stating that a court may “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements”
How later courts described this case
- stating that a court may “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements”
- applying Parker, 225 F.3d at 4-5
- “A litigant is not permitted to raise new issues to the district judge in his objections to the recommendation of the magistrate judge”
- “Parties must take before the magistrate judge ‘not only their “best shot” but all of their shots’”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DUSTIN GRAHAM GILBERT, )
)
Plaintiff )
)
v. ) 2:24-cv-00371-JAW
)
MAINE DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
)
Defendant )
ORDER ON RECOMMENDED DECISION AND OBJECTION
The court affirms in part and reverses in part an order issued by a federal
magistrate judge recommending the court dismiss a claim alleging the Maine
Department of Health and Human Services deprived a patient, then a resident at a
state psychiatric center, of his constitutional right to vote. The court dismisses the
claims brought pursuant to the Fifteenth Amendment, Article I of the U.S.
Constitution, and the employment provisions of the Americans with Disabilities Act
(ADA) but concludes the plaintiff should be allowed to proceed with his claim based
on an alleged violation of the voting rights provisions of the ADA.
I. BACKGROUND
On November 1, 2024, Dustin Graham Gilbert, acting pro se, filed a complaint
against the Maine Department of Health and Human Services (Maine DHHS)
pursuant to the Fifteenth Amendment to the United States Constitution, alleging he
was deprived of his right to vote while in the care of a psychiatric hospital. Compl.
at 4, 7 (ECF No. 1). He specifically claims that while in civil inpatient residence at
Riverview Psychiatric Center, he requested but never received a ballot for the 2022
election.1 Id. at 7.
On December 9, 2024, the United States Magistrate Judge recommended the
Court dismiss Mr. Gilbert’s complaint. Recommended Decision after Rev. of Pl.’s
Compl. (ECF No. 9) (Recommended Decision). Mr. Gilbert objected to the
Recommended Decision on December 19, 2024. Obj. to Rep. and Recommended
Decision (ECF No. 10) (Pl.’s Obj.). On December 23, 2024, after the order was taken
under advisement, Mr. Gilbert filed additional attachments in support of his
objection. Additional Attachs. (ECF No. 11).
II. THE MAGISTRATE JUDGE’S RECOMMENDED DECISION
Pursuant to the screening provisions of 28 U.S.C. § 1915(e)(2), the Magistrate
Judge recommends the Court dismiss Mr. Gilbert’s complaint brought against Maine
DHHS for several reasons. First, the Magistrate Judge concludes dismissal is
appropriate because the Fifteenth Amendment promises that the “right of citizens of
the United States to vote shall not be denied or abridged . . . on account of race, color,
or previous condition of servitude,” Recommended Decision at 4 n.2 (quoting U.S.
CONST. amend. XV), and Mr. Gilbert “provides no facts that suggest his race was in
any way relevant to his claim.” Id. at 3-4.
1 The Magistrate Judge’s Recommended Decision addressing Mr. Gilbert’s complaint correctly
observes that the Plaintiff had not specified for which election in 2022 he requested a ballot.
Recommended Decision after Rev. of Pl.’s Compl. at 2 n.1 (ECF No. 9) (Recommended Decision). The
Magistrate Judge assumed that Mr. Gilbert was referring to the 2022 election. Id. In his objection,
Mr. Gilbert confirmed he was a resident at Riverview at the time of the 2022 election. Obj. to Rep.
and Recommended Decision at 1 (ECF No. 10) (Pl.’s Obj.). (“When I was at R[i]verview is roughly
stated as the 2022 election and that should provide enough for the Magistrate to know. It was
October/November [. . .] which I planned on providing exact dates later”). Based on Mr. Gilbert’s
clarification, the Court concludes that he has been referring to the November 2022 election.
Second, the Magistrate Judge recommends dismissal because the complaint
provides only limited facts in support of an entitlement to relief: “Plaintiff asserts
only that (1) he wrote his name on a sign-up sheet, (2) he asked ‘staff’ for his ballot,
and (3) he did not receive a ballot.” Id. at 3. “Without information regarding the
circumstances of Plaintiff’s stay at Riverview or the timing and nature of his efforts
to vote,” the Magistrate Judge determines that “a factfinder could not plausibly infer
that his inability to vote was due to a staff member intentionally preventing him from
obtaining and casting a ballot,” such that “the factual content of the complaint is
inadequate to move a discernible legal claim ‘across the line from conceivable to
plausible’ entitlement to relief.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680
(2009)).
