GLADU v. MAGNUSSON et al

Filing 237

ORDER accepting in part and rejecting in part 193 Report and Recommended Decision; granting in part and denying in part 125 Motion for Leave to File Third Amended Complaint; denying as moot 134 Motion to Substitute Party. By JUDGE STACEY D. NEUMANN. (mmy)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU,
Plaintiff,
v.
MATTHEW MAGNUSSON, et al.,
Defendants.

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1:22-cv-00134-SDN

ORDER
Plaintiff Nicholas Gladu has sued various employees and administrators at the
Maine State Prison (“MSP”), where Mr. Gladu is incarcerated, for allegedly violating his
rights by preventing him from obtaining magazines and books with images of male
nudity. Mr. Gladu raised similar claims in a prior lawsuit, which the Court rejected on the
merits at summary judgment, when MSP employees disallowed books depicting
“sadomasochism and bondage” and “nude photos of children.” See Gladu v. Waltz, No.
18-CV-00275, 2020 WL 6385618 (D. Me. Oct. 30, 2020), R&R adopted, 2020 WL
7344706 (Dec. 14, 2020), aff’d, No. 21-1010, 2022 WL 20437774 (1st Cir. Oct. 24, 2022).
In this suit, Mr. Gladu makes seven new claims regarding his access to materials
with male nudity. His first three claims invoke the First Amendment, equal protection,
and due process (Counts I–III). He also alleges conspiracy, unconstitutional taking,
violation of the Maine Civil Rights Act, and retaliation (Counts IV–VII).
These new claims are based on alleged events since his prior lawsuit. He named
Matthew Magnusson, James Hancox, and Randall Liberty (“Named Defendants”) in the
operative First Amended Complaint (“FAC”), along with John Does 1–7 (“John Doe
Defendants”). The Named Defendants moved to dismiss on April 25, 2023. The
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Magistrate Judge recommended dismissing all of Mr. Gladu’s claims, but the Court
rejected the recommendation in part and allowed Counts I–III to go forward.
Mr. Gladu then sought leave to file a Third1 Amended Complaint (“TAC”). In the
TAC, Mr. Gladu attempts to revive the dismissed Counts IV–VII and replace three of the
John Doe Defendants with named individuals: Myles Reid, Andrew Stanley, and Joseph
Theriault. ECF No. 125. The Magistrate Judge recommended allowing Mr. Gladu to add
Mr. Reid and Mr. Stanley as defendants and recommended denying Mr. Gladu’s motions
in all other respects. ECF No. 193. Mr. Gladu, Mr. Hancox, and Mr. Liberty objected to
the relevant portions of the Magistrate Judge’s recommendation that go against their
positions, ECF Nos. 194, 196, and those objections now are before the Court.
For the following reasons, I allow Mr. Gladu to amend his complaint to revive the
previously dismissed counts and to add Mr. Reid and Mr. Stanley as defendants.
However, Mr. Gladu may not add Mr. Theriault as a defendant.
FACTUAL HISTORY2
Mr. Gladu is incarcerated at the MSP. He openly identifies as “gay/queer.” ECF
125-1 at 1. According to Mr. Gladu, Maine Department of Corrections (“MDOC”) policy
number 21.2 permits prisoners at MSP to possess printed materials depicting adult
nudity, regardless of the gender depicted. Mr. Gladu also claims MDOC policy requires

1 Earlier in the litigation, Mr. Gladu sought to file a Second Amended Complaint adding the Named

Defendants’ counsel as a defendant, ECF No. 18, which the Magistrate Judge denied, ECF No. 45; ECF No.
49 (adopting R&R).
2 These facts are drawn from the proposed TAC. ECF No. 125-1. Because the Named Defendants oppose the
motion to amend on futility grounds in part, the Court must “assess whether [the] proposed amended
complaint withstands a Rule 12(b)(6) motion” and therefore accepts the TAC’s facts as true, drawing all
reasonable inferences in Mr. Gladu’s favor, for the analysis. Efron v. UBS Fin. Servs. Inc. of P.R., 96 F.4th
430, 437 (1st Cir. 2024).

2

all decisions regarding prisoner access to such materials to be made in an objective
manner, in accordance with the content policy.
Between March 2019 and March 2022, Mr. Gladu purchased approximately ten
books and magazines depicting adult male nudity. Officer Casey Chadwick, the
“Property/Media Review Officer” at the time, screened and approved each item.3 During
the years Mr. Gladu possessed these materials, there were “no issues or incidents of any
kind,” id. at 3, and Mr. Gladu did not share the materials with any fellow inmates.
In February 2022, Mr. Chadwick was promoted and therefore vacated his position
as Media Review Officer. Officer Myles Reid took on the position as a temporary Media
Review Officer. Mr. Gladu claims Mr. Reid did not receive any formal training on MDOC’s
screening policies and relied on his “personal predilections” to screen incoming materials.
Id. at 8.
Around that time, Mr. Gladu began “experiencing issues” receiving his materials.
At first, magazines he ordered were not delivered. For example, on January 6, 2022, Mr.
Chadwick approved a used Playgirl magazine sent to Mr. Gladu. Mr. Chadwick placed the
approved magazine into a bag labeled with Mr. Gladu’s name and MDOC number and left
it in a bin to be delivered to Mr. Gladu’s unit. Unidentified officers who worked on the “BShift” (“B-Shift John Does”) retrieved the bag with Mr. Gladu’s magazine.4 But instead of
delivering it to Mr. Gladu’s unit, the B-Shift John Does opened the bag and disposed of

3 On two occasions, Mr. Chadwick denied Mr. Gladu access to certain non-allowed materials depicting

explicit sexual acts—a decision Mr. Gladu does not object to.
4 Both the FAC and TAC refer to various John Doe Defendants by number, but the numbers are mixed up

between the two complaints. The FAC uses “John Does 1–3” to refer to three media review officers, “John
Does 4–6” to refer to staff members from the B-Shift, and John Doe 7 to refer to an unknown Grievance
Review Officer. The TAC, on the other hand, refers to the media review officers by name and uses “John
Does 1–3” to refer to the B-Shift staff. To avoid confusion, the Court uses the moniker “B-Shift John Does”
when discussing the TAC.

