GLADU v. CORRECT CARE SOLUTIONS

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

NICHOLAS A. GLADU, )

)

Plaintiff, )

)

v. ) 2:15-cv-00384-JAW

)

CORRECT CARE SOLUTIONS, et al., )

)

Defendants. )

ORDER ON MOTION TO VACATE JUDGMENT

A prisoner in Maine custody seeks to vacate a judgment against him more than

a year after it entered based on newly discovered information related to his medical

diagnoses. Because he did not file his motion within one year of judgment entering

and because he has not demonstrated extraordinary circumstances entitling him to

relief under the catch-all provision of Federal Rule of Civil Procedure 60(b)(6), the

Court denies his motion.

I. BACKGROUND

On July 27, 2016, Nicholas Gladu filed an amended complaint against Correct

Care Solutions, Robert Clinton, M.D., George Stockwell, D.O., Wendy Riebe, R.N., the

Maine Department of Corrections, and Susan Carr. First Am. Compl. (ECF No. 251).1

On January 3, 2017, the Maine Department of Corrections and Susan Carr moved for

1 Though the docket reflects that this Amended Complaint was not docketed until December 5,

2016, the prison mailbox rule controls the date of filing of incarcerated individuals’ filings under 42

U.S.C. § 1983. See Casanova v. Dubois, 304 F.3d 75, 79 (1st Cir. 2002) (holding “that the mailbox rule

shall govern the determination of when a prisoner's § 1983 filing has been completed”). Mr. Gladu’s

Amended Complaint includes a declaration from Mr. Gladu that he placed his Amended Complaint in

the prison mail system on July 27, 2016. First Am. Compl., Attach. 1 at 34.

summary judgment. Mot. for Summ. J. (ECF No. 261). On January 4, 2017, Correct

Care Solutions, Robert Clinton, M.D., George Stockwell, D.O., and Wendy Riebe, R.N.

(collectively 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). Mr. Gladu responded to both motions for summary judgment on March 22,

2017. Pl.’s Br. in Resp. to Defs.’ Mots. For Summ. J. (ECF No. 341).2 On December

18, 2017, the Magistrate Judge issued a report and recommended decision

recommending a grant of summary judgment for all Defendants and against Mr.

Gladu. Recommended Decision on Defs.’ Mots. for Summ. J. and Order on Pl.’s

Record-Related Mots. (ECF No. 512).

On December 28, 2017, Mr. Gladu objected to the Magistrate Judge’s

Recommended Decision. Pl.’s Obj. to Report and Recommended Decision (ECF No.

520). 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). On February 14,

2018, this Court affirmed the recommended decision of the Magistrate Judge and

issued a judgment granting both motions for summary judgment. Order Affirming

the Recommended Decision of the Magistrate Judge (ECF No. 541) (Order). On

February 15, 2018, the Clerk of Court entered judgment in favor of all the Defendants

and against the Plaintiff’s Complaint. J. (ECF No. 542). On February 18, 2018, Mr.

2 Mr. Gladu’s response does not include a declaration regarding when it was mailed. However,

Mr. Gladu signed his response on March 22, 2017, id. at 29, and the Court adopts that date as the date

of filing. For purposes of this order, the Court applies this logic to further filings by Mr. Gladu that do

not include declarations regarding when he placed them in the prison mailing system.

Gladu appealed the judgment to the Court of Appeals for the First Circuit, Notice of

Appeal (ECF No. 545), and on February 23, 2018, he filed a second notice of appeal to

the First Circuit. Notice of Appeal (ECF No. 549).

On August 9, 2019, Mr. Gladu filed a motion to vacate judgment in this Court.

Mot. to Vacate J. (ECF No. 563) (Pl.’s Mot.). On August 30, 2019, the First Circuit

issued its judgment, affirming the Court’s grant of summary judgment to the

Defendants. J. of Ct. of Appeals for the First Circuit (ECF No. 566). On September

20, 2019, the First Circuit issued its mandate, returning jurisdiction to this Court.

Mandate (ECF No. 568); Mandate (ECF No. 569). On November 5, 2019, CCS

responded to Mr. Gladu’s motion to vacate judgment. Defs. Correct Care Solutions,

Robert Clinton, M.D., George Stockwell, D.O. and Wendy Riebe’s Obj. to Pl.’s Mot. to

Vacate J. (ECF No. 571) (Defs.’ Obj.).

