GILBERT v. MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES

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. )

OMNIBUS ORDER ON DEFENDANT’S MOTION TO DISMISS AND

PLAINTIFF’S MOTIONS TO AMEND AND TO CONTINUE

A disabled individual alleged the Maine Department of Health and Human

Services violated Title II of the Americans with Disabilities Act by depriving him of

his constitutional right to vote when he was a civil inpatient at a state psychiatric

center during the November 2022 election. The defendant moves to dismiss the

complaint on the ground that the plaintiff’s claim is not redressable. Concluding the

plaintiff has established he has standing to proceed under Title II, the court dismisses

the defendant’s motion to dismiss.

The court further dismisses the plaintiff’s motion to amend his complaint for a

second time, concluding the claim he seeks to bring against a state agency pursuant

to 42 U.S.C. § 1983 would be futile. Finally, the court dismisses the plaintiff’s motion

seeking continuance to allow for discovery on these pending motions.

I. PROCEDURAL HISTORY

On November 1, 2024, Dustin Graham Gilbert, acting pro se, filed a complaint

against the Maine Department of Health and Human Services (Maine DHHS),

alleging Maine DHHS violated the Fifteenth Amendment to the United States

Constitution by depriving him of his constitutionally guaranteed right to vote while

he was in the care of a state-run psychiatric hospital. Compl. at 4, 7 (ECF No. 1).

Mr. Gilbert specifically claims that, while in civil inpatient residence at Riverview

Psychiatric Center (Riverview), he requested but never received a ballot for the 2022

election.1 Id. at 7.

Mr. Gilbert elected to proceed in forma pauperis, Appl. to Proceed in Dist. Ct.

Without Prepaying Fees or Costs (ECF No. 3), and, pursuant to 28 U.S.C. § 1915(e)(2),

the statute that governs matters filed without the prepayment of fees, courts are

authorized to conduct a preliminary review of a complaint when a plaintiff proceeds

in forma pauperis. 28 U.S.C. § 1915(e)(2). Following such a review, 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)

(Rec. Dec.). Mr. Gilbert objected to the Recommended Decision on December 19, 2024,

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) (Rec. Dec.). The Magistrate

Judge assumed that Mr. Gilbert was referring to the November 2022 election. Id. In his objection,

Mr. Gilbert confirmed he was a resident at Riverview at the time of the November 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.

and raised new claims under Article I of the United States Constitution and the

Americans with Disabilities Act (ADA). Obj. to Rep. and Recommended Decision

(ECF No. 10) (Am. Compl.2). 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).

On December 30, 2024, the Court affirmed in part and reversed in part the

Recommended Decision and granted in part and overruled in part Mr. Gilbert’s

objection. Order on Recommended Decision and Obj. at 11-12 (ECF No. 12) (Order

on Rec. Dec. and Obj.). The Court’s order affirmed the Magistrate Judge’s

recommended ruling on the Fifteenth Amendment claim, as well as on the claims

asserted by the Plaintiff 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 reversed the Recommended

Decision to the extent it recommended dismissal of Mr. Gilbert’s case in its entirety

and ordered that he be allowed to proceed on the claim raised in his objection for an

alleged violation of the voting rights provision of Title II of the ADA. Id.

Maine DHHS agreed to accept service on January 30, 2025, and, on March 3,

2025, filed a motion to dismiss Mr. Gilbert’s complaint, as amended by his objection,

pursuant to Federal Rule of Civil Procedure 12(b)(1) for the Plaintiff’s lack of standing

and Rule 12(b)(6) for failure to state on claim on which relief can be granted.

2 As the Court explains below, it regards Mr. Gilbert’s objection, which raised new grounds to

relief, as an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).

Acceptance of Serv. (ECF No. 14); Mot. to Dismiss of Def. Dep’t of Health & Hum.

Servs. (ECF No. 17) (Def.’s Mot. to Dismiss). Mr. Gilbert responded in opposition on

March 24, 2025. Resp. to the State (ECF No. 20) (Pl.’s Dismissal Opp’n and Amend

Reply). On April 7, 2025, Maine DHHS replied. Reply Mem. in Further Support of

Mot. to Dismiss of Def. Dep’t of Health & Hum. Servs. (ECF No. 21) (Def.’s Dismissal

Reply).

Meanwhile, on February 20, 2025, Mr. Gilbert moved to amend his complaint

a second time, seeking to augment his complaint with a First Amendment claim

pursuant to 42 U.S.C. § 1983. Mot. to Amend (ECF No. 16) (Pl.’s Mot. to Amend).3 On

March 10, 2025, Maine DHHS opposed Mr. Gilbert’s motion on the ground that his

proposed amendment would be futile. Def. Dep’t of Health & Hum. Servs.’ Opp’n to

Pl.’s Mot. to Amend Compl. (ECF No. 19) (Def.’s Opp’n to Mot. to Amend). Mr. Gilbert

replied on March 24, 2025. Pl.’s Dismissal Opp’n and Amend Reply.