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the magazine. Mr. Gladu claims the B-Shift John Does disposed of Mr. Gladu’s magazine
because they have “anti-gay animus” and find “material with mere male nudity personally
offensive.” Id. at 9.
MSP reimbursed Mr. Gladu for his magazine. The unit manager assigned to Mr.
Gladu’s unit informed Mr. Gladu the B-Shift John Does would be barred from delivering
prisoner property in the future.
On February 24, 2022, after Mr. Reid assumed his post as temporary Media
Review Officer, Mr. Reid rejected delivery of four Playgirl magazines Mr. Gladu had
ordered. Mr. Reid justified the rejection on the grounds that the magazines were not from
an approved vendor and were in used condition. Mr. Gladu believes no such requirement
exists. Indeed, Mr. Gladu claims Mr. Reid approved similar magazines depicting female
nudity from the same commercial distributor, also in used condition, for other prisoners.
According to Mr. Gladu, although MDOC policy requires vendors to be approved
to send books, any publisher or commercial distributor may send magazines. Mr. Gladu’s
Playgirl magazines were sent by a commercial distributor—the same distributor other
prisoners order from without issue.
At one point Mr. Reid stated, “I didn’t sign up for this job to look at magazines with
dick all day.” Id. at 10. Mr. Reid also told other inmates that publications depicting male
nudity “disgusted” him. Id. On March 4, 2022, Mr. Gladu told Mr. Reid that Mr. Gladu
believed Mr. Reid inconsistently applied MDOC policy in rejecting Mr. Gladu’s
magazines. Mr. Reid responded, “Too bad, nothing will be changing,” and ended the
conversation. Id. at 10.

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Soon after, on March 9, 2022, Mr. Gladu filed a formal complaint against Mr. Reid
with MSP Warden Matthew Magnusson for discrimination on the basis of sexual
orientation and discriminatory application of MDOC policy.
While the internal complaint was pending, Mr. Gladu asked his brother to order
him books depicting male nudity from two approved vendors, Amazon and Hamilton
Books. On March 16, 2022, eight books containing adult male nudity that Mr. Gladu
believes MDOC policy permits were delivered to MSP for Mr. Gladu. Id. at 10–11. Two
days later, Mr. Gladu learned from a “Property Contraband Disposition Form” that
MDOC had rejected all eight books. The form did not state any reason for the rejection.
Mr. Gladu claims MDOC policy requires any censorship decision to state the rationale for
the decision. On March 21, 2022, MSP received another book depicting adult male nudity
for Mr. Gladu. Again, Mr. Gladu learned of the book’s rejection from a Property
Contraband Disposition Form that did not state the rationale for the rejection.
On March 28, 2022, Mr. Gladu overheard Officer Andrew Stanley tell another
prisoner that Mr. Stanley had been assigned as the new Media Review Officer, so Mr.
Gladu spoke with him about the recent book orders. Mr. Stanley initially claimed he had
rejected the books because they came from non-approved vendors and because he
believed MDOC policy barred depictions of male nudity.
Mr. Stanley told Mr. Gladu, “Look man, I don’t know what you did to piss them off,
but they defin[i]tely got it out for you right now,” in reference to Mr. Magnusson and other
prison staff’s feelings toward Mr. Gladu. Id. at 11. According to Mr. Stanley, Mr.
Magnusson and James Hancox (Mr. Magnusson’s assistant) instructed Mr. Stanley to tell
Mr. Gladu the books had been rejected for coming from non-approved vendors, but in

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fact Mr. Magnusson and Mr. Hancox had placed Mr. Gladu on a “porn restriction”
because they did not approve of materials depicting male nudity. Id. at 11.
On March 31, 2022, MSP moved Mr. Gladu to the segregation unit for unstated
disciplinary reasons. At that time, Mr. Magnusson and Mr. Hancox directed staff to seize
Mr. Gladu’s books. Mr. Gladu sent multiple written requests to Mr. Magnusson and Mr.
Hancox for information regarding the alleged pornography restriction. He did not receive
a response.
Mr. Gladu believes he is the only prisoner at MSP categorically restricted from
possessing materials with adult nudity of any kind. However, he claims MSP also denies
other gay and bisexual prisoners access to publications depicting adult male nudity, while
allowing non-LGBTQ+ prisoners to possess publications depicting adult female nudity.
Mr. Gladu’s unit manager told Mr. Gladu that the pornography restriction had
been in effect since Mr. Gladu’s prior lawsuit was resolved. Mr. Gladu asserts Mr.
Magnusson and Mr. Hancox are claiming that the Court’s ruling in the prior lawsuit
prohibits Mr. Gladu from possessing any depictions of nudity, even material otherwise
permitted under MDOC policy, which Mr. Gladu posits is an improper over-reading of the
prior ruling. In any event, Mr. Gladu argues Mr. Magnusson and Mr. Hancox’s claimed
reliance on the Court’s prior ruling is a mere pretext for their retaliatory actions.
According to Mr. Gladu, Mr. Magnusson and Mr. Hancox restricted his access to materials
with adult male nudity in retaliation for protected conduct—namely, Mr. Gladu’s filing an
internal discrimination complaint against Mr. Reid, filing internal grievances, and
threatening to sue over MSP employees’ discriminatory and censorious conduct.
On March 18, 2022, and March 27, 2022, Mr. Gladu submitted internal grievances
challenging the decisions of the Media Review Officers to reject his materials. According
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to Mr. Gladu, when a prisoner files such a grievance, MDOC policy requires a Grievance
Review Officer (“GRO”) to review the Media Review Officer’s decision. GRO decisions
may be appealed to the Warden. Mr. Gladu submitted his grievances to Officer Joseph
Theriault, who was the GRO at MSP. Mr. Gladu alleges Mr. Theriault failed to even
process those grievances, which prevented Mr. Gladu from further appealing those
grievances to the warden, Mr. Magnusson.
In June 2022, after Mr. Gladu filed this lawsuit, MSP staff seized erotic fiction
books in his possession. Mr. Gladu claims such books are widespread in prisons and can
even be checked out from unit libraries. According to Mr. Gladu, Defendants have no
legitimate reason to prohibit him from possessing erotic books or magazines with adult
male nudity.
The proposed amended complaint names six Defendants: Mr. Magnusson, Mr.
Hancox, Mr. Theriault, Mr. Reid, and Mr. Stanley, as well as the commissioner of the
MDOC, Randall Liberty. The proposed amended complaint also identifies as Defendants
the three unnamed prison staff from “B-shift” responsible for delivering prisoner property
to Mr. Gladu’s unit.
Mr. Gladu alleges seven distinct claims and seeks relief under 42 U.S.C. §§ 1983
and 1985. Count I alleges Defendants violated Mr. Gladu’s First Amendment rights by
intentionally restricting Mr. Gladu’s access to publications with adult male nudity,
without any legitimate penological interest for doing so. Count II alleges Defendants
denied Mr. Gladu equal protection on the basis of his sexual orientation in violation of the
Fourteenth Amendment. Count III alleges Defendants denied Mr. Gladu due process of
law in violation of the Fourteenth Amendment by seizing his property without notice or
opportunity to be heard. Count IV alleges Defendants conspired to deprive Mr. Gladu of
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his rights by engaging in a concerted effort to fabricate rationales for withholding access
to Mr. Gladu’s materials. Count V alleges Defendants violated the Takings Clause of the
Fifth Amendment by seizing seven of his books and magazines without compensation.
Count VI alleges Defendants violated the Maine Civil Rights Act by discriminating against
him on the basis of sexual orientation.5 Count VII alleges Defendants retaliated against
him for engaging in protected conduct.
PROCEDURAL HISTORY
The procedural history of this case is complex. Mr. Gladu filed his Complaint on
May 4, 2022,6 ECF No. 1, and simultaneously moved to proceed in forma pauperis (IFP),
ECF No. 2. The Magistrate Judge granted the motion to proceed IFP, ECF No. 3, but Mr.
Liberty moved for the Court to revoke Mr. Gladu’s IFP status, ECF No. 4, which the
Magistrate Judge denied, ECF No. 33.
While the dispute over Mr. Gladu’s IFP status was pending, Mr. Gladu amended
his Complaint once as of right (the FAC). ECF No. 11. Mr. Gladu then moved to file a
Second Amended Complaint adding the Named Defendants’ counsel as a defendant, ECF
No. 18, which the Magistrate Judge denied, ECF No. 45; ECF No. 49 (accepting R&R).
After the IFP dispute was resolved, the Magistrate Judge completed the
preliminary review under 28 U.S.C. § 1915A and ordered the FAC be served. See 28 U.S.C.
§ 1915(d) (requiring officers of the Court to “issue and serve all process” in IFP cases). To

