GLADU v. CORRECT CARE SOLUTIONS et al

Filing 541

ORDER adopting 512 Report and Recommended Decision for 261 Motion for Summary Judgment filed by MAINE DEPARTMENT OF CORRECTIONS and SUSAN CARR, and for 266 Motion for Summary Judgment filed by CORRECT CARE SOLUTIONS, ROBERT CLINTON, GEORGE STOCKWELL, and WENDY RIEBE; granting 261 Motion for Summary Judgment; granting 266 Motion for Summary Judgment. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU,

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

2:15-cv-00384-JAW

ORDER AFFIRMING THE RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
A prisoner in Maine custody brought suit challenging the decisions of
correctional staff and medical providers concerning his bilateral hip pain. The Court
affirms the Magistrate Judge’s recommended decision and grants summary judgment
in favor of the defendants.
I.

BACKGROUND
On September 23, 2015, Nicholas A. Gladu filed a complaint with this Court

against Correct Care Solutions and a number of individual defendants, alleging that
while confined in the Maine State Prison and Maine Correctional Center, he did not
receive proper medical treatment for bilateral hip pain and that the Defendants
retaliated against him for filing grievances within the prison system. Verified Compl.
for Damages and Inj. Relief (ECF No. 1). On December 21, 2015, Correct Care
Solutions, Robert Clinton, M.D., George Stockwell, D.O., and Wendy Riebe
(collectively CCS) answered the Complaint, denying its essential allegations and

raising affirmative defenses. Answer, Defenses and Affirmative Defenses of Defs.
Correct Care Solutions, Robert Clinton, M.D., George Stockwell, M.D. and Wendy
Riebe, HSA to Pl.’s Verified Compl. (ECF No. 61).
On December 5, 2016, Mr. Gladu filed an amended complaint in which he
added Susan Carr and the Maine Department of Corrections as Defendants
(collectively DOC), alleging that the Defendants violated the Rehabilitation Act, Title
III of the Americans with Disabilities Act, and analogous claims under the Maine
Human Rights Act. First Am. Compl. (ECF No. 251). On January 3, 2017, DOC filed
a motion for summary judgment together with a statement of material facts in
support of the motion. Mot. for Summ. J. (ECF No. 261); Statement of Material Facts
(ECF No. 262) (DOC Mot.). On January 4, 2017, the CCS moved for summary
judgment. Defs. Correct Care Solutions, Robert Clinton, M.D., George Stockwell, D.O.
and Wendy Riebe’s Mot. for Summ. J. (ECF No. 266) (CCS Mot.). On March 29, 2017,
Mr. Gladu filed responses to the motions for summary judgment, Pl.’s Br. in Resp. to
Defs.’ Mots. for Summ. J. (ECF No. 341) (Gladu Opp’n), and a statement of disputed
factual issues. Pl.’s Statement of Disputed Factual Issues (ECF No. 342) (PRDSMF).
On April 7, DOC replied. Reply to Opp’n to Mot. for Summ. J. (ECF No. 353) (DOC
Reply). On April 12, 2017, CCS replied and filed a reply to Mr. Gladu’s statement of
facts. Defs. Correct Care Solutions, Robert Clinton, M.D., George Stockwell, D.O., and
Wendy Riebe’s Reply to Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (ECF No. 358) (CCS
Reply); Defs. Correct Care Solutions, Robert Clinton, M.D., George Stockwell, D.O.

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and Wendy Riebe’s Consolidated Statement of Material Facts (ECF No. 357)
(DRPSMF).
On December 18, 2017, the Magistrate Judge issued a recommended decision
in which he recommended that the Court grant CCS’s and DOC’s motions for
summary judgment and he granted in part and denied in part a number of then
pending motions. Recommended Decision of Defs.’ Mots. for Summ. J. and Order on
Pl.’s Record-Related Mots. (ECF No. 512) (Recommended Decision). On January 2,
2018, Mr. Gladu objected to the recommended decision.