While the Defendant’s motion to dismiss and his own motion to amend were

still pending, on April 9, 2025, Mr. Gilbert filed a motion to continue “for the reason

of a Discovery request to the State.” Mot. for Continuance [B]ased on Disc. Req. to

the Def. at 1 (ECF No. 22) (Pl.’s Mot. to Continue).

3 Mr. Gilbert’s motion to amend reports that he has an additional claim under “Section 1935,”

which he alternatively refers to as “US Code 42, Section 1935.” Pl.’s Mot. to Amend at 1. He says:

“Under US Code 42, Section 1935, state employees acting under the color of state law can[]not violate

civil rights and not be liable.” Id. On March 7, 2025, Mr. Gilbert filed a letter, docketed as an

additional attachment, clarifying these statutory references were in error and he intended to refer to

“US Code 42, Section 1983.” Additional Attachs. at 1 (ECF No. 18) (emphasis in original). The Court

accepts Mr. Gilbert’s clarification and construes his request to amend as seeking to add a claim

pursuant to 42 U.S.C. § 1983.

The Court issues this order to respond to the Defendant’s motion to dismiss

the Title II claim Mr. Gilbert raised in his amended complaint, the Plaintiff’s motion

to amend his complaint to add a First Amendment claim, and the Plaintiff’s motion

to continue. The Court begins by addressing the motion to dismiss.

II. MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES’

MOTION TO DISMISS

A. Factual Background4

1. A Preliminary Note on the Scope of the Factual Record

The Court begins with a preliminary statement on the scope of the factual

record. “[A] motion to dismiss under Rule 12(b)(6) generally provides no occasion

upon which to consider documents other than the complaint.” Doe v. Pawtucket Sch.

Dep’t, 969 F.3d 1, 8 (1st Cir. 2020); accord James D. Julia, Inc. v. Dan Murphy

Auctions, LLC, No. 1:21-cv-00025-JAW, 2021 U.S. Dist. LEXIS 115124, at *21 (D. Me.

June 21, 2021) (“Ordinarily, a court ruling on a motion to dismiss may only consider

whether the factual allegations within the four corners of the plaintiff’s complaint

state a plausible claim for relief”). However, here, Mr. Gilbert’s objection to the

Magistrate Judge’s recommended decision raised new grounds for relief, one of which,

the Title II claim, is the sole reason his case survived the initial screening pursuant

to 28 U.S.C. § 1915(e).

4 Consistent with the motion to dismiss standard, the Court relied on the complaint’s well-

pleaded facts. “[T]he court must distinguish ‘the complaint’s factual allegations (which must be

accepted as true) from its conclusory legal allegations (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”).

“A party may amend its pleading once as a matter of course no later than . . .

21 days after service of a responsive pleading or 21 days after service of a motion

under Rule 12(b).” FED. R. CIV. P. 15(a)(1)(B). Mr. Gilbert’s complaint was a pleading

to which a responsive pleading was required; in lieu of its answer, Maine DHHS filed

a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6). See Def.’s Mot. to Dismiss.

Mr. Gilbert filed his objection to the Recommended Decision before Maine DHHS filed

its motion to dismiss and, thus, his amended complaint was filed as of right. See

Howard v. IDEXX Distrib., No. 2:20-cv-00079-JDL, 2020 U.S. Dist. LEXIS 117455, at

*2-3 (D. Me. July 5, 2020). In turn, an amended complaint that was “filed as of right

. . . bec[omes] the operative complaint without judicial intervention and before any

jurisdictional challenge had surfaced.” ConnectU LLC v. Zuckerberg, 522 F.3d 82, 96

(1st Cir. 2008) (emphasis in original).

The Court thus construes Mr. Gilbert’s objection as an amended complaint,

which supersedes his original complaint as the operative filing, and recounts the

factual allegations as stated within that amended complaint for the purpose of ruling

on the Defendants’ motion to dismiss.

2. The Factual Record

Mr. Gilbert is a disabled United States citizen collecting Social Security

Disability Insurance (SSDI) with numerous diagnoses including Bipolar Disorder,

Schizoaffective Disorder, Post-Traumatic Stress Disorder (PTSD), traumatic brain

injuries, insomnia, and mania. Am. Compl. at 2. Riverview Psychiatric Center

knows, and at all times relevant to this dispute knew, about Mr. Gilbert’s disability

status. Id. at 1, 3.

