GLADU v. MAGNUSSON et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU, )
)
Plaintiff )
)
v. ) 1:22-cv-00134-JDL
)
MATTHEW MAGNUSSON, et. al., )
)
Defendants )
RECOMMENDED DECISION ON DEFENDANTS’ MOTION TO DISMISS
Plaintiff, an inmate at the Maine State Prison (“MSP”), alleges Defendants1
unlawfully censored publications and deprived him of other property in violation of certain
constitutional protections. Plaintiff alleges First Amendment, due process, equal
protection, conspiracy, and Maine state constitutional claims. (Amended Complaint, ECF
No. 11.)
Defendants moved to dismiss Plaintiff’s multi-count amended complaint citing
claim preclusion as to some of the counts, and the lack of sufficient facts to support other
claims Plaintiff attempts to assert. (Motion to Dismiss, ECF No. 54.) Following a review
of the record and after consideration of the parties’ argument, I recommend the Court grant
Defendants’ motion.
1 Defendants consist of officials of the Maine Department of Corrections.
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BACKGROUND
Plaintiff is in the custody of Maine Department of Corrections (MDOC), serving a
sentence for unlawful sexual contact with a child and possession of sexually explicit
materials.2 Plaintiff alleges the Defendants have withheld or removed several sexually
explicit publications from him. (Amended Complaint ¶¶ 10, 15-16, 17, 23, 27, 30-31, 33,
40, 42, ECF No. 11.) Plaintiff objected to the denial of his access to the publications and
showed a corrections officer similar material that Defendants had permitted Plaintiff to
possess in his cell. (Id. ¶ 52.) Plaintiff asserts that when he was transferred to the
segregation unit at the prison, officers confiscated publications previously in Plaintiff’s
possession. (Id. ¶ 55.) Plaintiff maintains that no other prisoner at the Maine State Prison
is prohibited from possessing the material. (Id. ¶ 53.)
In a prior action, Gladu v. Waltz, No. 1:18-cv-00275-GZS (the prior action),
Plaintiff alleged that the defendants, who were officials at the Maine State Prison, violated
his First Amendment rights when they denied him access to certain sexually explicit
publications, violated due process when they denied his access to the publications, and
retaliated against him by withholding his property. (No. 1:18-cv-275, ECF No. 1.) The
defendants subsequently moved for summary judgment. The defendants argued that the
prohibition did not constitute a constitutional violation because the Maine Department of
Corrections’ (MDOC) policy reasonably prohibits explicit publications and any material
2 I take judicial notice of the summary judgment record and the Court’s entry of summary judgment against
Plaintiff in Gladu v. Waltz, No. 1:18-cv-00275-GZS.
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that is substantially detrimental to an inmate’s rehabilitation. (Defendants’ Motion for
Summary Judgment, ECF No. 197.)
After a review of the summary judgment record, I recommended the Court grant the
defendants’ motion for summary judgment because the record established (1) that the
publications included content that is prohibited by MDOC policy, (2) Plaintiff had an
adequate remedy for the deprivation of his personal property, and (3) the record lacked
support for Plaintiff’s claim that the defendants retaliated against him when they denied
him access to the publications. (Recommended Decision at 10-13, ECF No. 286.) On
December 14, 2020, the Court adopted the Recommended Decision and entered judgment
against Plaintiff. (Amended Order, ECF No. 297; Judgment, ECF No. 298.) The First
Circuit affirmed. (Gladu v. Waltz, No. 21-1010, 2022 WL 20437774 at *1 (Oct. 24, 2022)).
Plaintiff commenced this action on May 9, 2022. Plaintiff asserts a First
Amendment claim (Count I), an Equal Protection claim (Count II), a Due Process claim
(Count III), a Conspiracy claim (Count IV), a Takings claim (Count V), a state Civil Rights
claim (Count VI), and a Retaliation claim (Count VII). Defendants argue the Plaintiff is
precluded from bringing these claims again because he asserted the same or similar claims
in the prior action. Defendants also contend Plaintiff’s allegations do not support some of
the alleged claims.
DISCUSSION
A. Claim Preclusion – Counts I-III (First Amendment, Equal Protection, Due
Process)
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Defendants argue that several claims are barred by the doctrine of res judicata. “The
rules for res judicata, where a federal court is considering the effect of its own prior
disposition of a federal claim on a newly brought federal claim, are a matter of federal
law.” AVX Corp. v. Cabot Corp., 424 F.3d 28, 30 (1st Cir. 2005). “Federal claim
preclusion law bars a plaintiff from litigating claims in a subsequent action that could have
been, but were not, litigated in an earlier suit.” Silva v. City of New Bedford, 660 F.3d 76,
78 (1st Cir. 2011). “[T]he elements of a [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 (3) sufficient identicality between the
parties in the two actions.” In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16 (1st Cir.
2003).