5 For this state law claim, Mr. Gladu seeks relief under 5 M.R.S. § 4682.
6 The Court received Mr. Gladu’s Complaint on May 9, 2022. Because Mr. Gladu was incarcerated, the

mailbox rule applies to his filings. Casanova v. Dubois, 304 F.3d 75, 78–79 (1st Cir. 2002) (adopting
mailbox rule for prisoner complaints). The mailbox rule treats pleadings as filed on “the date on which the
prisoner commits the mail to the custody of prison authorities.” Id. at 79. When the envelope containing a
prisoner’s mailed filing is available on the docket, courts typically use the postmark date as the date of filing.
See, e.g., Breese v. Maloney, 322 F. Supp. 2d 109, 112 n.2 (D. Mass. 2004). Here, the Complaint was
postmarked on May 4, 2022, so the Court considers Mr. Gladu’s Complaint filed on that date. ECF No. 1-1.

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do so, the Court posted a notice on the docket pursuant to an “Agreement on Service”
between the Clerk of Court and the Maine Attorney General. ECF No. 52; see D. Me. Local
R. App. III. The Agreement on Service provides that in IFP cases involving the State of
Maine or its employees, the case manager will add the Maine Attorney General as a
“Notice Only Party” to the electronic docket, such that the Attorney General’s Office
receives electronic notice of all case activity. D. Me. Local R. App. III. When the Court
orders service, the clerk enters a standard notice on the docket which “constitutes service
as directed by the court.” Id. The Attorney General then has thirty days to accept or decline
service: “If service is accepted, it shall constitute both proof of service and acceptance of
service . . .”; if “service is declined, the Attorney General, shall to the extent able, explain
the reason for declination” and the Court “shall immediately order in-hand service by the
United States Marshals Service.” Id.
In this case, the Attorney General accepted service on behalf of Named Defendants
Mr. Magnusson, Mr. Hancox, and Mr. Liberty. ECF No. 53. The Attorney General’s
acceptance of service did not mention the John Doe Defendants. At this point—more than
ten months after Mr. Gladu initially filed his Complaint—the sixty-day answer period
began to run. See Fed. R. Civ. P. 4(d)(3).
The Named Defendants moved to dismiss, ECF No. 54, which the Magistrate Judge
recommended granting, ECF No. 64. The Court agreed in part, allowing Counts I–III
(First Amendment, equal protection, and due process claims) to proceed and dismissing
Counts IV–VII (conspiracy, unauthorized taking of property, Maine Civil Rights Act, and
retaliation claims). ECF No. 96. At that point, on May 2, 2024, new private counsel
appeared for Mr. Magnusson; since that time, Mr. Magnusson mostly has filed his own
papers separate from Mr. Hancox and Mr. Liberty.
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After the decision on their motion to dismiss, the Named Defendants timely
answered the FAC on May 20 and 21, 2024. ECF Nos. 105, 106. The Magistrate Judge
issued a scheduling order setting the following relevant deadlines: August 8, 2024, to
amend the pleadings or join parties, and October 10, 2024, to complete discovery, ECF
No. 108.
Around the same time, Mr. Gladu filed two motions regarding the John Doe
Defendants. First, approximately a week and half before the Named Defendants filed their
answers, Mr. Gladu moved for “assistance” identifying the John Doe Defendants. ECF No.
104. Mr. Gladu explained he “need[ed] to know the names/identities of those defendants
in order to properly serve discovery documents and requests.” Id. The Named Defendants
opposed the motion as premature because Mr. Gladu could obtain that information
through discovery and stated their belief that Mr. Stanley in particular “is not a defendant
in this matter.” ECF No. 107, 109. In reply, Mr. Gladu claimed that “Officer Stanley is
named as a party to Plaintiff’s complaint” and “Plaintiff explained [in the FAC] that
Officer Stanley would be designated as a John Doe Defendant for the time being because
Plaintiff did not know Officer Stanley’s full legal name.” ECF No. 111.
Three weeks later, before the Magistrate Judge ruled on Mr. Gladu’s motion for
assistance, Mr. Gladu filed a motion requesting a status update on service of process on
the John Doe Defendants. ECF No. 113. Mr. Gladu accurately stated the Attorney
General’s Office had not accepted service on behalf of the John Doe Defendants. Before
any defendants responded to the request for a status update, the Magistrate Judge
granted Mr. Gladu’s motion for assistance in identifying the John Doe Defendants in part,
ordering Mr. Hancox and Mr. Liberty to identity the John Doe Defendants to the extent
possible. ECF No. 118.
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On June 14, 2024, Mr. Hancox and Mr. Liberty made two filings with the Court.
First, they objected to the Magistrate Judge’s order requiring them to identify the John
Doe Defendants because they had already done so: on June 10, 2024 (three days after the
Magistrate Judge’s order) they had provided Mr. Gladu with Mr. Reid and Mr. Stanley’s
first names, as well as the identity of a Grievance Review Officer. ECF No. 121. Mr. Hancox
and Mr. Liberty claimed they could not reasonably identify the other John Doe
Defendants.
Second, Mr. Hancox and Mr. Liberty responded to Mr. Gladu’s motion requesting
a status update on service. ECF No. 122. Counsel for Mr. Hancox and Mr. Liberty
reiterated that they had provided Mr. Gladu with names of the three John Doe Defendants
described above. Id. However, Mr. Hancox and Mr. Liberty claimed counsel for the
Named Defendants could not accept service on behalf of any John Doe Defendants,
including those for whom they had provided names. Id.
On June 21, 2024, the Magistrate Judge granted Mr. Gladu’s motion to “advise as
to the status of service” on the John Doe Defendants, ECF No. 130, and explained as
follows:
In their objection to the Court’s order on Plaintiff’s earlier motion,
Defendants Hancox and Liberty represent that they have provided
identifying information as to three individuals who were not specifically
named as parties but have been referenced by Plaintiff. If Plaintiff believes
the three named individuals are among the John Doe defendants, Plaintiff
shall move to substitute the individuals for the appropriate John Does.
Id. In fact, by the time the Magistrate Judge issued that order, Mr. Gladu had already (just
one week prior) moved to file a Third Amended Complaint (“TAC”) naming those three
individuals—Joseph