Third, the Magistrate Judge concludes that this absence of factual detail is
especially problematic for the present claim because the Plaintiff seeks an award of
monetary damages against Maine DHHS, relief typically barred under the Eleventh
Amendment. Id. at 4-5.
III. DUSTIN GILBERT’S OBJECTION AND ADDITIONAL
ATTACHMENTS
A. Dustin Gilbert’s Objection to the Recommended Decision
Mr. Gilbert objects to the Magistrate Judge’s Recommended Decision. First,
he says, he brought his claim pursuant to the Fifteenth Amendment because “the
form asked for an Amendment rather than an Article,” and “[he] will amend here if
citing an Article is allowed, that Article 1 of the U.S. Constitution was violated by
Riverview staff.” Pl.’s Obj. at 1. Second, Mr. Gilbert says the Magistrate Judge’s
questions as to why he was at Riverview are “irrelevant and unnecessary.” Id. In
response to the Magistrate Judge’s discussion of the lack of relevant information, Mr.
Gilbert additionally says “[he] spoke to everyone [he] could see behind the huge desk
on the unit, and those people are ‘mental health workers’ . . .. [he] think[s] everyone
on the unit and all the staff knew I didn’t have my ballot before the election.” Id. He
alleges further that he contacted several staff about obtaining a ballot “well in
advance of the election.” Id. In conclusion he avers “[his] statement of what
happened can be discovered by a factfinder and moves a discernable legal claim
‘across the line from conceivable to plausible’ entitlement to relief.” Id. Third, Mr.
Gilbert tells the Court he is a “disabled U.S. citizen collecting SSDI with numerous
diagnos[es] mostly dealing with BiPolar, Schizoaffective Disorder, PTSD, Traumatic
Brain Injuries, Insomnia and mania.” Id. at 2. He argues “42 U.S.C. [§] 12202 states
that states are not immune from lawsuits in federal or state court for [ADA]
violations,” and “not getting [him] [his] ballot . . . violated the ADA too.” Id. Mr.
Gilbert concludes his objection by reasserting that these violations entitle him to
$3,000,000 in punitive damages. Id.
B. Dustin Gilbert’s Additional Attachments
On December 23, 2024, Mr. Gilbert filed a memorandum as an additional
attachment to his objection. Additional Attachs. The memorandum says, in its
entirety, “I have obtained the grievance proving Riverview failed to get me my ballot
(by Riverview’s own admission) and the staff I dealt with as a whole are at fault.
Riverview Advocates’ office provided the grievance.” Id. at 1 (emphasis in original).
He also informs the Court in a postscript note that he has “received a replica of the
sign-up sheet.” Id.
IV. LEGAL STANDARD
The Court reviews the Magistrate Judge’s order for clear errors or holdings
contrary to law. See 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider
any pretrial matter [designated to a magistrate judge] where it has been shown that
the [magistrate judge’s] order is clearly erroneous or contrary to law”); FED. R. CIV.
P. 72(a) (“The district judge in the case must consider timely objections and modify
or set aside any part of the order that is clearly erroneous or is contrary to law”).
When reviewing for clear error, the Court “accept[s] the magistrate judge’s findings
of fact and the conclusions drawn therefrom unless, after analyzing the entire record,
[it] ‘form[s] a strong, unyielding belief that a mistake has been made.’” In re HIPAA
Subpoena (Patient Servs., Inc.), 961 F.3d 59, 64 (1st Cir. 2020) (citing Phinney v.
Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999)). Questions of law are
reviewed de novo, PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010),
while “[m]ixed questions of law and fact invoke a sliding standard of review.” FERC
v. Silkman, No. 1:16-CV-00205-JAW, 2017 U.S. Dist. LEXIS 211538, at *10-11 (citing
In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013)).
V. DISCUSSION
As the Court understands them, Mr. Gilbert’s complaint and his objection to
the Recommended Decision plead three pathways to relief: the Fifteenth Amendment,
Article I, and the ADA. The Fifteenth Amendment claim is the only one that appears
in the complaint, and thus the only one the Magistrate Judge had an opportunity to
respond to; the Court addresses it first.