Mr. Gilbert was a civil inpatient at Riverview on the Lower Kennebec Unit

around the time of the November 2022 election and “followed a presented process to

obtain [his] ballot . . . but the process apparently fell apart.” Id. at 1, 3. Ahead of

Election Day, the Plaintiff “spoke to everyone [he] could see behind the huge desk on

the unit . . . [including] ‘mental health workers’ . . .. [who] “are suppose[d] to

communicate things to others within who are not at the desk.” Id. at 1. Mr. Gilbert

believes everyone on the unit and all the staff knew he did not have his ballot before

the election. Id. He asked the mental health workers behind the desk, advocates,

and his doctor, and “asked as much as anyone could ask, of the employees on the unit,

. . . even ask[ing] contracted non-state paid people who worked on the unit.” Id. Mr.

Gilbert made these requests “well in advance of the election” and “was very outspoken

on what occurred to [him].” Id. at 1, 2.

On the date of the November 2022 election, Mr. Gilbert did not have his ballot.

Id. At this time, he “grabbed the list off the window, with only one other name on it.”

Id. at 1. He states that medical records show he was present at Riverview during the

November 2022 election and, according to voting records, he did not vote in 2022. Id.

Mr. Gilbert says he followed the internally prescribed process to obtain his

ballot as a civil inpatient at a psychiatric hospital, but then received a reply “that

there was an error and now it seems there [are] no repercussions.” Id. As a result of

this experience, Mr. Gilbert was “made [to] . . . feel angst and tremendously defeated

. . . like [he] was less than a citizen.” Id. at 2 (ellipses in original). He filed a grievance

complaint over the issue in which Maine DHHS replied that there was an error; their

records keep grievances for at least two years. Id. at 3.

Subsequently, in the 2024 primary elections, Mr. Gilbert was again at

Riverview and “saw who[] [he] believe[s] is in control of voting . . . persuaded a female

patient to vote and also went on to make sure the patient was going to vote for Joe

Biden,” which he describes as “another violation of voting at Riverview.” Id. at 2.

B. The Parties’ Positions on the Motion to Dismiss

1. The Plaintiff’s Legal Claims in the Amended Complaint

As noted above, the Plaintiff’s amended complaint brings arguments pursuant

to the Fifteenth Amendment, Article I, and the ADA. Having previously dismissed

the Fifteenth Amendment and Article I claims, the Court addresses only the

remaining claim alleging a violation of the voting rights provision of Title II of the

ADA. See Order on Rec. Dec. and Obj. at 1-12.

Mr. Gilbert argues his deprivation of his right to vote in the November 2022

election was “egregious,” alleging he “was guaranteed a right to vote in this country,

a process to obtaining [his] ballot as a civil inpatient at a psychiatric hospital, [he]

followed it and then [he] got a reply back that there was an error and now it seems

there [are] no repercussions.” Am. Compl. at 1. “This is an example of losing our

country’s foundation, the right to vote . . . Democracy,” he contends. Id. (ellipsis in

original). He argues “[his] loss is great” and his “statement of what happened can be

discovered by a factfinder and moves a discernible legal claim ‘across the line from

conceivable to plausible’ entitlement to relief.” Id.

Addressing the Magistrate Judge’s conclusion that the Eleventh Amendment

prevents the Plaintiff from suing Maine DHHS, Mr. Gilbert says “[t]he Americans

with Disabilities Act . . . matters in this case as well.” Id. at 2. He reports that he is

a disabled U.S. citizen collecting SSDI and diagnosed with Bipolar Disorder,

Schizoaffective Disorder, PTSD, traumatic brain injuries, insomnia and mania, and

additionally contends “Riverview obviously knows this” because “[his] disabled status

was stated on the application to proceed without payment.” Id. Mr. Gilbert argues

the ADA provides a pathway to relief pursuant to 42 U.S.C. § 12202 which he claims

says “that states are not immune from lawsuits in federal or state court for ADA

violations.” Id. Further, he contends the ADA “states that people with disabilities

must have a full and equal opportunity to vote in all elections . . . and that includes

early or absentee ballots.” Id. (ellipsis in original). “The [] ADA[] covers [his] status

as an American with a disability and . . . therefore, when violated, abrogates

sovereign immunity,” Mr. Gilbert alleges. Id. The Plaintiff argues that “not getting

[him] [his] ballot after [he] followed the process . . . violated the ADA,” claiming

further that Riverview’s employees “neglect[ed] his right to vote,” and he was “very

outspoken on what occurred to [him], which means everyone knew on the unit.” Id.

Mr. Gilbert seeks relief in the form of three million dollars in punitive

damages, explaining “[p]unitive damages are a part of our justice system. Relief i[s]

not really sought. I seek punishment and if this is already law, to provide a ballot

inside a state psychiatric hospital . . . and it wasn’t done . . . the only thing left to seek

is a punitive damage . . . and taking away is something I can[]not get back.” Id. at 1

(ellipses in original). He appears to resist the Magistrate Judge’s characterization of

his request for relief as injunctive, saying “[t]o not have a punitive damage and

[instead have] a simple injunction would be to excuse the violation and let my rights

stand as violated in the 2022 election . . . and what’s the point of law if penalties, and

this one at that . . . a violation of the very first civil right and the ADA . . .are not

had.” Id. at 2 (ellipses in original).