Theriault,

Andrew

Stanley,

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and

Myles

Reid

(the

“New

Defendants”)—as defendants. ECF No. 125. Mr. Gladu’s motion to amend was filed in
June 2024, before the August 8, 2024, deadline to amend the pleadings. See ECF No. 108.
Then, after the Magistrate Judge issued the order, but still before the August 8,
2024, deadline, Mr. Gladu formally moved to substitute those named individuals for John
Does 1–3 pursuant to the Magistrate Judge’s order. ECF No. 134. Mr. Hancox and Mr.
Liberty jointly opposed both motions, ECF No. 135, and Mr. Magnusson separately joined
their opposition.7
The Named Defendants raised three arguments against granting leave to amend.
First, they argued Mr. Gladu unduly delayed in naming Mr. Reid, Mr. Stanley, and Mr.
Theriault as defendants because he knew about the claims against those individuals when
he filed his original Complaint. Second, they argued amendment would be futile, because
Mr. Gladu’s claims against Mr. Reid and Mr. Stanley are conclusory and because Mr.
Gladu’s claims against Mr. Theriault rely on a non-existent constitutional interest in
effective prison grievance procedures and therefore fail to state a claim. Third, they
argued Mr. Gladu could not amend his complaint as of right for a second time.
The Magistrate Judge treated Mr. Gladu’s motion to substitute as a “supplement
to the motion to amend” and recommended the Court grant Mr. Gladu’s motions to

7 It is not clear whether Mr. Magnusson was entitled to adopt the other Named Defendants’ arguments by
reference. Mr. Magnusson cites Federal Rule of Civil Procedure 10(c), which by its terms only permits
adopting “[a] statement in a pleading” by reference. Fed. R. Civ. P. 10(c). Nonetheless, some courts allow
parties to adopt a co-party’s arguments for the sake of efficiency. Compare, e.g., Smith v. LVNV Funding,
LLC, No. 11-CV-356, 2014 WL 4441195, at *1 (E.D. Tenn. Sept. 9, 2014) (noting one defendant “adopts by
reference the same arguments advanced in” other defendants’ motion for summary judgment), with
Express Scripts, Inc. v. Kincaid, No. 19-CV-00007, 2020 WL 3027200, at *2 n.3 (E.D. Tenn. June 5, 2020)
(“Rule 10(c) only permits parties to adopt, by reference, statements made in pleadings, not other motions.
Accordingly, [one party’s] incorporation of [the other party’s] arguments for summary judgment was
improper.” (citations omitted)). Because the Court largely allows Mr. Gladu’s amendment (except as to Mr.
Theriault), the result is the same whether or not Mr. Magnusson properly opposed Mr. Gladu’s motion and
so the Court need not decide the matter.

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substitute Mr. Stanley and Mr. Reid for two John Doe Defendants and deny Mr. Gladu’s
motions in all other respects. ECF No. 193 (the “Recommended Decision”). Mr. Gladu,
Mr. Hancox, and Mr. Liberty (but not Mr. Magnusson) objected to the portions of the
Recommended Decision that went against them. ECF Nos. 194, 196.
STANDARD OF REVIEW
While the Court usually reviews a Magistrate Judge’s decision on a motion to
amend under the deferential standard applied to nondispositive motions, “a decision
rejecting an objection to amendment on futility grounds is actually a dispositive motion
since it entails an analysis of whether the proposed count can survive a motion to dismiss
for failure to state a claim.” Libby v. Webber Hosp. Ass’n, No. 13-CV-00238, 2014 WL
12726045, at *1 (D. Me. Feb. 28, 2014). Therefore, the Court reviews Mr. Gladu’s motion
for leave to file the TAC de novo. Fed. R. Civ. P. 72(b)(3). Still, the Court need only
consider arguments raised before the Magistrate Judge. Paterson-Leitch Co. v. Mass.
Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir. 1988) (“We hold categorically
that an unsuccessful party is not entitled as of right to de novo review by the judge of an
argument never seasonably raised before the magistrate.”).
DISCUSSSION8
A plaintiff suing in federal court is entitled to amend their complaint only once as
a matter of course. The plaintiff may choose when to exercise that option: either within
“21 days after serving” the original complaint, Fed. R. Civ. P. 15(a)(1)(A), or within the
earlier of “21 days after service of a responsive pleading or . . . motion [to dismiss],” Fed.

8 Mr. Gladu’s motion to substitute is duplicative of his motion to amend because his proposed TAC already

names the three people he later seeks to substitute. Therefore, the Court’s resolution of Mr. Gladu’s motion
to amend disposes of his motion to substitute.