Pl.’s Objection to

Recommended Decision (ECF No. 520) (Gladu Obj.). On January 5, 2018, Mr. Gladu
filed a notice to the effect that he was objecting to the Magistrate Judge’s
recommended decision “in whole, even though Plaintiff only responded to specific
portions.” Additional Attach. (ECF No. 521). On January 16, 2018, CCS responded
to Mr. Gladu’s objection. Defs.’ Correct Care Solutions, Robert Clinton, M.D., George
Stockwell, D.O., and Wendy Riebe’s Resp. to Pl.’s Obj. to Report and Recommended
Decision (ECF No. 525) (CCS Resp. to Gladu Obj.). DOC did not respond to Mr.
Gladu’s objection to the recommended decision.
II.

THE PARTIES’ POSITIONS
A.

CCS’s Motion for Summary Judgment

CCS framed its motion for summary judgment as testing whether an inmate
has the constitutional right to direct his own care against the professional judgment
of his medical providers. CCS Mot. at 1-20. Despite the fact that Mr. Gladu believes
he has a serious medical condition, CCS maintains that he does not have the

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constitutional right to control his own medical treatment and that CCS is entitled to
summary judgment. Id.
B.

DOC’s Motion for Summary Judgment

As DOC sees it, the focus of Mr. Gladu’s complaint against DOC is that it failed
and refused to issue him a second mattress to alleviate pain in both hips. DOC Mot.
at 1-5. DOC contends that it has acted in accordance with its policies in issuing Mr.
Gladu one mattress and in following the advice from its medical providers in denying
Mr. Gladu a second one. Id.
C.

Nicholas Gladu’s Opposition

Nicholas Gladu opposes the motions for summary judgment. Gladu Opp’n at
1-29. Mr. Gladu states that he was examined by an orthopedic surgeon and was
thought to suffer from “possible bilateral trochanteric bursitis with rule out
differential diagnosis sought for osteonecrosis by undergoing a recommended MRI.”
Id. at 2. However, Mr. Gladu says that the recommended MRI was denied by the
Defendants and the “differential diagnosis was never ruled out.” Id. Mr. Gladu says
that his “pain and systemic symptoms have persistently worsened and he has not
received adequate medical treatment.” Id.
III.

THE RECOMMENDED DECISION
The Magistrate Judge framed the issue as follows:
Plaintiff Nicholas Gladu alleges that Defendants have acted with
deliberate indifference to his serious medical needs, discriminated
against him on the basis of disability, retaliated against him for
engaging in conduct protected under the First Amendment, and
breached duties owed to him under Maine law.

Recommended Decision at 1.
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Regarding CCS’s motion for summary judgment, the Magistrate Judge set
forth the undisputed material facts.

Id. at 4-15. Turning to DOC’s motion for

summary judgment, the Magistrate Judge then set forth the undisputed facts in that
motion. Id. at 15-16. The Magistrate Judge also reviewed Mr. Gladu’s statements.
Id. at 16-18.
The Magistrate Judge then turned to the legal standards to make out a case
for a deliberate indifference claim under § 1983. Id. at 20-22. Applying the law to
the undisputed facts, the Magistrate Judge concluded that “the record fails to reveal
an objectively serious, undiagnosed medical condition that poses a serious risk of
harm to Plaintiff’s health.” Id. at 22. The Magistrate Judge drew this conclusion
despite Mr. Gladu’s “concerns that he might suffer from a number of serious,
potentially life-threatening diseases that have not been diagnosed.”

Id.

The

Magistrate Judge wrote that the “record lacks any admissible evidence that would
support such a finding.” Id. The Magistrate Judge also rejected Mr. Gladu’s claims
about his need for an MRI and a second mattress, noting that the law does not
consider a medical decision not to order a diagnostic test cruel and unusual
punishment and that the same rule applies to the second mattress. Id. at 22-23.
The Magistrate Judge then addressed Mr. Gladu’s disability discrimination
claims. Id. at 23-24. The Magistrate Judge concluded that Mr. Gladu’s complaints
about “the quality of the treatment do not support a disability discrimination claim.”
Id. at 24.