II. PARTIES’ POSITIONS

A. Nicholas Gladu’s Motion to Vacate Judgment

Mr. Gladu moves the Court to vacate judgment against him under Federal

Rule of Civil Procedure 60(b)(2), (3), and (6). Pl.’s Mot. at 1. Mr. Gladu states that

“[t]hroughout the course of litigation in [this] matter, [he] sought various diagnostic

medical testing and consultation with medical specialists, for what [he] contended to

be a[n] undiagnosed underlying serious medical condition,” though CCS argued such

testing was unnecessary. Id. He states that “[s]hortly after final judgment in this

matter, the Maine Board of Licensure in Medicine began an inquest into [his] medical

care and treatment by Defendant Dr. Clinton” which made clear that some of the

diagnostic tests he sought “were in fact actually medically necessary.” Id. Because

of this, “Dr. Clinton performed follow-up testing of [his] phosphorus and Vitamin D

25OH levels and made subsequent referrals to disease specialists based in part on

those results.” Id. This “follow-up revealed continued hyperphosphatemia.” Id. at 2.

Mr. Gladu notes that throughout this litigation, his “other lab results showed

recurrent hematuria and proteinuria” which “herald chronic kidney disease

collectively.” Id.

Mr. Gladu states that “[o]n August 28, 2018, Defendant Dr. Clinton referred

[him] to urology for consultation of recurrent hematuria.” Id. On “October 31, 2018,

[Mr. Gladu] was seen by a urologist who[] was confused why [he] had been sent to

urology at all and immediately recommended that [he] be evaluated by a

nephrologist.” Id. Dr. Clinton approved Mr. Gladu’s referral to a nephrologist days

later, and on April 12, 2019, Mr. Gladu “was finally sent to nephrology for

consultation.” Id. Mr. Gladu insinuates that this delay was the result of an effort to

prevent him from presenting “new evidence to the Court for a motion such as this.”

Id.

Mr. Gladu states that on June 19, 2019, he underwent testing requested by his

nephrologist, and on July 24, 2019, he was informed that his nephrologist had

“diagnosed [him] with chronic kidney disease and intended to continue workup of

[his] fluid imbalance issues (hypernatremia and hyper[osmolar]ity).” Id. Mr. Gladu

asserts that “Chronic Kidney Disease is unquestionably a serious medical need as

contemplated under the Eighth Amendment,” as it can cause “bone miner[]alization

disorders and/or secondary hyperparathyroidism[, b]oth of which cause protracted

bone pain similar to those complaints by [Mr. Gladu] since the onset of this case.” Id.

at 3.

Mr. Gladu alleges “[u]pon information and belief” that CCS “intentionally

delayed [his] nephrology consultation until after the 1 year deadline for [him] to

introduce new evidence in this matter, as [it] knew or reasonably should have known,

that [his] const[e]llation of symptoms and labwork abnormalities would result in a

diagnosis of chronic kidney disease and other serious disorders . . ..” Id. He states

that “Rule 60(b)(6) expressly authorizes the Court to vacate judgment for ‘any other

reason justifying relief from the operation of the judgment’” and that his “unique

circumstances (as a prisoner who[] cannot otherwise seek necessary medical

diagnostic testing or consultation by a specialist) need be strongly considered as to

whether good cause exists for [him] to present new evidence following the 1 year mark

from final judgment.” Id.

B. CCS’ Response

CCS makes three arguments why the Court should deny Mr. Gladu’s Motion

to Vacate Judgment. First, CCS argues that the Court “lacks the authority to amend

its judgment once i[t] has been affirmed on appeal.” Defs.’ Obj. at 2 (citing Elias v.

Ford Motor Co., 734 F.2d 463, 465 (1st Cir. 1984)). CCS says “[t]he mandate rule . . .

does not divest the district court of the authority to address issues on which the

appellate court has not expressly or implicitly ruled.” Id. at 3 (citing Diaz v. Jiten

Hotel Mgmt., 741 F.3d 170, 175 (1st Cir. 2013)). However, “whatever was before the

appellate court and disposed of by the decree is considered as finally settled and

becomes the law of the case.” Id. (quoting McMahan Jets, LLC v. X-Air Flight

Support, LLC, No. 2:10CV175KS-MTP, 2012 WL 5606635, at *2 (S.D. Miss. Nov. 15,

2012)). CCS argues “the First Circuit considered de novo the record on appeal and

affirmed the entry of summary judgment.” Id. It states the First Circuit also “had

before it Mr. Gladu’s Motion to Vacate the judgment, and the medical records he

claims supported that request.” Id. CCS asserts that “[t]he First Circuit considered

that filing as a request to supplement the evidence, which it denied,” and therefore,

in CCS’ view, the Court may not revisit Mr. Gladu’s Motion to Vacate Judgment. Id.

at 3-4.