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R. Civ. P. 15(a)(1)(B). But a plaintiff may not do both, because “[a] party may amend its
pleading once as a matter of course.” Fed. R. Civ. P. 15(a)(1) (emphasis added). If the
plaintiff amends his complaint immediately after serving it, he must seek “the opposing
party’s written consent or the court’s leave” to further amend the complaint—even if the
opposing party subsequently files a responsive pleading or moves to dismiss. Fed. R. Civ.
P. 15(a)(2). A post-amendment responsive pleading does not grant the plaintiff a second
chance to amend. Mr. Gladu amended his Complaint within twenty-one days of serving
it, before Defendants responded or moved to dismiss. Therefore, Mr. Gladu requires the
Court’s leave to file his TAC.
District courts “should freely give leave [to amend] when justice so requires.” Id.
“This does not mean, however, that a trial court must mindlessly grant every request for
leave to amend.” Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006). A court
may deny leave to amend where the circumstances indicate “undue delay, bad faith,
futility, [or] the absence of due diligence on the movant’s part.” Palmer v. Champion
Mortg., 465 F.3d 24, 30 (1st Cir. 2006).
An amendment is futile if the proposed complaint “fail[s] to meet the pleading
standards of [Federal Rule of Civil Procedure] 12(b)(6).” Glassman v. Computervision
Corp., 90 F.3d 617, 623 (1st Cir. 1996). Under Rule 12(b)(6), the Court applies a two-step
inquiry: First, “isolate and ignore statements in the [proposed] complaint that simply
offer legal labels and conclusions.” Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012). Second, “take the [proposed] complaint’s well-pled (i.e., nonconclusory, non-speculative) facts as true, drawing all reasonable inferences in the
pleader’s favor, and see if they plausibly narrate a claim for relief.” Id.

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The rigidity of that framework is slightly loosened because Mr. Gladu represents
himself. Pro se pleadings must “‘be liberally construed’ . . . and ‘a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). That broad solicitude toward unrepresented
parties “does not require [the Court] to conjure up unpled allegations,” however, Viera v.
De Souza, 22 F.4th 304, 311 (1st Cir. 2022) (quoting McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979)), nor does it permit the Court to “rewrite a petition to include claims that
were never presented,” id. (quoting Barnett v. Hargett, 174 F.3d 1128, 1132 (10th Cir.
1999)).
The motion to amend essentially presents four issues. First, whether Mr. Gladu
should be given leave to amend Counts IV–VII, which were previously dismissed by the
Court. Second, whether Mr. Gladu may add Mr. Reid and Mr. Stanley as defendants. The
analysis for Mr. Reid and Mr. Stanley largely overlaps because the claims against them
stem from their actions as Media Review Officers at MSP. Third, whether Mr. Gladu can
add Mr. Theriault as a defendant. Fourth, if the operative complaint going forward is the
TAC or the FAC.
I.

Counts IV–VII

Counts IV–VII of the TAC assert claims of conspiracy, unauthorized taking of
property, violation of Maine’s Civil Rights Act, and retaliation. The Court previously
dismissed Counts IV–VII of the FAC based on issue preclusion (as to Count V), failure to
state a claim (as to Counts IV and VII), and lack of supplemental jurisdiction (as to Count
VI). ECF No. 64 (R&R); ECF No. 96 (affirming R&R in relevant part).

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Usually, dismissal is a “final judgment that ‘slam[s] the door shut on the possibility
of future amendments to the complaint.’” U.S. ex rel. Karvelas v. Melrose-Wakefield
Hosp., 360 F.3d 220, 242 (1st Cir. 2004) (alteration in original) (quoting Mirpuri v. ACT
Mfg., Inc., 212 F.3d 624, 629 (1st Cir. 2000)). Here, the Court did not enter final judgment
on Counts IV–VII because Counts I–III remained pending. See Fed. R. Civ. P. 54(b)
(“[A]ny order or other decision, however designated, that adjudicates fewer than all the
claims . . . does not end the action . . . .”). Therefore, the Court’s previous dismissal of
Counts IV–VII does not operate as a final judgment and the Court must freely grant leave
to amend absent undue delay, bad faith, futility, or a lack of due diligence on Mr. Gladu’s
part. Palmer, 465 F.3d at 30 (“Amendments may be permitted pre-judgment, even after
a dismissal for failure to state a claim . . . .”). Plaintiffs generally are entitled to amend a
complaint with “changes that [are] directly responsive to the district court’s stated
reasons for dismissing the original complaint,” or even “incorporat[ing] some new
information” into the amended complaint. Amyndas Pharms., S.A. v. Zealand Pharma
A/S, 48 F.4th 18, 40 (1st Cir. 2022).
While the TAC asserts no new causes of action, the TAC contains new and more
detailed factual allegations than the FAC to support Counts IV–VII. Indeed, the TAC is
nearly twice as long as the FAC. Those factual allegations in the body of the TAC, not the
bare legal conclusions of the causes of action, inform the Court’s analysis under the Rule
12(b)(6) standard. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 10 (1st Cir. 2011).
The Magistrate Judge denied leave to amend Counts IV–VII. ECF No. 193. Mr.
Gladu objected to this aspect of the Recommended Decision. ECF No. 194 at 3–4.
Therefore, the Court reviews the motion for leave to amend Counts IV–VII de novo.

16

The Named Defendants did not oppose Mr. Gladu’s motion to amend Counts IV–
VII. The Named Defendants’ responses to Mr. Gladu’s motion to amend challenged only
the addition of the three John Doe Defendants. See ECF No. 127 at 2 (“Plaintiff should
not be permitted to amend again to add Reid, Stanley, or Theriault . . . .” (emphasis
added)); id. at 3(“[T]he allegations against Officers Reid and Stanley are conclusory and
insufficient to state a cause of action . . . .” (emphasis added)).
For his part, Mr. Gladu maintains in his objection that the TAC “cure[s] the
deficiencies previously noted by the Court” that were “the purported basis of that prior
dismissal” of Counts IV–VII. ECF No. 194 at 3–4. This echoes his argument, first made in
the motion to amend, that the FAC lacked certain “necessary[,] essential[,] and
supplemental facts,” and the TAC therefore allegedly “correct[s] defects and other
technical issues with [the FAC].” ECF No. 125. As such, Mr. Gladu’s briefing squarely
raises the argument that he is entitled to amend his complaint to make changes “directly
responsive to the district court’s stated reasons for dismissing” his claims. Amyndas
Pharms., 48 F.4th at 40.
The Named Defendants do not address Mr. Gladu’s arguments supporting his
motion to amend Counts IV–VII in their response to his objection. See ECF No. 196. Nor
did they address any aspect of Counts IV–VII of the TAC—which allegedly cures defects
in the FAC—in their opposition to his motion to amend. See ECF No. 127.
Therefore, because the Court must give leave to amend “freely,” Fed. R. Civ. P.
15(a)(2), and no defendant raised any argument against amending Counts IV–VII, the

17

Court will grant Mr. Gladu’s motion to amend Counts IV–VII.9 Granting leave to amend
does not prevent a defendant from later moving to dismiss the amended complaint, but
“it is cleaner to address the merits” on a motion to dismiss with the benefit of full briefing
than on a motion to amend. Light v. Town of Livermore, No. 21-CV-00266, 2022 WL
3154762, at *3 (D. Me. Aug. 8, 2022) (declining to address questions of standing and
mootness “under the shadow of the ‘freely given’ standard” of Rule 15(a)).
II.