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Under the retaliation rubric, the Magistrate Judge analyzed Mr. Gladu’s claim
for a second mattress. Id. at 25-26. Mr. Gladu claimed that the refusal to issue a
second mattress was based on his grievance activity and his filing a complaint with
the medical board. Id. at 25. After reviewing the record, the Magistrate Judge
concluded that it lacked “any evidence that would support the conclusion that the
refusal to provide a double mattress was retaliatory in any way.” Id. In addition to
concluding that the retaliation claims against Dr. Clinton were unfounded, the
Magistrate Judge determined that the retaliation claims against Nurse Riebe were
“frivolous.” Id. at 25-26.
The Magistrate Judge next analyzed Mr. Gladu’s malpractice and breach of
contract claims against CCS only. Id. at 27-28. The Magistrate Judge determined
that Mr. Gladu’s malpractice and breach of contract claims required expert testimony
and that Mr. Gladu had failed to supply any expert testimony to sustain his claim.
Id. at 28. The Magistrate Judge concluded that for that reason, the malpractice and
breach of contract claims failed. Id.
Finally, the Magistrate Judge turned to the second mattress claim against the
DOC. Id. at 28-29. The Magistrate Judge quickly disposed of that claim because the
DOC relied on medical advice in denying the second mattress and therefore, Mr.
Gladu could not demonstrate deliberate indifference. Id. at 29.
IV.

THE OBJECTION AND RESPONSE
A.

Nicholas Gladu’s Objection
1.

The Magistrate Judge’s CCS Disability Ruling

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Although Mr. Gladu objects to the Magistrate Judge’s entire decision, in his
filed objection, Mr. Gladu expressly objected to the Magistrate Judge’s finding that
he does not suffer from a serious medical condition. Gladu Obj. at 2. Mr. Gladu
states that he “has provided numerous declarations from himself and disinterested
prisoners and put forth several radiology reports and recommendations of
specialists.” Id. at 2. He says that he “suffers from chronic and often severe hip and
back pain.” Id. He quotes a Seventh Circuit case, Hayes v. Snyder, 546 F.3d 516, 523
(7th Cir. 2005), which he contends stands for the principle that a prisoner may
proceed with a § 1983 action based on subjective complaints alone. Id. He also points
to radiology reports that he argues demonstrate that he suffers from “an objectively
serious medical condition.” Id. at 2. He complains that the Magistrate Judge “made
no mention of[ ] ‘moderate degenerative changes of the spine” observed on x-ray. Id.
In addition, Mr. Gladu alludes to another x-ray report, which he maintains CCS had
denied the existence of, and charges that CCS has made a “material
misrepresentation” thereby barring summary judgment. Id. at 2-3. Mr. Gladu also
objects to the failure of the Magistrate Judge to mention his claim that CCS denied
and delayed access to medical treatment. Id. Mr. Gladu accuses the Magistrate
Judge of ignoring his sworn affidavits and favoring the sworn affidavits of CCS
personnel and of considering inadmissible hearsay. Id. at 4. Mr. Gladu points out
that he has sought to be examined by an independent medical examiner and this
request has been denied. Id. at 5. Quoting Spann v. Roper, 453 F.3d 1007 (8th Cir.

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2006), Mr. Gladu characterizes the absence of an independent medical examiner as
“incongruous.” Id.

2.

The Magistrate Judge’s DOC Ruling

Mr. Gladu also objects to the Magistrate Judge’s DOC ruling. Id. at 5-6. He
contends that his “chronic and often severe back and hip pain routinely interfere
significantly with many major life activities.” Id. at 5. Mr. Gladu objects to the
Magistrate Judge’s reliance on the “Plaintiff’s arguments,” rather than the entire
record. Id.
3.

The Magistrate Judge’s CCS Retaliation Ruling

Regarding the Magistrate Judge’s recommended decision on the retaliation
claim, Mr. Gladu objects on the ground that the Magistrate Judge relied “entirely on
hearsay evidence which would not be admissible at trial in the analysis of Plaintiff’s
claim of retaliation with respect to a double mattress.” Id. at 6. He claims CCS
provided affidavits of individuals without any personal knowledge. Id.
Regarding his retaliation claim against Wendy Riebe, Mr. Gladu objects on the
ground that the Magistrate Judge erroneously concluded that he was not subject to
any materially adverse consequences from the Riebe write-up.

