GLADU v. CORRECT CARE SOLUTIONS et al

Filing 483

REPORT AND RECOMMENDED DECISION re 431 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by NICHOLAS A GLADU. Objections to R&R due by 11/29/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

NICHOLAS A. GLADU,

)
)
Plaintiff,
)
)
v.
)
)
CORRECT CARE SOLUTIONS, et al., )
)
Defendants
)

2:15-cv-00384-JAW

RECOMMENDED DECISION ON
MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
In this action filed pursuant to 42 U.S.C. § 1983, Plaintiff Nicholas Gladu, an inmate
at the Maine Correctional Center, alleges that Defendants acted with deliberate indifference
toward Plaintiff’s serious medical condition.
The matter is before the Court on Plaintiff’s motion for temporary restraining order
and preliminary injunction.1 (ECF No. 431.) Through his motion, Plaintiff evidently seeks
a court order requiring Defendants to provide certain medical care.
Following a review of the parties’ arguments and the record, I recommend the Court
deny the motion.

1

In his motion, Plaintiff asked the Court to defer its ruling until after the Court heard testimony of Ovidiu
Rivis, M.D. Because I denied Plaintiff’s request for an evidentiary hearing, I will address the merits of
Plaintiff’s motion in this Recommended Decision.

Discussion
To obtain injunctive relief, 2 Plaintiff must show (1) a substantial likelihood of
success on the merits, (2) a significant potential for irreparable harm if the injunction is
withheld, (3) a favorable balance of hardships,3 and (4) a fit (or lack of friction) between
the injunction and the public interest. 4 Nieves–Marquez v. Puerto Rico, 353 F.3d 108, 120
(1st Cir. 2003); Hoffman v. Sec’y of State of Me., 574 F. Supp. 2d 179, 186 (D. Me. 2008).
“The sine qua non of this four-part inquiry is likelihood of success on the merits; if the
moving party cannot demonstrate that he is likely to succeed in his quest, the remaining
factors become matters of idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom,
Inc., 287 F.3d 1, 9 (1st Cir. 2002).
Plaintiff requests both a temporary restraining order (TRO) and a preliminary
injunction. Generally, the distinction between the two forms of injunctive relief is that the
former can be awarded without notice to the other party and an opportunity to be heard.
Int’l Ass’n of Machinists & Aerospace Workers v. Verso Paper Corp., 80 F. Supp. 3d 247,
278 (D. Me. 2015). A temporary restraining order, therefore, is an even more exceptional
remedy than a preliminary injunction, which is itself “an extraordinary and drastic remedy
that is never awarded as of right.” Voice of the Arab World, Inc. v. MDTV Med. News Now,

2

Because the elements that Plaintiff must satisfy to obtain a preliminary injunction are similar to the
elements necessary to secure a temporary restraining order, the analysis is equally applicable to both
requests. Newton v. LePage, 789 F. Supp. 2d 172, 178 (D. Me. 2011).
3

Plaintiff must demonstrate that his claimed injury outweighs any harm that granting the injunctive relief
would inflict upon Defendants. Lancor v. Lebanon Hous. Auth., 760 F. 2d 361, 362 (1st Cir. 1985).
Plaintiff must prove that “the public interest will not be adversely affected by the granting of the
injunction.” Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981).
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2

Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v. Geren, 553 U.S. 674, 689 – 90
(2008)). By rule, a temporary restraining order requires a clear showing “that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse party
can be heard in opposition.” Fed. R. Civ. P. 65(b)(1).
Regardless of the form of the injunctive relief Plaintiff seeks, “[t]he dramatic and
drastic power of injunctive force may be unleashed only against conditions generating a
presently existing actual threat; it may not be used simply to eliminate a possibility of a
remote future injury, or a future invasion of rights, be those rights protected by statute or
by the common law.” Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir.
1969). Moreover, “judicial restraint is especially called for in dealing with the complex
and intractable problems of prison administration.” Rogers v. Scurr, 676 F.2d 1211, 1214
(8th Cir. 1982).
Through his motion, Plaintiff maintains injunctive relief is necessary because he “is
in need of necessary medical care and treatment” because he is “losing weight steadily,”
his “hands, feet, face and tongue are numb and tingly,” he is “constantly very dehydrated,”
his “kidneys hurt and [he] feel[s] swollen in that area of [his] body,” his “bones hurt,” he
is “very susceptible to infection,” and he feels “weak and fatigued.” (Motion, ECF No.
431.)
To be entitled to injunctive relief, Plaintiff must first establish that he is likely to
prevail on his underlying claim. Here, Plaintiff contends that Defendants have acted with
deliberate indifference to his medical needs. Even if the medical needs identified in
Plaintiff’s motion and in various other motions filed by Plaintiff are considered to be bases
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for Plaintiff’s underlying deliberate indifference claim, Plaintiff is not entitled to injunctive
relief.
The Due Process Clause imposes on the states the “substantive obligation” not to
treat prisoners in their care in a manner that reflects “deliberate indifference” toward “a
substantial risk of serious harm to health,” Coscia v. Town of Pembroke, 659 F.3d 37, 39
(1st Cir. 2011), or “serious medical needs,” Feeney v. Corr. Med. Servs., 464 F.3d 158,
161 (1st Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 105 – 106 (1976)). A
deliberate indifference claim must satisfy both an objective and a subjective standard.
Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir. 2011).
The objective standard evaluates the seriousness of the risk of harm to one’s health.
For a medical condition to be objectively “serious,” there must be “a sufficiently substantial
‘risk of serious damage to [the inmate’s] future health.’” Farmer v. Brennan, 511 U.S. 825,
843 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). A medical need is
serious if it has been diagnosed by a physician as mandating treatment, or is so obvious
that even a lay person would recognize a need for medical intervention. Leavitt, 645 F.3d
at 497; Gaudreault v. Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990), cert. denied, 500
U.S. 956 (1991).
The subjective standard concerns the culpability of the defendant. There must be
evidence that a particular defendant possessed a culpable state of mind amounting to
“deliberate indifference to an inmate’s health or safety.” Farmer, 511 U.S. at 834 (internal
quotation marks omitted).

Deliberate indifference is akin to criminal recklessness,

“requiring actual knowledge of impending harm, easily preventable.” Feeney, 464 F.3d at
4

162 (quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)). The focus of the
deliberate indifference analysis “is on what the jailers knew and what they did in response.”
Burrell v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir. 2002).
Plaintiff has failed to establish that he is likely to prevail on his claim. The
declarations filed by some of Plaintiff’s health care providers demonstrate that Defendants
have examined Plaintiff on a regular basis, ordered various diagnostic tests, and have
treated Plaintiff in accordance with their assessment of his condition. (EFC Nos. 438-1,
438-2, 438-3.) Plaintiff has presented no persuasive medical evidence to suggest that he is
likely to establish that Defendants’ conduct constitutes deliberate indifference. In addition,
given the medical providers’ declarations, Plaintiff has also failed to demonstrate that he
will suffer irreparable harm or that he will suffer any hardship if an injunction is not issued.
Finally, without any record evidence to support his deliberate indifference claim, the
balance between an injunction and the public interest militates against an injunction
particularly given that “judicial restraint is especially called for in dealing with the complex
and intractable problems of prison administration.” Rogers, 676 F.2d at 1214. In sum,
Plaintiff is not entitled to the requested injunctive relief.
Conclusion
Based on the foregoing analysis, I recommend the Court deny Plaintiff’s motion for
temporary restraining order and preliminary injunction.

NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
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pursuant to 28 U.S.C. Section 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 15th day of November, 2017.

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