Second, CCS argues that “even if this Court was not bound by the First

Circuit’s mandate, [Mr. Gladu’s] Motion to Vacate pursuant to Rule 60(b)(2), (3) is

untimely,” as “[a] motion for relief under Rule 60(b) brought on grounds of newly

discovered evidence or fraud must be brought ‘no more than a year after the entry of

the judgment or order or the date of the proceeding.’” Id. at 4 (quoting FED. R. CIV.

P. 60(c)). CCS points out that judgment entered for the Defendants in this case on

February 15, 2018, more than a year before Mr. Gladu filed his Motion to Vacate

Judgment. Id. Additionally, with regard to Mr. Gladu’s request for relief under Rule

60(b)(6), CCS asserts that “Rule 60(b)’s catchall provision cannot be used to skirt the

timeframes established with respect to relief on the grounds of newly discovered

evidence or fraud under 60(b)(1) and (3).” Id.

Third, CCS states that “[a]ssuming arguendo that [Mr. Gladu’s] Rule 60(b)(6)

filing is not time barred, his motion nevertheless fails because he has not met his

heavy burden.” Id. at 5. According to CCS, Mr. Gladu does not meet his burden

because his motion is not timely, he has not established exceptional circumstances or

that he can mount a meritorious claim based on his conclusory assertions about being

prevented from receiving timely treatment, his allegations do not support a claim for

deliberate indifference, and he is already relitigating claims in a separate case. Id.

at 6.

III. LEGAL STANDARD

Rule 60(b) provides that, “on motion and on such terms as are just, a district

court may relieve a party from a final judgment.” Ungar v. Palestine Liberation Org.,

599 F.3d 79, 83 (1st Cir. 2010) (citing FED. R. CIV. P. 60(b)). The specific grounds for

relief under Rule 60 are grouped into six subsections, three of which are relevant

here. Rule 60(b)(2) allows the Court to relieve a party from final judgment where

there is “newly discovered evidence that, with reasonable diligence, could not have

been discovered in time to move for a new trial under Rule 59(b) . . ..” Rule 60(b)(3)

allows relief from final judgment where there is “fraud (whether previously called

intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party . . ..”

Rule 60(b)(6) is a catch-all provision that authorizes the district court to grant relief

from judgment for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6).

Additionally, Rule 60(c)(1) states that “[a] motion under Rule 60(b) must be made

within a reasonable time—and for reasons (1), (2), and (3) no more than a year after

the entry of the judgment or order or the date of the proceeding.”

“The decision to grant or deny such relief is inherently equitable in nature.”

Ungar, 599 F.3d at 83 (citing United States v. One Star Class Sloop Sailboat, 458

F.3d 16, 25-26 & n.10 (1st Cir. 2006); Teamsters, Chauffeurs, Warehousemen &

Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19-20 (1st Cir.

1992)). “Courts have found few narrowly-defined situations that clearly present

‘other reasons justifying relief.’” 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, &

MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2864 (3d ed. 2012).

IV. DISCUSSION

A. The Authority of this Court to Rule on the Motion

The Court rejects CCS’ assertion that the First Circuit has ruled on Mr.

Gladu’s Motion to Vacate Judgment and therefore the Court may not render a

decision. While it is true that the First Circuit had the Motion to Vacate Judgment

before it, see Clerk’s Second Suppl. Certificate (ECF No. 564), the Court sees no

indication that the First Circuit’s ruling that “Plaintiff’s motion to supplement the

record is denied,” see J. (ECF No. 566), refers to Mr. Gladu’s motion. Rather, it is far

more likely that the appellate court’s ruling is a denial of Mr. Gladu’s July 8, 2019,3

Motion for Material Evidence Be Considered on Appeal. Mot. for Material Evid. Be

Considered on Appeal, Gladu v. Correct Care Solutions, No. 18-1167 (1st Cir. July 8,

3 Mr. Gladu signed this motion on June 30, 2019, which serves as the filing date based on the

prison mailbox rule as discussed above in footnote 2. The Court uses the date the motion was docketed,

July 8, 2019, to clarify where the motion is located on the First Circuit docket.

2019), Document No. 00117460777. In that motion, Mr. Gladu specifically requested

that the First Circuit “consider relevant medical records,” including records related

to the issues raised in his Motion to Vacate Judgment. Id. at 1-2. That motion did

not seek relief from judgment under Rule 60(b); rather it sought to supplement the

record under Federal Rule of Appellate Procedure 10(e). The Court is skeptical that

a First Circuit ruling on a different motion based on a different standard could

foreclose the Court’s ability to evaluate the merits of Mr. Gladu’s Motion to Vacate

Judgment.

