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 ACCEPTING THE RECOMMENDED DECISION OF THE
MAGISTRATE JUDGE
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 violated his Fourteenth
Amendment Equal Protection rights based on sexual orientation and his Fourteenth
Amendment Due Process rights, and that they 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). 	In his
Amended Complaint, Gladu claims that the Maine State Prison (“MSP”) hired new
Media Review Officers who have intentionally interfered with his receipt of allegedly
policy-compliant publications featuring male nudity and have been hostile toward
him due to his sexual orientation. 	He alleges that MSP staff withheld delivery of
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magazines 	and 	books 	that 	he 	had 	ordered 	and 	subsequently 	deemed 	them
contraband, even though previous MSP staff had approved the same materials.
Specifically, he claims that in mid-March 2022, eight books—all of which allegedly
contained male nudity—were confiscated, and on March 31, 2022, prison staff
confiscated an additional seven books featuring male nudity. 	Gladu alleges that
these books had been in his possession in compliance with MDOC policy for over a
year and a half. Gladu states that MSP staff gave him three different justifications
for confiscating the publications, leading him to believe that (1) they were confiscated
with an improper objective, (2) they were not confiscated pursuant to an official prison
regulation, and (3) they were confiscated based on his sexual orientation and in
retaliation for the grievances he has filed.
Gladu filed a Motion for Temporary Restraining Order and Preliminary
Injunction on July 7, 2022, seeking the return of the seven books that he claims had
been in his possession for one and half years (ECF No. 13). I denied this motion (ECF
No. 14) on substantive and procedural grounds, and Gladu sought reconsideration
(ECF No. 16). On reconsideration, I concluded that Gladu had not made a procedural
error, but I again denied the motion for a temporary restraining order on the merits
(ECF No. 30).
United States Magistrate Judge John C. Nivison filed his Recommended
Decision on the Motion for Preliminary Injunction (ECF No. 34) with the Court on
September 9, 2022, pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2022) and Fed. R.
Civ. P. 72(b), recommending that the Court deny the motion. 	Judge Nivison took
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judicial notice of the summary judgment record in Gladu v. Waltz, 1:18-cv-00275-
GZS, 2020 WL 6385618 (D. Me. Oct. 30, 2020), a similar case where Gladu challenged
the confiscation of various allegedly pornographic publications that violated prison
policy. Judge Nivison concluded that Gladu “has failed to present a factual record or
identified any legal authority to suggest that the impediments to his recovery in
Waltz are not present here.” ECF No. 34 at 4. Judge Nivison also noted that Gladu
has not shown that he would suffer irreparable harm and that, “because the pertinent
prison policy implicates legitimate safety concerns,” he chose to exercise judicial
restraint. Id. at 5 (citing to Gladu v. Waltz, 1:18-cv-00275-GZS, 2020 WL 6385618,
at *5 (D. Me. Oct. 30, 2020)).
Judge Nivison provided notice that a party’s failure to object would waive the
right to de novo review and appeal. On October 11, 2022, Gladu filed an Objection to
the Recommended Order and Request for De Novo Review (ECF No. 40), objecting to
Judge Nivison’s judicial notice of Waltz as the basis for his decision. As Gladu noted,
“[i]n Waltz, [he] challenged the censorship of several books with adult content which
were alleged to have been censored . . . due to certain materials therein that
defendants alleged to be non-allowable under departmental policy (eg; penetration,
bondage, etc).” 	ECF No. 40 at 6. 	In Waltz, the Defendants claimed that they
prohibited 	Gladu 	from 	possessing 	certain 	publications 	because 	they 	expressly
violated MDOC policy with “images of sexual violence and penetration and portrayed
nude individuals under the age of eighteen,” as well as “material that depicts
bondage.” No. 1:18-cv-00275-GZS, ECF No. 197 at 8. One publication was prohibited
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because it was oversized. 	Waltz, 1:18-cv-00275-GZS, 2020 WL 6385618, at *3. 	The
Defendants further justified the confiscation because Gladu is serving a sentence for
“unlawful sexual contact of a child and possession of sexually-explicit materials.”
Waltz, 1:18-cv-00275-GZS, ECF No. 197 at 1.
In the motion before the Court here, the seven books at issue allegedly feature
non-pornographic or otherwise allowable content featuring adult male nudes. Gladu
claims that he ordered these seven books after the Waltz decision was issued and that
he received the publications with receipts for allowable property, presumably because
they were reviewed and deemed in compliance with prison policy. He argues that the
confiscated materials are distinctly different from the sexually explicit materials in
Waltz, and that “certain prison staff are discriminating against [him] based on his
sexual orientation and attempting to claim that Gladu is suddenly banned from
possessing any sexually explicit material whatsoever.” ECF No. 40 at 3.
I have reviewed and considered the Recommended Decision, together with the
entire record, and have made a de novo determination of all matters adjudicated by
the Magistrate Judge. I concur with the ultimate recommendation of the Magistrate
Judge, however, my decision to deny the Motion for Preliminary Injunction rests on
Gladu’s failure to show that he is likely to suffer irreparable harm in the absence of
a preliminary injunction.
In seeking a preliminary injunction for the return of his books, Gladu contends
that the books were not confiscated pursuant to a departmental policy because the
“Defendants changed their rationale at least 3 times for why [his] books and
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magazines were censored and confiscated.” 	ECF No. 13-1 at 2. 	For example, staff
allegedly 	told 	him 	that 	there 	was 	“a 	mysterious 	‘porn 	restriction’ 	placed 	on
[him].” ECF No. 13-9 at 2. He then concludes that “failure to abide by established
procedure and standards can evince an improper objective,” and “as a matter of law,
the 	continuing 	deprivation 	of 	constitutional 	rights 	constitutes 	irreparable
harm.” 	ECF No. 13-9 at 2 (quoting Shakur v. Selsky, 391 F.3d 106, 116 (2d Cir.
2004)). He also claims that he “is threatened with irreparable harm because of the
nature of the discrimination on the basis of sexual orientation.” 	ECF No. 13-9 at
3. As an alternative to the return of his books, Gladu requests that the Court order
the Defendants to preserve them as evidence.
“‘A preliminary injunction usually will be denied if it appears that the
applicant has an adequate alternate remedy in the form of money damages or other
relief.’” 	Bruns v. Mayhew, 931 F. Supp. 2d 260, 274 (D. Me. 2013), aff'd and
remanded, 750 F.3d 61 (1st Cir. 2014) (quoting 11A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 1995)).
Gladu has not shown that the immediate return of his books is the only adequate
legal remedy available to him, and thus has not demonstrated that he is likely to
suffer irreparable harm in the absence of a preliminary injunction ordering this relief.
It is therefore ORDERED that the Recommended Decision (ECF No. 34) of
the Magistrate Judge is ACCEPTED and Gladu’s Objection to the Recommended
Decision (ECF No. 40) is DISMISSED. It is further ORDERED that Gladu’s Motion
for Preliminary Injunction (ECF No. 13) is DENIED.
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SO ORDERED.
Dated this 11th day of January, 2023
/s/ Jon D. Levy
CHIEF U.S. DISTRICT JUDGE
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