Id.

In fact, he

contends that he was “sanctioned with a level loss, which resulted in an extended
period of restrictions on earned privileges and personal property.” Id.
4.

The Magistrate Judge’s Malpractice and Breach of
Contract Ruling
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Mr. Gladu objects to the Magistrate Judge’s malpractice and breach of contract
ruling on the ground that he attempted to introduce medical treatises to establish the
current standard of care, but the Magistrate Judge denied that request. Id. He also
notes that he requested an independent medical examiner “on multiple occasions”,
but the Magistrate Judge denied the requests. Id. at 7.
5.

The Magistrate Judge’s DOC Ruling

Mr. Gladu maintains his objection to the recommendation to grant summary
judgment to the DOC because he argues that the record “does support claims for
deliberate indifference and disability discrimination.” Id. at 7. He contends that the
DOC received a recommendation from an expert and “failed to heed any of those
specialist recommendations.” Id. at 8.
B.

CCS Response to Nicholas Gladu’s Objections

First, CCS asserts that Mr. Gladu has waived his right to object to those
portions of the recommended decision to which he did not object. CCS Resp. to Gladu
Obj. at 2.
Next, CCS turns to Mr. Gladu’s Eighth Amendment claim and recites the
deliberate indifference standard. Id. (citing Estelle v. Gamble, 429 U.S. 97, 105-06
(1994)). CCS then contends that the Magistrate Judge properly found that Mr. Gladu
had failed to allege facts sufficient to meet this standard. Id. at 3-5. CCS points out
that the Magistrate Judge discussed Mr. Gladu’s contention that he suffers from
Cushing Syndrome and that he properly determined that such a diagnosis was the
subject of medical opinion and is not a fact not subject to reasonable dispute under

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Federal Rule of Evidence 201. Id. at 6, 19-20. CCS also contends that although Mr.
Gladu suffers from bilateral trochanteric bursitis, he is able to function well despite
this condition. Id. at 6. CCS observes that even though Mr. Gladu maintains that
his x-rays show an objectively serious degenerative spinal condition, he “has
presented no expert opinion to support this contention.” Id. CCS also rejects Mr.
Gladu’s argument that CCS has delayed and denied treatment. Id. at 7.
CCS disputes Mr. Gladu’s contention that the Magistrate Judge relied on
hearsay evidence to support his decision. Id. at 9. Instead, CCS argues, the evidence,
such as Dr. Clinton’s understanding of the sleep log, is properly considered not for
the truth of the matter, but for Dr. Clinton’s explanation for the basis of his diagnosis.
Id. at 9. CCS rejects Mr. Gladu’s complaints about the rejection of his requests for
an independent medical examination on the ground that the Court “does not have an
obligation to provide a medical expert for the Plaintiff.” Id. Even if Mr. Gladu does
suffer from a serious medical condition, CCS argues that it has been conscientious
and consistent in its treatment of Mr. Gladu, and therefore he has failed to
demonstrate that CCS has been deliberately indifferent to his care. Id. at 9-10.
Regarding his disability claim against CCS, CCS says that a disagreement over
how to treat a disabling medical condition does not constitute discrimination based
on that disability. Id. at 11 (citing Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 284
(1st Cir. 2006); Flood v. Me. Dep’t of Corr., No. 1:11-cv-270, 2012 U.S. Dist. LEXIS
158649, at 85-86 (D. Me. Aug. 24, 2012)). CCS also observes that it argued that its
provision of medical care to inmates at the Maine Department of Corrections is not a