In support of this point, CCS cites Elias for the proposition that the Court

“lacks the authority to amend its judgment once i[t] has been affirmed on appeal

. . ..” Defs.’ Obj. at 2. However, “the appellate mandate relates to the record and issues

then before the court, and does not purport to deal with possible later events. Hence

the district judge is not flouting the mandate by acting on [a Rule 60(b)] motion.”

Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18 (1976); see also Puerto Rico

v. SS Zoe Colocotroni, 601 F.2d 39, 41 n.2 (1st Cir. 1979) (stating in dicta that “60(b)

motions [may] be filed in the district court without leave from an appellate court that

earlier affirmed the decision below”).

Elias does not contradict this principle. “[T]he denial of . . . a Rule 60(b) motion

is not encompassed within an earlier-filed appeal of the underlying judgment. It

requires a separately-filed notice of appeal.” Jourjine v. Nokia Corp., 312 Fed. App’x

344, 346 (1st Cir. 2009) (citing cases). Even if not the case, “the mandate rule does

not apply to ‘any issue not expressly or impliedly disposed of on appeal,’” Diaz, 741

F.3d at 175 (quoting Biggins v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir. 1997)),

and the First Circuit did not indicate in its judgment that it has considered the merits

of Mr. Gladu’s Motion to Vacate Judgment and made a final determination on it. The

Court may rule on Mr. Gladu’s Motion to Vacate Judgment.

B. The Rule 60(b) Motion

The Court next addresses resolution of this motion under Rule 60(b)(2) and (3).

Requests for relief under Rule 60(b)(2) and (3) must be made within one year of

judgment entering. FED. R. CIV. P. 60(c)(1). Mr. Gladu is not entitled to relief under

either of these subsections. “[T]he expiration of the one-year period mandated by

[Rule 60] ‘is an absolute bar to relief from judgment.’” Hofland v. Perkins, No. 1:09-

cv-00201-JAW, 2011 WL 2132847, at *1 (D. Me. May 27, 2011) (quoting United States

v. Marin, 720 F.2d 229, 231 (1st Cir. 1983)).

This leaves Mr. Gladu’s request for relief under Rule 60(b)(6). Except in

narrow circumstances, the “rule of mutual exclusivity” operates to preclude a grant

of relief under Rule 60(b)(6) when any of the first five subsections of the Rule could

apply. Simon v. Navon, 116 F.3d 1, 5 (1st Cir. 1997). “While motions for relief under

Rule 60(b)(6) are not subject to a strict time limit, in this circuit a party invoking that

subsection must make a ‘showing of extraordinary circumstances suggesting that the

party is faultless in the delay.’” Roosevelt REO PR II Corp. v. Del Llano-Jiménez, 765

Fed. App’x 459, 461 (1st Cir. 2019) (emphasis omitted) (quoting Dávila-Álvarez v.

Escuela de Medicina Universidad Central Del Caribe, 257 F.3d 58, 67 (1st Cir. 2001)).

Such a showing of extraordinary circumstances is necessary because otherwise Rule

60(b)(6) would swallow the first three subsections of the rule, which are stringently

time-limited. See Simon, 116 F.3d at 5.

Here, based on the timeline Mr. Gladu laid out, the untimeliness of his motion

does not appear faultless. Judgment entered on February 15, 2018, which means

that for Mr. Gladu’s motion to have been timely, he should have filed it by February

15, 2019. By Mr. Gladu’s admission, on that date he knew the following:

(1) that the Maine Board of Licensure in Medicine had conducted an

inquest into his medical care and treatment;

(2) that based on this inquest, Dr. Clinton had performed follow-up

testing and referred him to various experts;

(3) that Dr. Clinton’s follow-up testing revealed hyperphosphatemia;

(4) that Dr. Clinton had referred him to urology for a consultation

based on his recurrent hematuria;

(5) that the urologist recommended he be evaluated by a

nephrologist; and

(6) that Dr. Clinton referred him to a nephrologist shortly thereafter.

See Pl.’s Mot. at 1-2.

Each of these pieces of information—individually and certainly collectively—

provided Mr. Gladu an opportunity to file for relief under Rule 60(b)(2). However,

Mr. Gladu did not file his Motion until almost six months after the February 15, 2019,

deadline. Mr. Gladu’s lack of diligence suggests that his motion does not present

extraordinary circumstances. See Carter v. United States, No. 19-1473, 2019 WL

5963389, at *1 (1st Cir. Sept. 10, 2019) (stating that “lack of diligence in pursuing

Rule 60(b)(6) relief” supported a finding of no extraordinary circumstances).