The judgment entered on the motion for summary judgment in the prior action
constitutes a final judgment on the merits. In addition, the parties in the two actions are
sufficiently related for purposes of claim preclusion. In the prior action, the defendants
were MDOC officials who were implementing the same MDOC policy that is implicated
in this case. Here, the defendants are MDOC officials who are alleged to be responsible
for the application of the same policy. “[C]laim preclusion applies if the new defendant is
‘closely related to a defendant from the original action—who was not named in the
previous law suit,’ not merely when the two defendants are in privity.” Airframe Sys., Inc.
v. Raytheon Co., 601 F.3d 9, 17 (1st Cir. 2010) (quoting Negrón–Fuentes v. UPS Supply
Chain Sol., 532 F.3d 1, 10 (1st Cir. 2008) (collecting cases)).
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Lastly, Counts I – III in this action present the same or “sufficiently identical,”
causes of action as some of the claims Plaintiff asserted in the prior action. In the prior
action, as in this case, Plaintiff asserted First Amendment, Equal Protection, and Due
Process claims based on the MDOC policy. He attempts to distinguish the prior case in
part because this case involves different publications and in part because he was originally
permitted to possess at least some of the materials.
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 later action of matters that
“grew out of the 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 are in question, a court considering a claim preclusion defense must
evaluate “whether the 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 parties’
expectations.” Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass’n, 142
F.3d 26, 38 (1st Cir.1998).
Plaintiff contends the holding in the prior action is narrow, only affirming the policy
as it applied to the publications and circumstances of that case. Defendants argue that the
Court in the prior action affirmed MDOC’s interest in prohibiting Plaintiff access to adult
material.
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The facts in both cases are related in origin and motivation. In both cases, Plaintiff
challenges the authority of the MDOC to restrict his access to adult material. In the prior
action, the Court determined that the MDOC policy did not violate Plaintiff’s constitutional
rights because the policy restricts an inmate’s access to material when the prohibition “is
in accord with the policy and is reasonably related to the government’s legitimate
penological interests.” Gladu v. Waltz, No. 1:18-cv-00275, 2020 WL 6385618 at *5 (D.
Me. Oct. 30, 2020) (citing Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998)). In this case,
Plaintiff challenges the application of the same policy but does not allege any facts that
would distinguish the penological interests generated by Plaintiff’s potential access to the
publications in this case from the interests in the prior case. The mere fact that Plaintiff’s
claim involves different publications is insufficient for Plaintiff to avoid the consequence
of claim preclusion on the same claims he asserted in the prior action (i.e., First
Amendment, Equal Protection, and Due Process). Cf. Vanaman v Marlow, No. CV 16-
00781-TUC-JCH, 2021 WL 9080142, at *10 (D. Ariz. Mar. 26, 2021), aff’d, No. 21-15645,
2020 WL 2751537 (9th Cir. 2022).
B. Issue Preclusion – Counts V, VII (Takings)
“Issue preclusion [] bars ‘successive litigation of an issue of fact or law actually
litigated and resolved in a valid court determination essential to the prior judgment, even
if the issue recurs in the context of a different claim. Taylor v. Sturgell, 553 U.S. 880, 892
(2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)).
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Plaintiff has alleged no facts that would preclude application of the Court’s decision
in the prior action that Plaintiff did not have a cause of action based on the confiscation of
adult materials he possessed. Gladu v. Waltz, 2020 WL 6385618 at *7.
C. Failure to State a Claim – Counts IV, VII (Conspiracy, Retaliation)
In reviewing a motion to dismiss under Rule 12(b)(6), a court “must evaluate
whether the complaint adequately pleads facts that ‘state a claim to relief that is plausible
on its face.’” Guilfoile v. Shields, 913 F.3d 178, 186 (1st Cir. 2019) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In doing so, a court must “assume the truth
of all well-pleaded facts and give the plaintiff the benefit of all reasonable inferences
therefrom,” but need not “draw unreasonable inferences or credit bald assertions [or] empty
conclusions.” Id. (alteration in original) (internal quotation marks omitted); see Bruns v.
Mayhew, 750 F.3d 61, 71 (1st Cir. 2014) (“[A] court is ‘not bound to accept as true a legal
conclusion couched as a factual allegation.’” (quoting Twombly, 550 U.S. at 555)). Federal
Rule of Civil Procedure 12(b)(6) “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To evaluate the sufficiency of the complaint, therefore, a court must “first, ‘isolate
and ignore statements in the complaint that simply offer legal labels and conclusions or
merely rehash cause-of-action elements,’ then ‘take the complaint’s well-pled (i.e., non-
conclusory, non-speculative) facts as true, drawing all reasonable inferences in the
pleader’s favor, and see if they plausibly narrate a claim for relief.’” Zell v. Ricci, 957 F.3d
1, 7 (1st Cir. 2020) (alteration omitted) (quoting Zenon v. Guzman, 924 F.3d 611, 615-16
(1st Cir. 2019)).