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public accommodation within the meaning of the ADA because state corrections
facilities are not open to members of the general public. Id. at 11-12.
Turning to the Rehabilitation Act, CCS argues that the Act does not apply to
it because it is not a recipient of federal funding. Id. at 12-13.
Regarding the retaliation claims against Dr. Stockwell and Dr. Clinton, CCS
notes that Mr. Gladu alleges that the doctors retaliated against him by refusing to
authorize a second mattress because he filed a Board of Medicine complaint against
them, but that the Magistrate Judge concluded there was no evidence to support Mr.
Gladu’s allegation. Id. at 13-14. Mr. Gladu’s main objection was that in his view, the
Magistrate Judge considered hearsay evidence in arriving at this conclusion, but as
CCS observes, there is an exception to the rules against hearsay evidence if the
statements were made for the purpose of medical diagnosis or treatment. Id. at 1415 (citing FED. R. EVID. 803(4)).
CCS then turns to Mr. Gladu’s objection to the Magistrate Judge’s conclusion
as regards his retaliation claim against Wendy Riebe. Id. at 15. Even though CCS
agrees that Mr. Gladu’s filing of a grievance can be protected activity, CCS contends
that Mr. Gladu produced no evidence that his particular grievance was protected
activity or that Nurse Riebe was substantially motivated by his grievance in denying
his claim. Id. at 16-17.
Regarding the medical malpractice claim, CCS agreed with the Magistrate
Judge that Mr. Gladu was required to produce some expert evidence that it deviated
from the proper standard of care and its failure produced an injury. Id. at 17-18.

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V.

DISCUSSION
Under 28 U.S.C. § 636(b)(1)(C), a district judge must perform a de novo review

of “those portions of the report or specified proposed findings or recommendation to
which objection has been made.” See FED. R. CIV. P. 72(b)(3). The Court has reviewed
the Magistrate Judge’s recommended decision, Mr. Gladu’s objections, CCS’s
response, and the entire record de novo. For the reasons set forth in the Magistrate
Judge’s recommended decision and further addressed in this Order, the Court affirms
the recommended decision and grants summary judgment in favor of CCS and DOC
and against Nicholas Gladu. The Court addresses some of Mr. Gladu’s specific legal
objections.
A.

Hayes v. Snyder

Mr. Gladu cites a Seventh Circuit case, Hayes v. Snyder, for the proposition
that subjective complaints from a prisoner are alone sufficient to state a claim under
the Eighth Amendment for cruel and unusual treatment. Gladu Obj. at 2. First, the
Seventh Circuit concluded in Hayes, that “non-medical officials are entitled to defer
to the professional judgment of the facility’s medical officials on questions of
prisoners’ medical care. . . .” Hayes, 546 F.3d at 527; see Grant v. Me. Dep’t of Corr.,
No. 1:11-cv-00176-JAW, 2011 U.S. Dist. LEXIS 133395, at *9 (D. Me. Nov. 16, 2011),
aff’d 2011 U.S. Dist. LEXIS 148452 (Dec. 27, 2011). The only exception is if the
nonmedical personnel have “reason to believe (or actual knowledge) that prison

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doctors or their assistants are mistreating (or not treating) a prisoner.” Cashner v.
Widup, No. 17-1079, 2017 U.S. App. LEXIS 24191, at *11-12 (7th Cir. Nov. 30, 2017)
(quoting Hayes, 546 F.3d at 527). As there is no evidence in this record that the
nonmedical personnel knew or had reason to believe that Mr. Gladu was being
mistreated or not treated at all, the Hayes case reinforces the Magistrate Judge’s
conclusion that the DOC personnel properly relied upon medical personnel in dealing
with Mr. Gladu’s complaints and DOC is entitled to summary judgment.

See

Recommended Decision at 28-29.
Mr. Gladu is correct that the Seventh Circuit concluded on the facts of Hayes
that the inmate’s subjective complaints were sufficient to allow him to proceed to
trial. Hayes, 546 F.3d at 518. However, in Hayes, the inmate suffered from a
condition called Peyronie’s disease that the Seventh Circuit described as “a
connective tissue disorder involving the growth of fibrous scar tissue in the soft tissue
of the penis. The hardened scar tissue prevents the normal tissue from moving where
it otherwise would in a healthy organ, and this causes an abnormal (and often
painful) curvature of the penis.” Id. at 521. The inmate in Hayes complained that
his testicles swelled abnormally and he found it extremely painful just to urinate. Id.
at 519. Unlike Mr. Gladu’s case, there was no question as to the inmate’s ultimate
diagnosis, its severity, and the need for a referral to a urologist. Id. The Hayes Court
concluded that an objectively serious medical condition is one that “has been
diagnosed by a physician as mandating treatment or one that is so obvious that even
a lay person would perceive the need for a doctor’s attention.” Id. at 522.

