Opinion

GLADU v. MAGNUSSON

Court
District Court, D. Maine
Filed
Jan 23, 2023
Cited by
0 cases

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

NICHOLAS A. GLADU, )

)

Plaintiff, )

)

v. ) 1:22-cv-00134-JDL

)

MATTHEW MAGNUSSON, et al., )

)

)

Defendants. )

ORDER DENYING OBJECTIONS TO MAGISTRATE JUDGE ORDERS

Plaintiff Nicholas A. Gladu, proceeding pro se, filed this action on May 9, 2022,

against Defendants Matthew Magnusson, James Hancox, Randall Liberty, and

various other John Does employed by the Maine Department of Corrections

(“MDOC”) (ECF No. 1). Gladu filed an Amended Complaint on May 27, 2022 (ECF

No. 11). Defendant Liberty appeared specially to file a Motion to Revoke Plaintiff’s

In Forma Pauperis Status (ECF No. 4), arguing that Gladu had accrued multiple

strikes under the Prison Litigation Reform Act (“PLRA”) and thus should be

prohibited from bringing the claim without paying a filing fee. Gladu filed an

Opposition (ECF No. 23) to the motion, which included a request to stay

proceedings. Gladu also filed a Motion for Sanctions (ECF No. 26), arguing that the

Defendants were attempting “to interfere with meritorious claims filed against them

and to cause Plaintiff to have to needlessly defend such a motion.” ECF No. 26 at 1.

Judge Nivison issued an Order denying the motion to revoke Gladu’s status

(ECF No. 33) and an Order (ECF No. 35) dismissing as moot Gladu’s Motion to Strike

the Defendants’ Motion for Order Revoking In Forma Pauperis Status. Gladu filed

an Objection and Request for De Novo Review (ECF No. 42) that (1) argues that Judge

Nivison erred in designating Gladu’s appeal in Gladu v. Waltz, No. 19-2220, slip op.

117791239 (1st Cir. Sept. 27, 2021) a strike under the PLRA; (2) requests the Court

to incorporate all of his arguments from his Opposition to the Defendants’ Motion to

Revoke In Forma Pauperis Status; (3) requests leave to be excused from case citations

due to lack of access to the law library; and (4) objects to Judge Nivison’s “cautionary

order,” conceding that he does file a large number of civil actions, but that they do not

constitute baseless or frivolous pleadings.

Upon timely objection to a magistrate judge’s order on a non-dispositive

motion, this court may set aside the decision only if it is “clearly erroneous or contrary

to law.” Fed. R. Civ. P 71(a). I find that Judge Nivison’s Order is not clearly erroneous

or contrary to law, and I note the following regarding Gladu’s request for review.

First, Gladu claims that “the First Circuit expressly stopped short of making such

finding [that the appeal was frivolous] in the . . . dismissal” and claims that “the

appeal . . . was taken in error as an honest mistake of a pro se prisoner litigant.” ECF

No. 42 at 1. However, the First Circuit explicitly found that Gladu’s appeal was

frivolous, and “[a]lthough dismissal for want of jurisdiction is not a ground

specifically enumerated in [section] 1915(g), a strike is nevertheless permissible when

the assertion of jurisdiction is frivolous.” ECF No. 33 at 4-5 (citing De La Garza v. De

La Garza, 91 Fed. App’x 508, 509 (7th Cir. 2004)). Second, Cok warnings are

appropriate not only for baseless and frivolous filings, but also for the filing of

repetitive motions while other related motions remain pending. See Brown v.

Ferrara, No. 2:10-CV-523-GZS, 2012 WL 1165880, at *1 (D. Me. Mar. 28, 2012)

(“[F]iling repetitious motions without awaiting rulings from the Court on motions

already on the docket causes unnecessary delay.”), aff'd, No. 12-1847, 2013 WL

7137520 (1st Cir. June 11, 2013).

Judge Nivison also issued an Order (ECF No. 36) denying Gladu’s Motion for

Sanctions (ECF No. 26), finding that Defendant Liberty’s motion was not frivolous

and there was no basis to impose sanctions. Gladu filed a timely Objection (ECF No.

41). Upon review of the Magistrate Judge’s Orders, I affirm.

It is therefore ORDERED that the Magistrate Judge’s Order (ECF No. 33) on

Gladu’s Motion to Stay and Motion for Order is AFFIRMED and Gladu’s Objection

(ECF No. 42) is DENIED. It is further ORDERED that the Orders of the Magistrate

Judge (ECF Nos. 35 and 36) on Gladu’s Motion to Strike and Motion for Sanctions

are AFFIRMED and Gladu’s Objection (ECF No. 41) is DENIED.

SO ORDERED.

Dated this 23rd day of January, 2023.

/s/ Jon D. Levy

CHIEF U.S. DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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