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“A self-represented plaintiff is not exempt from this framework, but the court must
construe his complaint ‘liberally’ and hold it ‘to less stringent standards than formal
pleadings drafted by lawyers.’” Waterman v. White Interior Sols., No. 2:19-cv-00032-JDL,
2019 WL 5764661 at *2 (D. Me. Nov. 5, 2019) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)).
Title 42 U.S.C. §§ 1985(3) and 1986 prohibit conspiracies to deprive one or more
persons of the equal protection of the laws. The statutes also authorize civil rights actions
against the conspirators and persons with knowledge of and power to prevent or aid in
preventing such a conspiracy who fail to act. “In order to demonstrate the existence of a
conspiracy under § 1985, a plaintiff must prove that the conspiracy was motivated by some
racial, or perhaps otherwise class-based, invidiously discriminatory animus,” and “that the
conspiracy was aimed at interfering with protected rights.” Maymi v. Puerto Rico Ports
Auth., 515 F.3d 20, 30 (1st Cir. 2008) (internal quotation marks omitted). Plaintiff has
alleged no facts that would support a conspiracy claim against Defendants.
Plaintiff also alleges Defendants retaliated against him for his grievance activity.
Plaintiff maintains Defendants prohibited his access to adult materials because he filed a
formal discrimination complaint with the MDOC commissioner.
Prison officials can violate the First Amendment if they retaliate against an inmate
based on the inmate’s participation in protected activity. To state a claim of First
Amendment retaliation, an inmate must allege (1) that the inmate engaged in conduct
protected by the First Amendment; (2) that the defendant took adverse action against the
inmate because of the protected conduct; and (3) that the adverse action was more than de
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minimis, i.e., was sufficient to deter an inmate of ordinary firmness from exercising his or
her first amendment rights. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011); Davis v.
Goord, 320 F.3d 346, 352 (2d Cir. 2003); Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th
Cir. 1999). “Because prisoner retaliation claims are ‘easily fabricated [ ] and ... pose a
substantial risk of unwarranted judicial intrusion into matters of general prison
administration,’ courts must insist that such claims are bound up in facts, not in the
gossamer strands of speculation and surmise.” Hannon, 645 F.3d at 48 (quoting Bennett
v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)).
To satisfy the causation element, Plaintiff must show that the protected activity (i.e.,
the filing of a complaint/grievance) “‘was a substantial or motivating factor for the adverse
[action].’” Staples v. Gerry, 923 F.3d 7, 15 (1st Cir. 2019) (quoting Padilla-Garcia v.
Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000)). Plaintiff alleges that when the media review
officer denied Plaintiff access to certain sexually explicit magazines, he filed a
complaint/grievance alleging the decision was based on Plaintiff’s sexual orientation.
(Amended Complaint ¶ 29.) Plaintiff also alleges that before he made the complaint, he
was permitted to possess the sexually explicit material he was later denied. (Id. ¶ 60.)
Plaintiff thus asserts that a deprivation of sexually explicit materials prompted the
complaint and that after the complaint, he was deprived of similar material. Because
Plaintiff has alleged a pre-complaint/grievance deprivation of sexually explicit material as
the basis for his protected activity, he cannot plausibly allege that his complaint/grievance
“was a substantial or motivating factor” in Defendants’ decision to deny him access to the
sexually explicit material. Staples, 923 F.3d at 15. Indeed, the gravamen of Plaintiff’s
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complaint is that on multiple occasions, before and after the protected activity, Defendants
denied him access to sexually explicit material. Plaintiff has not alleged a plausible
retaliation claim.
D. Supplemental Jurisdiction – Count VI
Plaintiff has also asserted a claim under the Maine Constitution. Defendants argue
that because Plaintiff has not alleged an actionable federal claim, the Court should not
exercise supplemental jurisdiction3 and should dismiss the state law claim.
“The district court may decline to exercise supplemental jurisdiction over a claim .
. . . if . . . the district court has dismissed all claims over which it is has original
jurisdiction.” 28 U.S.C. § 1367(c)(3) see Rodríguez v. Doral Mort. Corp., 57 F.3d 1168,
1177 (1st Cir. 1995) (“As a general principle, the unfavorable disposition of a plaintiff’s
federal claims at the early stages of a suit … will trigger the dismissal without prejudice of
any supplemental state law claims.”). Because the case is in the early stages, I discern no
reason for the Court to exercise its supplemental jurisdiction over Plaintiff’s state law
claim.
3 Title 28 U.S.C. § 1367, which governs the Court’s exercise of its supplemental jurisdiction, provides:
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution. Such supplemental jurisdiction shall include claims that involve
the joinder or intervention of additional parties.
28 U.S.C. § 1367(a).
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CONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendants’ motion
to dismiss.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 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 thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 31st day of August, 2023.
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