GLADU v. ROSS et al
ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE - adopting Report and Recommended Decision re 142 Report and Recommendations for 131 Motion to Amend. By JUDGE D. BROCK HORNBY. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU,
CIVIL NO. 2:15-CV-274-DBH
ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On March 21, 2017, the United States Magistrate Judge filed with the
court, with copies to the parties, his Recommended Decision on Motion to Amend
(ECF No. 142). The plaintiff filed an objection (ECF No. 143) to the Recommended
Decision on April 10, 2017. I have reviewed and considered the Recommended
Decision, together with the entire record; I have made a de novo determination
of all matters adjudicated by the Recommended Decision; and I concur with the
recommendations of the United States Magistrate Judge for the reasons set forth
in the Recommended Decision, as amended or clarified below, and determine
that no further proceeding is necessary.
In his objection, the plaintiff explicitly waived objection to the
Recommended Decision on Counts I, III and IV of the proposed First Amended
In his proposed First Amended Complaint, the plaintiff pleaded Count II
SECOND CAUSE OF ACTION
Violation of 42 U.S.C. Section 1985 and Conspiracy
Plaintiff repeats and incorporates by reference
Paragraphs 1 through 57 of this Complaint as though fully
set forth herein.
Defendant Ross, unlawfully conspired to
deprive Plaintiff of Constitutional rights, statutory rights,
and personal freedoms by conspiring to engage in the acts
As a proximate result of Defendant’s
conspiracy, Plaintiff has incurred financial losses and
suffered severe emotional distress.
In performing the act herein alleged, Defendant
Ross acted fraudulently, maliciously, and oppressively,
within the scope and meaning of 42 U.S.C. § 1985 and
common law rights, thereby justifying an award of damages
in an amount according to proof.
First Am. Compl. (ECF No. 129) at 9.
Not surprisingly, the Magistrate Judge treated this as a general section
1985 conspiracy claim and reasoned that such a claim “is actionable only under
circumstances involving an equal protection violation, i.e., circumstances
involving discriminatory class-based animus,” Recommended Decision at 11,
(citing Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1192 (1st Cir. 1996).
This plaintiff did not allege any such discriminatory circumstances, and the
Magistrate Judge was correct so far as section 1985(3) is concerned. I therefore
OVERRULE the plaintiff’s objection based on section 1985(3) (and on his newly
asserted section 1983 conspiracy claim in this Count, a claim that did not even
appear in the proposed First Amended Complaint).
But the plaintiff points out that an equal protection violation is not
required for a conspiracy charged under 42 U.S.C. § 1985(2), i.e., a conspiracy,
in the words of that statute, “to deter, by force, intimidation, or threat, any party
or witness in any court of the United States from attending such court, or from
testifying to any matter pending therein, freely, fully, and truthfully . . . .” See
Kush v. Rutledge, 460 U.S. 719, 726 (1983). In fact, the plaintiff’s Count II as
quoted above does not allege any of these elements either. I have nevertheless
examined all the factual allegations of the proposed First Amended Complaint in
search for support of this claim, and I find only the following assertions of
Following an initial investigation by MDOC
[prior to Plaintiff taking any legal action] it was confirmed
that video evidence was reviewed and concluded that Officer
Gowen’s use of force was not justified nor an approved
Departmental technique. Moreover, Plaintiff’s claim was
After initiating legal action, MDOC apparently
re-investigated the matter. Those findings now dispute [the
numerous claims] that video recording of the incident existed
and attempt to minimize any wrong-doing by Defendant
Upon information and belief, Defendant Troy
Ross and other prison staff have conspired to deprive Plaintiff
of video evidence that depicts him being assaulted by an out
of control and enraged corrections officer, without need or
Upon information and belief, Defendant Ross
engaged in a voluntary agreement to further overt acts with
other prison staff, expressly or impliedly, which consisted of
the destruction and concealment of video recorded evidence
that would shock the conscience of the public if leaked or
released, by revealing exactly what occurred during the
incident that gives rise to this Complaint.
Upon information and belief, Defendant Ross
has engaged prison staff who are witness to the allegations
here, personally and through third-party, and expressly or
impliedly, suggested that they invoke the code of silence in
regards to the issues alleged above, including fabricating and
falsifying documents and testimony.
Defendant Ross swore out an affidavit, alleging
No video evidence existed then or now. Said affidavit alleged
the video that would have captured the assault, was not
connected to recording devices.
First Am. Compl. at 4-7.
None of these allegations asserts that the defendant Ross deterred or
conspired to deter any party or witness from attending or testifying in federal
court by means of “force, intimidation, or threat.” See Haddle v. Garrison, 525
U.S. 121, 125 & n.3 (1998) (“The gist of the wrong at which § 1985(2) is directed
is . . . intimidation or retaliation against witnesses in federal-court proceedings,”
while expressing “no opinion” on whether intimidation must involve “force or
threat of force.”) Here the plaintiff asserts no intimidation of any kind. I have
found no cases where asserted spoliation of evidence (the gist of the allegation
about the video here) has been presented as a section 1985(2) violation. As a
result, I agree with the Magistrate Judge that Count II cannot proceed, albeit for
the foregoing modified reasoning.
It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED.
The plaintiff’s motion to amend his complaint is
GRANTED IN PART AND DENIED IN PART as follows:
The request to amend to add the § 1983 deliberate indifference and
approval/ratification claims asserted in Count I of the proposed amended
complaint is DENIED.
The request to amend to add the § 1985 conspiracy claim asserted
in Count II of the proposed amended complaint is DENIED.
The request to amend to add the negligent infliction of emotional
distress claim asserted in Count IV of the proposed amended complaint is
The request to amend to add the negligent supervision/vicarious
liability claim asserted in Count V of the proposed amended complaint is DENIED.
The request to amend to add Ross and the Department of
Corrections as defendants is DENIED.
Otherwise, the motion to amend the complaint is GRANTED.
DATED THIS 19TH DAY OF APRIL, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
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