A. The Fifteenth Amendment Claim in the Complaint
The Court reviewed and considered the Magistrate Judge’s Recommended
Decision, together with the entire record, and made a de novo determination of all
matters adjudicated by the Recommended Decision. The Court concurs with the
recommendations of the Magistrate Judge regarding Mr. Gilbert’s Fifteenth
Amendment claim for the reasons set forth in his Recommended Decision and
discussed above. At bottom, the Plaintiff does not argue or provide any evidence
which would allow the Court to conclude he was deprived of his constitutional right
to vote on account of his race. The Court affirms the Magistrate Judge’s dismissal of
Mr. Gilbert’s Fifteenth Amendment claim.
B. The Article I and ADA Claims in the Objection
The Court now turns to Mr. Gilbert’s claims brought pursuant to Article I and
the ADA, which he raises for the first time in his objection to the Recommended
Decision. Pursuant to Federal Rule of Civil Procedure 72, a party “may serve and file
objections to the order within 14 days after being served with a copy.” FED. R. CIV. P.
72; see also D. ME. LOC. R. 72(a) (“Within 14 days of being served with an objection, a
party opposing the objection may file a response with an incorporated memorandum
of law”). However, an objection is not an opportunity to relitigate the issue by raising
novel arguments. See Orchard v. United States, 332 F. Supp. 2d 275, 276 (D. Me.
2004) (“A litigant is not permitted to raise new issues to the district judge in his
objections to the recommendation of the magistrate judge”) (citing Paterson-Leitch
Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988)); Barden
v. Sec’y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (quoting Singh v.
Superintending Sch. Comm., 593 F. Supp. 1315, 1318 (D. Me. 1984) (“Parties must
take before the magistrate judge ‘not only their “best shot” but all of their shots’”).
Despite the directive of Local Rule 72(a), the Court will exercise its discretion
and consider the contents of Mr. Gilbert’s Article I and ADA claims in light of its
obligation to liberally construe the filings of a pro se litigant. See Gakuba v. Frey,
Nos. 23-1084, 23-1095, 2024 U.S. App. LEXIS 18703, at *1 (1st Cir. Apr. 10, 2024)
(citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
1. The Article I Claim
The Court turns to the merits of Mr. Gilbert’s claim pursuant to Article I and
concludes this is a “conclusory legal allegation” which need not be credited. García-
Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)); see also Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (stating that a court may “isolate
and ignore statements in the complaint that simply offer legal labels and conclusions
or merely rehash cause-of-action elements”). Article I enumerates the powers and
duties of the United States Congress; Mr. Gilbert has not directed the Court to a
specific provision of Article I that he alleges the Maine DHHS breached by its failure
to provide him with a ballot. To be fair to Mr. Gilbert, the Court re-reviewed Article
I and found no provision that would authorize the relief he is seeking.
2. The ADA Claim
Mr. Gilbert’s objection also claims he is entitled to punitive damages pursuant
to the ADA because he identifies as a disabled individual and alleges he was denied
the right to vote while in residence at a psychiatric hospital. Mr. Gilbert does not
direct the Court to a specific section of the ADA and the Court thus re-reviewed the
statute to see if a particular provision entitles the Plaintiff to relief.
Part of the ADA prohibits employers from “discriminat[ing] against a qualified
individual on the basis of disability in regard to . . . discharge of employees . . . and
other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2),
12112(a). Federal courts have held that discrimination occurs under this act “when
an employer requires a disabled employee to work in an environment where they are
abused or treated with hostility because of their disability.” Johnson v. Whole Foods
Mkt. Grp., Inc., 657 F. Supp. 3d 158, 174 (D. Me. 2023) (citing Brader v. Biogen Inc.,
983 F.3d 39, 59 (1st Cir. 2020)). Mr. Gilbert does not have a colorable claim of
employment discrimination on account of his disability under the ADA. He does not
argue his employer denied him the right to vote or assert that the right to vote is a
privilege of employment. Nor, indeed, does he anywhere allege that the Defendant
to this case, Maine DHHS, is his employer.
However, the ADA also contains provisions under Title II that require state
and local governments to ensure that people with disabilities have a full and equal
opportunity to vote in elections. To succeed on a claim pursuant to Title II of the
ADA, a plaintiff must establish: (1) that he is a qualified individual with a disability;
(2) that he was either excluded from participation in or denied the benefits of some
public entity’s services, programs, or activities or was otherwise discriminated
against; and (3) that such exclusion, denial of benefits, or discrimination was by
reason of the plaintiff’s disability. Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st
Cir. 2000) (citing 42 U.S.C. § 12132); see also Doe v. Rowe, 156 F. Supp. 2d 35, 57-58
(D. Me. 2001) (applying Parker, 225 F.3d at 4-5).