Addition of Mr. Reid and Mr. Stanley

Mr. Hancox and Mr. Liberty object to the Recommended Decision insofar as it
permits Mr. Gladu to add Mr. Reid and Mr. Stanley as Defendants. Mr. Hancox and Mr.
Liberty argue leave to amend should be denied because Mr. Gladu unduly delayed in
adding Mr. Reid and Mr. Stanley as Defendants and because amendment would be futile.
See Palmer, 465 F.3d at 30.
A. Undue Delay
Although delay alone is not enough to bar amendment, Carmona v. Toledo, 215
F.3d 124, 136 (1st Cir. 2000), undue delay is, see In re Lombardo, 755 F.3d 1, 3 (1st Cir.
2014). Delay is undue when it causes prejudice. Carmona, 215 F.3d at 136. And “in
assessing whether delay is undue, a court will take account of what the movant ‘knew or
should have known and what he did or should have done.’” Lombardo, 755 F.3d at 3–4

9 Count VI asserts a claim under the Maine Civil Right Act. 5 M.R.S. § 4682. The Magistrate Judge initially

dismissed Count VI of the FAC on jurisdictional grounds because all pending federal claims had been
dismissed. ECF No. 64 at 10; see 28 U.S.C. § 1367(c)(3). While the Court ultimately rejected the dismissal
of some federal claims, the Court did not reassert supplemental jurisdiction over Count VI. See ECF No. 96.
Now, with all of Mr. Gladu’s federal claims revived, and because none of the factors in § 1367(c) counsel
against exercising jurisdiction, the Court will exercise its supplemental jurisdiction over Count VI. See
Mass. Delivery Ass’n v. Coakley, 671 F.3d 33, 40 (1st Cir. 2012) (“The normal rule is that the federal courts
must exercise their jurisdiction and decide cases brought before them.”); 28 U.S.C. § 1367(a) (explaining
“district courts shall have supplemental jurisdiction” over related claims (emphasis added)).

18

(quoting Invest Almaz v. Temple–Inland Forest Prods. Corp., 243 F.3d 57, 72 (1st Cir.
2001)).10
Mr. Gladu did not unduly delay in naming Mr. Reid and Mr. Stanley as Defendants.
The Court begins with what Mr. Gladu “knew or should have known” when he filed the
FAC. Id. As Defendants concede, it is clear from the FAC that Mr. Gladu knew he had
claims against Mr. Reid and Mr. Stanley when he filed the FAC, because the FAC contains
numerous allegations against Mr. Reid and Mr. Stanley, identifying them by their last
names. See ECF No. 11 at 3 (naming “Officer Reid” four times); id. at 5 (naming “Officer
Stanley” twelve times).
Turning to what Mr. Gladu “did,” it is apparent that Mr. Gladu attempted to name
Mr. Reid and Mr. Stanley as defendants in the FAC. While Federal Rule of Civil Procedure
10(a) generally requires the caption “include the names of all the parties,” Fed. R. Civ P.
10(a), a case’s “caption is not determinative as to the identity of the parties to the action,”
Charles Alan Wright & Arthur R. Miller, 5A Federal Practice and Procedure § 1321 (4th
ed. 2024), cited with approval in U.S. ex rel. Eisenstein v. City of New York, 556 U.S.
928, 935 (2009). Especially in pro se cases, courts look to the body of a complaint to
determine the intended defendants. See Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243–44
(10th Cir. 2007) (“[W]hen the identity of the defendants is unclear from the caption,

10 Defendants reference the often-cited precept that pro se litigants are not exempt from complying with

procedural rules. See F.D.I.C. v. Anchor Props., 13 F.3d 27, 31 (1st Cir. 1994). However, in filing his motion
to amend, Mr. Gladu complied with all relevant procedural rules. Indeed, Federal Rule of Civil Procedure
15(a) expressly provides that plaintiffs may seek leave to amend and requires the Court to give such leave
freely. Fed. R. Civ. P. 15(a)(2). Nothing prevents the Court from considering Mr. Gladu’s pro se status in
determining what he “knew or should have known and what he did or should have done.” Lombardo, 755
F.3d at 3–4 (quoting Invest Almaz, 243 F.3d at 72); see also Leonard v. Parry, 219 F.3d 25, 30 (1st Cir.
2000) (considering “everything that [the court] can glean about [plaintiff’s] knowledge at the time he filed
his original complaint”).

19

courts may look to the body of the complaint to determine who the intended and proper
defendants are.”); Shariff v. United States, 689 F. App’x 18, 20 (2d Cir. 2017) (holding
list of names appended to bottom of complaint sufficiently identified defendants such that
plaintiff was entitled to amend caption).
Here, the FAC’s caption named “John Does 1–7.” ECF No. 11. On the top of the
second page, under the heading “Parties,” the FAC stated that “Defendants John Does 1–
3 are media review officers (whose first names are unknown to [Mr. Gladu], but their last
names are believed to be Reid, Stanley, and Unknown) and are/were responsible for
reviewing publications sent to prisoners at MSP.” ECF No. 11 at 2 (emphasis added). The
FAC therefore identified Mr. Reid and Mr. Stanley’s surnames, their place of employment,
and their positions as Media Review Officers at MSP. These descriptions were sufficient
to enable the Maine Attorney General to ascertain that Mr. Gladu intended to sue Mr.
Reid and Mr. Stanley. See Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992) (prisoner
“described with sufficient clarity the head of the Jefferson County Jail as his additional
defendant” who had been named John Doe in the caption); cf. Eison v. McCoy, 146 F.3d
468, 471 (7th Cir. 1998) (finding plaintiff did not adequately identify Chicago police
officers by using only nicknames, such as “Pac Man” and “Crater Face,” particularly in a
police force “that employs in excess of 17,000 individuals”); Murphy v. Kellar, 950 F.2d
290, 293 (5th Cir. 1992) (holding suit in which prisoner gave officers’ last names and
described their physical appearances was not frivolous). Indeed, the FAC was clear
enough that the Maine Attorney General could eventually provide Mr. Reid and Mr.
Stanley’s first names to Mr. Gladu. See ECF No. 121 at 1 (“[C]ounsel for Defendants
Liberty and Hancox provided Plaintiff with the first names they believe are accurate for
Officers Reid and Stanley, who are referenced by last name in the Amended Complaint.”).
20

