The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU, )
)
Plaintiff )
)
v. ) 1:22-cv-00134-JDL
)
MATTHEW MAGNUSSON, et al., )
)
Defendants )
RECOMMENDED DECISION ON MOTION
FOR PRELIMINARY INJUNCTION
Plaintiff, an inmate at the Maine State Prison, alleges Defendants improperly denied
him access to certain materials he ordered through the mail and improperly confiscated
other materials from his cell. Plaintiff contends Defendants’ actions were inconsistent with
the Department of Corrections’ policies, violated his First Amendment rights, and
constitute unlawful discrimination.
Plaintiff moves for a preliminary injunction to order Defendants to permit him to
regain possession of the materials confiscated from his cell. Following a review of the
record and after consideration of Plaintiff’s arguments, I recommend the Court deny
Plaintiff’s motion.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff asserts that he ordered through the mail several adult publications, which
Defendants have withheld from him. (Amended Complaint ¶¶ 10, 15-16, 17, 23, 27, 30-
31, 33, 40, 42, ECF No. 11.)1 Plaintiff alleges he objected to the denial of his access to the
publications, in part, by showing an officer similar material that Defendants had permitted
Plaintiff to possess in his cell. (Id. ¶ 52.) While moving Plaintiff to the segregation unit at
the prison, officers confiscated the adult publication previously in Plaintiff’s possession.
(Id. ¶ 55.)
Plaintiff filed with his complaint a motion to proceed without the prepayment of
fees and costs. (Motion to Proceed, ECF No. 2.) The Court granted Plaintiff’s motion and
ordered Plaintiff to file his intent to proceed. (Order Granting Motion to Proceed, ECF No.
3.) Prior to Plaintiff filing his intent to proceed and prior to any preliminary review by the
Court of Plaintiff’s complaint under 28 U.S.C. §§ 1915 and 1915A,2 Defendant Randall
Liberty filed a motion for an order revoking Plaintiff’s in forma pauperis status. (Motion
for Revocation, ECF No. 4.) The Court recently denied the motion. (Order, ECF No. 33.)
Defendants have not yet been served with Plaintiff’s first amended complaint.
Plaintiff moved for a temporary restraining order and preliminary injunction.
(Motion for TRO & Preliminary Injunction, ECF No. 13.) On July 8, 2022, the Court
1 Plaintiff filed an amended complaint several weeks after filing his original complaint. Federal Rule of
Civil Procedure 15(a) states, in relevant part, that “[a] party may amend its pleading once as a matter of
course within . . . 21 days after serving it.” Fed. R. Civ. P. 15(a)(1)(A). Because Plaintiff has not yet served
Defendants, Plaintiff is entitled to amend his complaint against Defendants as a matter of course. Plaintiff
has moved to amend the complaint a second time, but the Court has not yet acted on the motion. (See
Motion to Amend Amended Complaint, ECF No. 18.) The first amended complaint is therefore the
operative complaint.
2 Because Plaintiff currently is incarcerated and seeks redress from governmental entities and officers,
Plaintiff’s complaint is subject to screening under the Prison Litigation Reform Act. See 28 U.S.C. §
1915A(a), (c). The § 1915A screening requires courts to “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a
claim …; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §
1915A(b).
denied Plaintiff’s request for a temporary restraining order, finding the verified complaint
and the affidavit Plaintiff submitted in support of his motion “do not ‘clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition.’” (Order on Motion for TRO & Preliminary
Injunction at 1, ECF No. 14) (quoting Fed. R. Civ. P. 65(b)(1)(A)) (emphasis in original).)
Although Plaintiff has not served Defendants with the first amended complaint and the
motion, Defendant Liberty has appeared specially and opposed the motion on jurisdictional
grounds.
Plaintiff subsequently moved to amend his complaint, which motion is pending.
Defendants’ motion to revoke Plaintiff’s in forma pauperis delayed the Court’s preliminary
review of Plaintiff’s first amended complaint in accordance with 28 U.S.C. § 1915.
Because the Court denied the motion to revoke Plaintiff’s in forma pauperis status, the
Court will review Plaintiff’s first amended complaint in accordance with 28 U.S.C. §§ 1915
and 1915A and assess the merits of Plaintiff’s motion to amend.
Although Defendants have not been formally served in this action, because
Defendants Liberty opposed the motion for preliminary injunction and thus has notice of
the motion, consideration of the motion at this time is appropriate.3
3 Plaintiff argues that because Defendant Liberty did not make any substantive arguments in his response,
the Court should grant the motion because it is “largely unopposed.” (Reply at 2, ECF No. 17.) Regardless
of the nature of Defendant’s argument, the Court is obligated to assess whether Plaintiff, as the moving
party, has established grounds for his request for preliminary injunction.
DISCUSSION
The Court need not address Defendant Liberty’s jurisdictional argument because
Plaintiff has not established that a preliminary injunction is warranted.
When evaluating a request for injunctive relief, a court “must consider (1) the
likelihood of success on the merits; (2) the potential for irreparable harm if the injunction
is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if
enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the
effect (if any) of the court’s ruling on the public interest.” Ross–Simons of Warwick, Inc.
v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996) (citing Weaver v. Henderson, 984 F.2d
11, 12 & n.3 (1st Cir. 1993), and Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st
Cir. 1991)).
Plaintiff contends that in depriving him of certain publications, Defendants have
violated his First Amendment, Equal Protection, and Due Process rights. The publications
evidently contained sexualized content. In assessing the likelihood of Plaintiff prevailing
on his claim, I take judicial notice of the summary judgment record and the Court’s entry
of summary judgment against Plaintiff in Gladu v. Waltz, No. 1:18-cv-00275-GZS on a
claim against officers of the Maine State Prison that is similar to the claim Plaintiff asserts
in this case. While this case apparently involves different publications than those involved
in Waltz, Plaintiff has failed to present a factual record or identified any legal authority to
suggest that the impediments to his recovery in Waltz are not present here. Plaintiff,
therefore, has not demonstrated a likelihood of success on the merits.
Because Plaintiff has not established a likelihood of success on the merits, there is
no need to address the other factors in detail. “The sine qua non of [the] 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).
The other factors, however, also militate against a preliminary injunction. Plaintiff
has failed to demonstrate that he would be irreparably harmed without a preliminary
injunction. The publications would be available to him at the conclusion of the case should
he prevail, and any loss can otherwise be compensated through money damages.
Furthermore, because “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), and because the pertinent prison policy implicates legitimate safety
concerns, see Gladu v. Waltz, No. 1:18-cv-00275-GZS, Recommended Decision at 3-4, 9-
10, ECF No. 286, the balancing of parties’ interests and the assessment of the public interest
weigh against a preliminary injunction. Accordingly, Plaintiff is not entitled to a
preliminary injunction.
CONCLUSION
Based on the foregoing analysis, I recommend the Court deny Plaintiff’s motion for
a 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
pursuant to 28 U.S.C. § 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 20th day of September, 2022.