First, the Court concludes Mr. Gilbert has pleaded sufficient facts at the
motion to dismiss stage to establish he is a qualified individual with a disability. See
42 U.S.C. § 12131(2) (“The term ‘qualified individual with a disability’ means an
individual with a disability who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity”). Mr. Gilbert may meet the definition of disability under
the ADA if he presents proof of any of the following: “(a) a physical or mental
impairment which substantially limits one or more of an individual’s major life
activities; (b) a record of such impairment; or (c) being regarded as having such an
impairment.” Calero-Cerezo v. United States DOJ, 355 F.3d 6, 20 (1st Cir. 2004)
(citing 42 U.S.C. § 12102(2) and 29 C.F.R. § 1630.2(g)). As Mr. Gilbert alleges that
he was an in-patient at the state’s psychiatric hospital in 2022, he would qualify as a
person with a disability under the ADA.
Second, Maine DHHS is clearly a “public entity.” See 42 U.S.C. § 12131(1)(B)
(“The term ‘public entity’ means . . .. any department, agency, special purpose district,
or other instrumentality of a State or States or local government”).
A closer question is whether Mr. Gilbert has sufficiently alleged that he did
not receive his absentee ballot on account of his disability status, as the third prong
requires. As just noted, Mr. Gilbert claims that he was an in-patient and in the
“custody” of the Riverview Psychiatric Center during the 2022 election. Compl. at 7.
Mr. Gilbert says he asked the staff for a ballot and signed his name on a list to receive
one, but his ballot “never came.” Id. The Court concludes that Mr. Gilbert has
pleaded sufficient facts to survive this initial screening because as a psychiatric in-
patient at a state facility, he was dependent upon the state to secure his right to vote,
and he alleges that it failed to do so despite his request. The Court concludes that
Mr. Gilbert should be allowed to proceed with his claim based on an alleged violation
of the voting rights provisions of Title II of the ADA.
C. Mr. Gilbert’s Additional Attachment
Mr. Gilbert submitted a memorandum as an additional attachment to his
objection, after the Court took his objection under advisement. The Court is under
no obligation to review this untimely submission and also notes that Federal Rule of
Civil Procedure 72, which allows a party to file an objection to an order within
fourteen days, says nothing about a party’s right, nor the applicable timeline, to file
a reply in support of their objection. FED. R. CIV. P. 72. However, the District of
Maine Local Rules specify that “[e]xcept by prior order of the Court, no reply
memorandum shall be filed.” D. ME. LOC. R. 72(a). Mr. Gilbert has neither sought
nor been granted leave to file a reply memorandum.
Nonetheless, in light of the First Circuit’s clear directive to district courts to
construe pro se filings liberally, Gakuba, 2024 U.S. App. LEXIS 18703, at *1 (citing
Erickson, 551 U.S. at 94), the Court reviewed the contents of Mr. Gilbert’s additional
attachment. The memorandum tells the Court Mr. Gilbert has “obtained the
grievance proving Riverview failed to get me my ballot (by Riverview’s own
admission) and the staff I dealt with as a whole are at fault.” Additional Attachs. at
1 (emphasis in original). The memorandum does not inform the Court which legal
claim this factual allegation supports, let alone how it bolsters the claim, and,
contrary to its title, it does not attach any additional piece of evidence for the Court
to consider. The Court is unsure what to make of this untimely filing but concludes
it does not change the result.
VI. CONCLUSION
Without ruling on the merits, the Court concludes Mr. Gilbert has raised
sufficient allegations in his complaint to warrant a response from the State. The
Court thus AFFIRMS in part and REVERSES in part the Magistrate Judge’s
Recommended Decision After Review of Plaintiff’s Complaint (ECF No. 9) and
GRANTS in part and OVERRULES in part the Plaintiff’s Objection to the Report and
Recommended Decision (ECF No. 10). The Court affirms the Recommended Decision
on the Fifteenth Amendment claim ruled on by the Magistrate Judge as well as the
claims the Plaintiff brings in his objection pursuant to Article I and the ADA’s
employment provision. Although Mr. Gilbert failed to bring his ADA voting rights
claim to the Magistrate Judge’s attention, the Court reverses the Recommended
Decision to the extent it recommends dismissal of Mr. Gilbert’s complaint. Having
concluded the complaint partially survives this initial screening, the Court ORDERS
that Mr. Gilbert be allowed to proceed with his claim based on an alleged violation of
the voting rights provisions of Title II of the ADA.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 30th day of December, 2024