The Named Defendants concede the FAC identifies Mr. Reid and Mr. Stanley. ECF
No. 196 at 4 (“All [the New Defendants] are discussed in detail by name in the original
complaint and amended complaint.”). Still, the Named Defendants claim the FAC failed
“to make clear [Mr. Gladu’s] intent to sue” Mr. Reid and Mr. Stanley. Id. (emphasis
added).
The Court disagrees. No reasonable person could read the FAC—which, it bears
repeating, states that “Defendants John Does 1–3 are media review officers . . . [whose]
last names are believed to be Reid, Stanley, and unknown”—and not conclude Mr. Gladu
intended to sue Mr. Reid and Mr. Stanley.11 When a complaint “names [defendants] in
such terms that every intelligent person understands who is meant . . . it has fulfilled its
purpose; and courts should not put themselves in the position of failing to recognize what
is apparent to everyone else.” Barsten v. Dep’t of Interior, 896 F.2d 422, 423 (9th Cir.
1990) (quoting United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir.
1947)).
Moreover, Mr. Gladu made efforts over the course of this litigation to properly
name Mr. Reid and Mr. Stanley as defendants, therefore indicating he intended to sue
them. On May 10, 2024, Mr. Gladu moved for “assistance” in further identifying the John
Doe Defendants, which the Named Defendants opposed as premature, arguing the names
could be revealed through discovery. ECF Nos. 104, 107, 109. The Magistrate Judge
granted the motion in part on June 5, 2024, ECF No. 118, and on June 10, 2024, counsel
for Mr. Hancox and Mr. Liberty provided Mr. Gladu with the first names of Officers Reid

11 Moreover, while Mr. Hancox and Mr. Liberty claimed they were unable to determine the identities of BShift John Does based on Mr. Gladu’s description, ECF No. 121, they make no such claim regarding Mr.
Reid and Mr. Stanley.

21

and Stanley.12 See ECF No. 121. Around the same time, Mr. Gladu requested a status
update from the Court regarding service on the John Doe Defendants, ECF No. 113, which
the Court provided, ECF No. 130. All these efforts should have made clear to the Named
Defendants that Mr. Gladu intended to sue Mr. Reid and Mr. Stanley.
In short, Mr. Gladu did what he was supposed to do in such circumstances: he sued
two defendants under fictitious names, identified them to the extent possible, and once
discovery began sought those defendants’ full names so as to properly name them as
defendants. See Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 8 (1st Cir. 2007)
(“[W]hen, as here, a party is ignorant of defendants’ true identity, it is unnecessary to
name them until their identity can be learned through discovery or through the aid of the
trial court.” (quoting Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980)).
The Named Defendants claim they will be prejudiced if Mr. Gladu is permitted to
add Mr. Reid and Mr. Stanley as defendants. The Court recognizes allowing amendment
at this point will extend this already-lengthy litigation, but such delay is not inherently
prejudicial. Here, “no new legal theories are involved in the amendment,” nor can the
Named Defendants claim surprise given Mr. Gladu’s stated intention, since the lawsuit’s
very inception, to name the New Defendants when able. Carmona, 215 F.3d 136. The
Court “do[es] not believe that [Mr. Gladu’s] conduct was so dilatory as to deprive [him]
of the opportunity to make use of this long-sought-after identification” of Mr. Reid and
Mr. Stanley. Id.; see also Boliden Metech, Inc. v. United States, 140 F.R.D. 254, 256–57
(D.R.I. 1991) (allowing amendment to include the United States as a defendant when

12 Discovery was scheduled to close in October 2024, after the deadline to amend the pleadings. Therefore,

had the Magistrate Judge not ordered the Named Defendants to provide Mr. Reid and Mr. Stanley’s first
names, such discovery could have been delayed until it was too late for Mr. Gladu to amend his FAC.

22

“[s]ervice of the original complaint was made on the same people, the United States
Attorney and the Attorney General, who would have been served had the caption in the
original complaint not mistakenly identified [a federal agency] as the defendant”).
Therefore, considering what Mr. Gladu “knew or should have known and what he
did or should have done,” the Court finds Mr. Gladu did not unduly delay in formally
naming Mr. Reid and Mr. Stanley as defendants. Lombardo, 755 F.3d at 3–4 (quoting
Invest Almaz, 243 F.3d at 72).
B. Futility
The Named Defendants argue Mr. Gladu’s claims against Mr. Reid and Mr. Stanley
are futile because the allegations “place responsibility on Defendants Hancox and Liberty
and are insufficient to state a claim . . . against Officers Reid or Stanley.” ECF No. 196 at
7. Because “the heart of [Mr. Gladu’s] suit is a challenge to the alleged ‘porn restriction’”
imposed by Mr. Liberty and Mr. Hancox, the Named Defendants argue Mr. Gladu cannot
ascribe any blame to Mr. Reid and Mr. Stanley. Id.
Liability under 42 U.S.C. § 1983 attaches when a defendant “subjects” another to
the deprivation of a constitutional right—that is, “if he [or she] does an affirmative act,
participates in another’s affirmative acts, or omits to perform an affirmative act which he
[or she] is legally required to do, that causes the deprivation of which complaint is made.”
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 560 (1st Cir. 1989) (quoting Springer
v. Seaman, 821 F.2d 871, 879 (1st Cir.1987)).
The TAC alleges, and the Court therefore at this stage in the proceeding accepts as
true, Mr. Reid was temporarily assigned as a Media Review Officer and in that position
relied on his “personal predilections” to screen incoming materials. ECF No. 125-1 at 8.
On February 24, 2022, Mr. Reid rejected delivery of four Playgirl magazines Mr. Gladu
23