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Here, the facts are markedly different. In Mr. Gladu’s case, Dr. Clinton and
Dr. Stockwell have repeatedly seen Mr. Gladu and have arrived at a series of
diagnoses for his complaints, namely bilateral trochanteric bursitis in his hips,
folliculitis on his arms, and dry and itchy feet (occasionally athlete’s foot).
Recommended Decision at 7. They have prescribed a range of treatment, including a
trial of pain relievers, exercises, prolotherapy injections, tropical cream, and special
medical shoes as well as encouraging Mr. Gladu to participate in yoga. Id. at 6. Dr.
Clinton also ordered a sleep log to be kept on Mr. Gladu to determine the extent to
which his inability to sleep could be corroborated. Id. at 8.
Unlike in Hayes, CCS did refer Mr. Gladu for an orthopaedic consultation to
determine whether he would be a candidate for iliotibial band surgery.

Id.

Significantly, Dr. Wayne Piers, the orthopaedic surgeon, concurred with the diagnosis
of trochanteric bursitis and decided that no surgery was warranted. Id. Dr. Piers
recommended physical therapy, a double mattress, and an egg crate mattress, and
suggested that an MRI might be warranted in the future. Id. However, when Dr.
Clinton talked to Dr. Piers, the orthopaedic surgeon agreed that neither a double
mattress nor an egg crate mattress was medically necessary to treat Mr. Gladu’s
condition. Id. at 9.
In short, Mr. Gladu presents a case where the doctors, including the specialist,
agree on his primary diagnosis, that is, bilateral trochanteric bursitis, and agree
generally on the proper treatment. For his own reasons, Mr. Gladu simply disagrees
with the medical professionals and worries that he has medical conditions no medical

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professional has diagnosed. Although he is focused on his perceived need for an MRI
scan, there is no evidence in this record that Dr. Piers actually ordered an MRI scan,
only that Dr. Piers suggested an MRI might be appropriate at some date in the future.
In these circumstances, the evidence establishes that, unlike Hayes, the CCS medical
professionals have been attentive to Mr. Gladu, have arrived at a diagnosis that has
been confirmed by an outside specialist, and have generally agreed on the proper
treatment. Mr. Gladu has failed on this record to demonstrate deliberate indifference
on the part of CCS.
B.

Spann v. Roper

Mr. Gladu quotes the Eighth Circuit Court of Appeals in Spann v. Roper for
the observation that it found “incongruous” that a trial court denied a motion for an
expert witness and then granted summary judgment on the ground that the inmate
had failed to prove causation. Gladu Obj. at 5 (quoting Spann, 453 F.3d at 1009).
Again, however, Spann is very different on its facts. In Spann, a prison nurse
mistakenly gave an inmate seven to ten psychotropic pills prescribed for a different
prisoner, and despite the prisoner’s objection, ordered him to take them. 453 F.3d at
1008. When she discovered her mistake, the nurse failed to alert anyone or obtain
medical treatment for the inmate. Id. The inmate collapsed in his cell and, despite
pushing the emergency button, laid unconscious on his cell floor for three hours. Id.
The inmate had a series of symptoms, like cold sweats, severe headache, vision
problems and shaking, following the incident. Id.

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The Spann trial court granted summary judgment in part on the ground that
the inmate failed to demonstrate a causal relationship between the three-hour delay
while he was unconscious on the cell floor and his later symptoms. Id. The Eighth
Circuit found it incongruous that the trial court denied the motion for an expert
witness and granted summary judgment in part on the ground that the inmate had
failed to produce an expert to testify on causation. Id. at 1009. It is correct that there
is a facial similarity between Spann and this case in that the trial court has denied
the inmate a request for an independent expert and then used the absence of an
expert to rule against the inmate.

