# GLADU v. MAGNUSSON

> District Court, D. Maine · October 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10650300

## Case

- **Court:** District Court, D. Maine
- **Decided:** October 31, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NICHOLAS A. GLADU, )
)
Plaintiff )
)
v. ) 1:22-cv-00134-SDN
)
MATTHEW MAGNUSSON, et al., )
)
Defendants )
RECOMMENDED DECISION ON MOTION TO AMEND COMPLAINT
AND MOTION TO SUBSTITUTE PARTIES
Plaintiff, an inmate at the Maine State Prison, claims that the defendants, various
employees at the prison, violated his rights under the First Amendment, discriminated
against Plaintiff in violation of the Equal Protection Clause, deprived Plaintiff of due
process, and violated the Maine Civil Rights Act. Defendants Hancox, Liberty, and
Magnusson accepted service of Plaintiff’s complaint. (Acceptance of Service, ECF No.
53.)
The matter is before the Court on (a) Plaintiff’s motion to amend the current
complaint to replace defendants listed as “John Doe” with Joseph Theriault, Officer Reid,
and Officer A. Stanley, (ECF No. 125), and (b) Plaintiff’s motion to substitute Myles Reid
for Officer Reid/John Doe, Andrew Stanley for Officer A. Stanley/John Doe, and Joseph
Theriault for Grievance Review Officer/John Doe. (ECF No. 134.) Following a review of
the record and after consideration of the parties’ arguments, I recommend the Court grant
in part Plaintiff’s motion to substitute parties and deny Plaintiff’s motion to amend.
DISCUSSION1
When a party seeks to amend a complaint more than 21 days after the filing of a
responsive pleading, the other party’s consent or leave of court is required to amend the

complaint. Fed. R. Civ. P. 15(a)(2). In such a case, the court is to grant leave to amend
“freely” when “justice so requires.” Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(“In the absence of any apparent or declared reason—such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc.—the leave sought should, as the
rules require, be ‘freely given.’”). A “futile” amendment is one that “would fail to state a
claim upon which relief could be granted.” Glassman v. Computervision Corp., 90 F.3d
617, 623 (1st Cir. 1996). In other words, “if the proposed amendment would be futile
because, as thus amended, the complaint still fails to state a claim, the district court acts

within its discretion in denying the motion to amend.” Boston & Me. Corp. v. Hampton,
987 F.2d 855, 868 (1st Cir. 1993).
A complaint fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering the sufficiency of a complaint,

it is appropriate for the court to review not only a plaintiff’s allegations, but also facts

1 Because Plaintiff’s motion to substitute parties can be fairly construed as supplement to the motion to
amend, I consider both motions as seeking an amendment to the current complaint and, therefore, review
the motions under the motion to dismiss standard.
“gleaned from documents incorporated by reference into the complaint, matters of public
record, and facts susceptible to judicial notice.” Haley v. City of Boston, 657 F.3d 39, 46

(1st Cir. 2011).
A. Claim Against Joseph Theriault
Plaintiff’s proposed amended complaint alleges that Joseph Theriault is or was the
Grievance Review Officer at Maine State Prison and while in that role, Mr. Theriault failed
to process grievances submitted by Plaintiff. (Proposed Amended Complaint at 16, ECF
No. 125-1.) Grievance review officers are ordinarily not subject to due process claims for

failure to implement the grievance review process. Gladu v. Waltz, No. 1:18-cv-00275-
GZS, 2018 WL 5315192 (D. Me. Oct. 26, 2018); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996) (“[A] state's inmate grievance procedures do not give rise to a liberty
interest protected by the Due Process Clause.”); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994) (“[T]here is no constitutional right to participate in grievance proceedings.”);

Charriez v. Sec'y, Fla. Dep't of Corr., 596 Fed. App'x 890, 895 (11th Cir. 2015) (“Because
the prison grievance procedure does not create a protected liberty interest, Charriez does
not have a federal constitutional right within that administrative-grievance procedure.”);
Von Hallcy v. Clements, 519 Fed. App'x 521, 523 (10th Cir. 2013) (“Von Hallcy cannot
state a due process claim based on allegations of an ineffective grievance reporting

system.”); Woods v. First Corr. Med. Inc., 446 Fed. App'x 400, 403 (3d Cir. 2011) (“[A]
prisoner has no free-standing constitutional right to an effective grievance process....”);
Butler v. Brown, 58 Fed. App'x 712 (9th Cir. 2003) (“[A] prisoner has no constitutional
right to prison grievance procedures.”); Young v. Gundy, 30 Fed. App'x 568, 569 – 70 (6th
Cir. 2002) (“[T]here is no inherent constitutional right to an effective prison grievance
procedure.”). Plaintiff’s proposed claim against Joseph Theriault would be futile.

