a claim against Ms. O’Brien would be futile.” ECF
No. 45 at 3. It is unclear whether Judge Nivison’s decision to deny the motion rested
solely on the futility of claims against AG O’Brien, or whether he also considered the
merits of Gladu’s other proposed amendments. Although Judge Nivison has not yet
completed the screening of the operative complaint pursuant to 28 U.S.C.A. § 1915
and 1915A (West 2022), in his Recommended Decision on Gladu’s Motion for
Preliminary Injunction (ECF No. 34), Judge Nivison considered both the Amended
Complaint and the merits of Gladu’s proposed amendments in the Motion to Amend,
and concluded that Gladu had failed to show a likelihood of success on the merits.
Thus, I find that it would be an exercise in futility to remand this Order for Judge
Nivison’s further consideration.
It is therefore ORDERED that Judge Nivison’s Order Denying the Motion to
Amend (ECF No. 45) is AFFIRMED and Gladu’s Objection to the Order (ECF No.
46) is OVERRULED.
SO ORDERED.
Dated this 20th day of January, 2023.
/s/ Jon D. Levy
CHIEF U.S. DISTRICT JUDGE
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