But the facial similarity disappears upon

examination.
Here, three physicians have examined Mr. Gladu, and each agrees with the
other as to the correct diagnosis and each disagrees with him. What Mr. Gladu is
really objecting to is the Magistrate Judge’s repeated decisions not to order an
independent medical examination. See Orders (ECF Nos. 414, 364, 309, 218, 147).
As the Magistrate Judge explained in his July 8, 2016 order, appointment of an expert
in the context of in forma pauperis litigation is “the exception rather than the rule”
and results in “considerable expense that would otherwise be imposed on
governmental defendants due to the volume of such cases.” Order on Pending Mots.
at 5 (ECF No. 147). The Magistrate Judge found no “extraordinary or compelling
circumstances” justifying an order under Federal Rule of Evidence 706. Id. at 5-6.
But unlike Spann, where the nurse had been clearly negligent and the causal link
between her negligence and his injuries appeared obvious, the only basis for ordering

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an independent medical evaluation of Mr. Gladu would have to be to suppose that
Mr. Gladu is correct in his assessment of his own medical condition, even though the
three doctors who have examined him have come to a different conclusion. Spann
does not apply to the facts in this case.
C.

Federal Rule of Evidence 803(4)

Regarding Mr. Gladu’s objection to the Magistrate Judge’s consideration of
hearsay evidence, the Defendants are correct that Federal Rule of Evidence 803(4)
allows a medical expert to testify about statements “made for—and is reasonably
pertinent to—medical diagnosis or treatment,” FED. R. EVID. 803(4)(A), and
“describe[] medical history; past or present symptoms or sensations; their inception;
or their general cause.” Id. 803(4)(B); see Bucci v. Essex Ins. Co., 393 F.3d 285, 298
(1st Cir. 2005) (“There is no requirement, either in the text of the Rule, or the case
law, that the speaker be the patient himself”); Danaipour v. McLarey, 386 F.3d 289,
296-98 (1st Cir. 2004) (“The 803(4)exception does not require that the speaker be the
patient or that the listener be the doctor . . . the declarant’s motive to promote
treatment or diagnosis is the factor crucial to reliability”).
Furthermore, many of the statements about the sleep log are not hearsay at
all, because they do not contain an out of court assertion, or are offered for a nonhearsay purpose. It is only the results or contents of the sleep log that implicate the
hearsay prohibition. In contrast to the results or contents, it is not hearsay for Dr.
Clinton is to describe his own efforts to have MDOC create a sleep log, and that
evidence of Dr. Clinton’s efforts is relevant to refute Mr. Gladu’s charges of deliberate

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indifference and medical malpractice. Similarly, even if the results of Mr. Gladu’s
sleep log were not admissible under the medical treatment exception, the results are
still admissible for non-hearsay purposes like explaining the effect on the reader, in
this case Dr. Clinton.

The evidence about the sleep log content is relevant

predominantly for non-hearsay purposes because it explains Dr. Clinton’s reaction
and further medical decisions afterward, rather than for the hearsay purpose of the
truth of Mr. Gladu’s actual sleep patterns.
In short, most of the evidence about the sleep log and the purposes for which
that evidence was introduced does not implicate the hearsay prohibition at all, and
the portion that does qualify as hearsay falls within an exception.
D.

Summary

The Court has selected three legal points among Mr. Gladu’s numerous
objections to discuss in detail. The remaining objections do not merit discussion. The
record here reflects that CCS personnel have been conscientious and appropriate in
their care and treatment of Mr. Gladu and have been anything but deliberately
indifferent. The decisions of neither the legal nor medical professions can be driven
by someone convinced he is right against all evidence to the contrary.
VI.

CONCLUSION
Having performed a de novo review, the Court AFFIRMS the Magistrate

Judge’s recommended decision (ECF No. 512) and OVERRULES Nicholas A. Gladu’s
objections (ECF No. 520) for the reasons set forth in the Magistrate Judge’s
recommended decision and in this order. The Court GRANTS Defendants Maine

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Department of Corrections and Susan Carr’s Motion for Summary Judgment (ECF
No. 261). The Court GRANTS Defendants Correct Care Solutions, Robert Clinton,
M.D., George Stockwell, D.O., and Wendy Riebe’s Motion for Summary Judgment
(ECF No. 266). The Court ORDERS judgment to issue in favor of the Defendants and
against the Plaintiff.
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 14th day of February, 2018

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