B. Counts IV-VII
On April 25, 2024, the Court granted in part and denied in part the defendants’
motion to dismiss Plaintiff’s amended complaint. (Order, ECF No. 96.) In relevant part,
the Court dismissed Counts IV, V, VI, and VII of Plaintiff’s amended complaint. (Id. at
15.) In Counts IV through VII of the amended complaint, Plaintiff asserted claims of
conspiracy, unauthorized taking of property, violation of Maine’s Civil Rights Act, and

retaliation. Plaintiff’s proposed amended complaint includes Counts IV, V, VI, and VII
from the amended complaint. The proposed amended complaint adds a paragraph to Count
IV and a clause to Count VII but otherwise Counts IV through VII in the proposed amended
complaint are the same as asserted in the amended complaint that was the subject of
Defendants’ motion to dismiss. (Compare ECF No. 125-1 with ECF No. 11.) The

additions in the proposed amended complaint do not substantively change the claims
asserted. Because the Court previously dismissed the claims, the reassertion of the claims
would be futile.
C. The Addition of Officers Stanley and Reid
The proposed amended complaint alleges Officers Stanley and Reid, and the other
defendants, violated Plaintiff’s rights pursuant to the First Amendment and the Due Process

and Equal Protection Clauses of the Fourteenth Amendments and are liable under 42
U.S.C. § 1983. Section 1983 “‘is not itself a source of substantive rights,’ but merely
provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver,
510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “For
§ 1983 liability to attach, each Defendant must be personally involved in the constitutional

violation.” Prison Legal News v. Babeu, 933 F. Supp. 2d 1188, 1204 (D. Ariz. 2013)
(citing Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)). Prison staff may be liable
under section 1983 for following orders or policy that is unconstitutional. Id.
In his filing, Plaintiff alleges that Officers Stanley and Reid are media review
officers at the prison. According to Plaintiff, Officers Stanley and Reid are biased against
materials with adult male nudity, and Plaintiff began experiencing issues receiving his

books and magazines after the officers became media review officers. Plaintiff alleges that
both the officers cited prison policy to justify the denial of Plaintiff’s books and magazines.
Plaintiff also states that the officers allowed books and magazines featuring female nudity.
In addition, Plaintiff alleges that Officer Reid made derogatory comments about reviewing
materials with male nudity. Plaintiff’s proposed allegations are more than conclusory and

are sufficient to state a claim against Officers Stanley and Reid. See Lucas v. Chalk, 785
Fed. App’x 288, 291–92 (6th Cir. 2019) (stating that remark from prison official “would
be potent evidence in support of” an Equal Protection claim); Mulero Abreu v. Oquendo-
Rivera, 729 F. Supp. 2d 498, 523 (D.P.R. 2010) (denying motion to dismiss as to Equal
Protection claim when plaintiff alleged different treatment in payroll system).

Defendants also urge the Court to deny the motion to amend because Plaintiff knew
the identity and alleged involvement of Officers Stanley and Reid at the time he filed his
original complaint. While Plaintiff might have known of the officers alleged involvement
earlier, the Court is not persuaded that Plaintiff’s prior knowledge precludes the requested
amendment. Plaintiff filed his motion before the deadline for amendment of the pleadings
and therefore, Plaintiff’s request is governed by the more liberal review standard. See

Foman, 371 U.S. at 182; cf Cohen v. City of Portland, 2:21-cv-00267-NT, 2023 WL
1437811, at *1 (D. Me. Feb. 1, 2023) (imposing an “elevated” standard on motion seeking
leave to amend filed after deadline for amendment of pleadings had passed). Because
discovery is ongoing, I do not believe the amendment will delay the trial of the matter and
I discern no undue prejudice to Defendants.

CONCLUSION
Based on the foregoing analysis, I recommend the Court grant in part Plaintiff’s
motion to substitute/add Andrew Stanley and Myles Reid as defendants, deny Plaintiff’s
motion to substitute/motion amend to name Joseph Theriault as a defendant, and deny
Plaintiff’s motion to amend to add Counts IV through VII.
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
and 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 31st day of October, 2024.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10650300. Public record. Not legal advice.