Turning to Mr. Gladu’s allegations of fraud and deceit by CCS, the Court

regards them as conclusory. Beyond Mr. Gladu’s bare assertion and the fact that his

nephrology consultation did not occur until after the one-year deadline for Rule

60(b)(2) relief (which delay could have happened for any number of reasons), the

Court has no evidence before it to support these claims. The First Circuit has

instructed the Court to ignore such allegations. See Roosevelt REO, 765 Fed. App’x

at 461-62 (citing Teamsters, 953 F.2d at 18).

Furthermore, if Mr. Gladu made similar allegations of fraud in his original

Complaint, he would have been required to “state with particularity the

circumstances constituting fraud . . ..” FED. R. CIV. P. 9(b); United States ex rel. Kelly

v. Novartis Pharm. Corp., 827 F.3d 5 (1st Cir. 2016) (“Conclusory allegations and

references to ‘plans and schemes’ are not sufficient” (quoting Doyle v. Hasbro, Inc.,

103 F.3d 186, 194 (1st Cir. 1996))). The First Circuit has written that Rule 9(b) is

“said to be designed to protect defendants whose reputation could be harmed by

lightly made charges of wrongdoing involving moral turpitude . . ..” McGinty v.

Beranger Volkswagen, Inc., 633 F.2d 226, 229 n.2 (1st Cir. 1980), superseded by

statute on other grounds, Private Securities Litigation Reform Act of 1995, Pub.L. No.

104–67, 109 Stat. 737. In his motion, Mr. Gladu accuses the CCS Defendants of

intentionally delaying his nephrology consult “until after the 1 year deadline for me

to introduce new evidence in this matter,” which he alleges constitutes a “fraud upon

the court.” Pl.’s Mot. at 3. In the Court’s view, this is the type of “lightly made”

charge of “wrongdoing involving moral turpitude” that Rule 9(b) prevents: namely,

that a health care professional would deliberately deprive a patient of necessary

medical treatment to delay his treatment beyond a legal limitations period.

The crux of the problem with Mr. Gladu’s motion is that his difficulties with

CCS have been episodic and ongoing for years. Mr. Gladu filed this lawsuit on

September 23, 2015, and the Complaint alleges events that began on November 16,

2012, over seven years ago. Compl. ¶ 18 (ECF No. 1). The historical pattern has been

that once the Court resolves what is before it, Mr. Gladu has another dispute with

CCS, which then precipitates another set of allegations. Mr. Gladu’s 2015 lawsuit

was subject to multiple orders of this Court and was finally resolved by judgments of

the First Circuit Court of Appeals issued on August 30, 2019. J. of Ct. of Appeals for

the First Circuit (ECF Nos. 565, 566).

Here, for example, Mr. Gladu’s original allegation involved achy joints,

specifically in his hips. Compl. ¶ 18. Mr. Gladu’s August 21, 2019 Rule 60(b) motion

alleges problems with the treatment of a nephrology condition. Pl.’s Mot. at 1-3. If

the Court allowed Mr. Gladu to vacate the judgment on his 2015 Complaint, the

allegations would morph over time into something wholly different than the original

allegations, despite the federal courts having thoroughly litigated the original

allegations through appeal. In short, if Mr. Gladu wishes to press CCS’s treatment

of his new problems, he should file a new lawsuit, not attempt to append his new

complaints to his old dismissed Complaint.4

4 The Court is encouraged that on January 9, 2020, Mr. Gladu moved to voluntarily dismiss

without prejudice his 2017 Complaint against Correct Care Solutions and other Defendants in Gladu

v. Correct Care Solutions, No. 2:17-cv-00504-JAW, which raised similar allegations. Id., Mot. for

Voluntary Dismissal (ECF No. 122). In that motion for voluntary dismissal, Mr. Gladu says that he

“wishes to work with the defendants on his medical issues and complaints informally.” Id. The Court

takes that motion as a hopeful sign that Mr. Gladu and his treatment providers will be able to work

together, and he will not need to resort to federal court in future.

Mr. Gladu has not shown the Court any extraordinary circumstances which

would justify an end-run around the clear one-year time limit imposed by Rule 60(c).

V. CONCLUSION

The Court DENIES Nicholas Gladu’s Motion to Vacate Judgment (ECF No.

563).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 13th day of January, 2020