Gambino v. Hershberger et al

Filing 35

ORDER denying 22 and 28 Motion to Appoint Counsel; denying 29 and 23 Motion to Stay; granting 32 Motion for Leave to File and Motion to Amend;granting in part and denying in part 20 Motion to Seal; granting 19 Motion to Dismiss the Complaint, or in the Alternative, forSummary Judgment. Signed by Judge Theodore D. Chuang on 3/20/2019. (c/m 3/21/19 sp2s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

DAVID A. GAMBINO,
Plaintiff,
Civil Action No. TDC-17-1701
Consolidated with TDC-17 -2311

v.
FRANK HERSHBERGER, et al.,
Defendants.

ORDER
For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED
that:
1. David A. Gambino's Motions for Appointment of Counsel, ECF Nos. 22 and 28, are
DENIED WITHOUT PREJUDICE.
2. Gambino's Motions to Stay, ECF Nos. 23 and 29, are DENIED.
3. Gambino's Motion for Leave to Amend his Response to the Government's Motion to
Dismiss the Complaint, or in the Alternative, for Summary Judgment, ECF No. 32, is
GRANTED. The Court accepts Gambino's Amended Response.
4. The Motion to Seal filed by the United States and Federal Bureau of Prisons ("the
Government"), ECF No. 20, is GRANTED IN PART AND DENIED IN PART. The
Clerk shall SEAL only the Declaration ofTequilla McGahee and its attachments, ECF
No. 19-2, the Declaration of Mohammed Moubarek, M.D. and its attachments, ECF
No. 19-3, and the currently filed version ofthe Government's Memorandum of Law in
Support of its Motion to Dismiss, ECF No. 19-1. Within 7 days of the date of this
Order, the Government shall file a version ofECF No. 19-1 with part II redacted, which
will constitute the public version of that document.
5. The Government's Motion to Dismiss the Complaint, or in the Alternative, for
Summary Judgment, ECF No. 19, is GRANTED.
6. Gambino's Federal Tort Claims Act ("FTCA") claims as they relate to medical
malpractice and medical negligence are DISMISSED WITHOUT PREJUDICE.

7. Gambino's Americans with Disability Act claims, False Claims Act claims, and
Sarbanes-Oxley Act claims are DISMISSED.
8. Summary judgment is GRANTED to the Government on Gambino's Religious
Freedom Restoration Act claim and any Rehabilitation Act claim. The Rehabilitation
Act claim is DISMISSED WITHOUT PREJUDICE.
9. Within 28 days of the date of this Order, the Government shall file an Answer to the
Privacy Act and remaining FTCA claims against it.
10. The Clerk shall SEND a copy of this Order and the accompanying Memorandum
Opinion to Gambino.
By separate order, the Court will identify to Gambino the specific individual Defendants it
deems to be remaining Defendants, and, upon confirmation by Gambino that he continues to seek
to pursue claims against those Defendants, direct service on those Defendants by the United States
Marshal. Those Defendants are required to file an Answer within 21 days of service.

Date: March 20,2019
THEODORE D. CHU .
United States District