had ordered. Mr. Reid provided pretextual reasons for the rejection, when in fact he was
motivated by discriminatory bias. Mr. Gladu supports that claim by alleging Mr. Reid
stated, “I didn’t sign up for this job to look at magazines with dick all day.” ECF No. 1251 at 10. The TAC further alleges Mr. Reid told other inmates that publications depicting
male nudity “disgusted” him. Id.
The TAC alleges Mr. Stanley was assigned as a Media Review Officer and rejected
books Mr. Gladu ordered. Mr. Stanley told Mr. Gladu, “Look man, I don’t know what you
did to piss them off, but they defin[i]tely got it out for you right now,” allegedly referring
to Mr. Magnusson and others. ECF No. 125-1 at 11. Mr. Magnusson and Mr. Hancox
instructed Mr. Stanley to tell Mr. Gladu the books had been rejected because they were
sent by non-approved vendors—which Mr. Stanley did—while in fact Mr. Magnusson and
Mr. Hancox had placed Mr. Gladu on a pornography restriction because they did not
approve of materials depicting male nudity. ECF No. 125-1 at 11.
These allegations from the TAC plainly attribute responsibility for the alleged
constitutional violations on both Mr. Reid and Mr. Stanley, as well as Mr. Hancox and
Mr. Liberty. Even crediting the Named Defendants’ argument that Mr. Reid and Mr.
Stanley merely executed the challenged pornography restriction allegedly imposed by Mr.
Hancox and Mr. Liberty, such conduct constitutes “participat[ing] in another’s
affirmative acts,” and therefore opens Mr. Reid and Mr. Stanley to liability. GutierrezRodriguez, 882 F.2d at 560. The Named Defendants cite no cases suggesting a plaintiff
may sue only the most culpable defendants at “the heart” of a matter. See ECF No. 196 at
7.
The Named Defendants make no other argument for why the TAC fails to state a
claim as to Mr. Reid and Mr. Stanley, so the Court need go no further on that front. United
24

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed
waived.”). The Court will grant leave to amend to add Mr. Reid and Mr. Stanley as
defendants.
III.

Addition of Mr. Theriault

Mr. Gladu objects to the Recommended Decision’s denial of leave to add Mr.
Theriault as a defendant as to Mr. Gladu’s due process claim (Count III). The TAC alleges
Mr. Theriault was the Grievance Review Officer (“GRO”) at MSP and that he “failed to
process” grievances Mr. Gladu submitted, thereby preventing Mr. Gladu from further
appealing his grievances to the warden. ECF No. 125-1 at 16. Mr. Gladu acknowledges
prisoners are “not entitled to meaningful prison grievance procedures” but claims a
GRO’s failure to comply with internal policy governing such procedures constitutes a due
process violation. Id. To that end, Mr. Gladu argues Mr. Theriault’s alleged failure to
process the grievances denied Mr. Gladu of his right “to have his censored books reviewed
by someone other than the censor.” ECF No 194 at 2.
A prison official does not offend due process solely by failing to implement a prison
grievance procedure. Reichert v. Abbott, No. 19-1876, 2020 WL 5588647, at *1 (1st Cir.
June 8, 2020) (summary disposition). Notwithstanding of any grievance policy, however,
a prisoner is constitutionally entitled to some safeguards concerning censorship
decisions. The prisoner must be “notified of the rejection[,] . . . be given a reasonable
opportunity to protest that decision, and . . . complaints [must] be referred to a prison
official other than the person who originally disapproved the correspondence.” Lena v.
DuBois, 19 F.3d 1427, 1994 WL 99940, at *1 (1st Cir. 1994) (table decision) (quoting
Procunier v. Martinez, 416 U.S. 396, 418–19 (1974)).
25

Taking the TAC’s allegations as true, Mr. Gladu was afforded all process due. He
was notified when the books and magazines he ordered were rejected. He was given “a
reasonable opportunity to protest that decision,” which he availed himself of by filing a
grievance challenging the rejection of his books and magazines. Id. Finally, those
grievances were referred to Mr. Theriault, “a prison official other than the person who
originally” rejected Mr. Gladu’s books and magazines. Id.
While Mr. Theriault’s alleged failure to process the grievances at that stage may
have prevented Mr. Gladu from further appealing to the warden, Mr. Gladu is not entitled
to multiple levels of internal appeal. Cf. Starr v. Coulombe, 368 F. App’x 156, 158 (1st Cir.
2010) (holding effective shortening of appeal window to challenge prison mail decisions
from ten to five days such that prisoner could not appeal, though contrary to prison policy,
was not unreasonable). Therefore, Mr. Theriault cannot be added as a defendant as to
Count III.
IV.

Operative Complaint

Finally, Mr. Gladu objects to the Recommended Decision insofar as it did not
designate the TAC as the operative complaint. ECF No. 194 at 4–5. Mr. Gladu argues the
TAC alleges facts that “read clearer and strengthen [his] existing claims.” Id. at 5. The
Named Defendants do not respond to this argument in their briefing.
The Court may grant a motion to amend for the purpose of clarifying a complaint.
Dempsey v. Nat’l Enquirer, Inc., 687 F. Supp. 692, 693 (D. Me. 1988) (granting motion
to amend where plaintiff claimed amended complaint made “his allegations against the
defendants clearer” and attempted to cure “any technical deficiencies”); see also Aaron v.
City of Lowell, No. 20-CV-11604, 2022 WL 2953033, at *5 (D. Mass. July 26, 2022)
(granting motion to amend due to “lack of formal objection” and “the benefits of working
26

with a clearer complaint”). Here, because the Court permits Mr. Gladu to revive Counts
IV–VII based on his pleading new facts in the TAC which allegedly support those claims,
the Court treats the TAC as the operative complaint.
CONCLUSION
For the foregoing reasons, the Recommended Decision, ECF No. 193, is
ACCEPTED IN PART and REJECTED IN PART. Mr. Gladu’s motion for leave to file
a Third Amended Complaint, ECF No. 125, is GRANTED to the following extent:
?

The Third Amended Complaint is the operative complaint.

?

Counts IV–VII are revived.

?

Myles Reid and Andrew Stanley are added as defendants for all Counts.

Mr. Gladu’s motion is DENIED to the extent he seeks to add Joseph Theriault as
a defendant. Mr. Gladu’s motion to substitute, ECF No. 134, is DENIED as moot.
SO ORDERED.
Dated this 10th day of March, 2025.
/s/ Stacey D. Neumann
U.S. DISTRICT JUDGE

27