Finally, Mr. Gilbert clarifies that he brings suit against Maine DHHS because

it oversees Riverview and “[t]his rights violation by so many at Riverview makes

DHHS as a whole the responsible party.” Id. at 2. He says further that “there were

so many people I asked about getting my ballot that it’d be impractical to name them

all as defendants in the case that the entity that oversees them would be best to su[e]

based on that fact.” Id. at 3.

2. The Defendant’s Motion to Dismiss

Maine DHHS moves to dismiss Mr. Gilbert’s Title II claim against it pursuant

to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

a. Rule 12(b)(1)

Maine DHHS argues the amended complaint warrants dismissal because Mr.

Gilbert has not alleged sufficient facts to establish the redressability prong of Article

III standing. Def.’s Mot. to Dismiss at 1. If a plaintiff fails to establish that he or she

has suffered an injury-in-fact, that the defendant’s conduct caused his or her injury,

or that the Court has authority to redress this injury, Maine DHHS agues the

plaintiff “has failed to establish standing, and the Court must dismiss the claim for

lack of subject matter jurisdiction.” Id. at 5 (citing Laufer v. Acheson Hotels, LLC, 50

F.4th 259, 266 (1st Cir. 2022); Gideon Asen LLC v. Glessner, 583 F. Supp. 3d 242,

247-48 (D. Me. 2022)).

Alleging that Mr. Gilbert seeks compensatory damages for “mental angst,”

punitive damages, and injunctive relief, the Defendant alleges that the Court must

dismiss the amended complaint because Title II affords Mr. Gilbert none of these

forms of requested relief. Id. at 1, 5. Beginning with punitive damages, Maine DHHS

argues the Supreme Court “has made clear that Title II of the ADA does not allow for

punitive damages.” Id. at 6 (citing, e.g., Barnes v. Gorman, 536 U.S. 181, 189 (2002)

(holding that punitive damages are not available for claims brought under Title II);

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 28 (1st Cir. 2006) (same)).

On the issue of compensatory damages for “mental injuries” including “mental

angst,” the Defendant argues that a recovery of compensatory damages under Title

II requires a plaintiff to demonstrate that the defendant intentionally discriminated

against him or caused him to suffer economic harm. Id. (citing Nieves-Marquez v.

Puerto Rico, 353 F.3d 108, 126-27 (1st Cir. 2003)). Here, “Mr. Gilbert has not alleged

that DHHS intentionally discriminated against him, or that he suffered economic

harm,” Defendant contends. Id. (first citing Compl.; Am. Compl., then collecting cases

from the First Circuit and other federal courts holding the recovery of compensatory

damages under the ADA requires a showing of discriminatory animus or economic

harm). At bottom, the Defendant argues Mr. Gilbert has not alleged either of these

required elements, and “[m]erely labeling the delay as intentional discrimination,

without some modicum of evidence demonstrating an actual discriminatory animus,

is itself not enough.” Id. at 7 & n.5 (quoting Carmona-Rivera v. Puerto Rico, 464 F.3d

14, 18 (1st Cir. 2006)). Maine DHHS proceeds to cite caselaw emphasizing that

damages for emotional distress alone are not available under either Title II of the

ADA or its sister statute, the Rehabilitation Act. Id. at 7-8 (collecting federal cases).

Finally, insofar as Mr. Gilbert’s request for “a remedy” to the problem of not

allowing inpatients to receive their ballots at Riverview is a motion for injunctive

relief, the Defendant argues that he does not allege facts suggesting there is a “real

and immediate threat” of harm sufficient to warrant an injunction. Id. at 8-9 (first

quoting Compl. at 7, then quoting Gray v. Cummings, 917 F.3d 1, 19 (1st Cir. 2019)

(in turn quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105, 111 (1983)) (citing

Compl.; Am. Compl.). Maine DHHS insists “past injury, in and of itself, ‘is an

insufficient predicate for equitable relief.’” Id. at 9 (quoting Gray, 917 F.3d at 19 (in

turn quoting Am. Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir. 1992)).

The Defendant argues there is nothing in Mr. Gilbert’s complaint or amended

complaint which would allow the Court to grant him injunctive relief. Id.

Maine DHHS concludes that the Court should dismiss Mr. Gilbert’s ADA claim

pursuant to Rule 12(b)(1) for failing to allege sufficient facts to establish his standing.

Id.

b. Rule 12(b)(6)

In the alternative, Maine DHHS briefly argues that the amended complaint

warrants dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) “because Mr.

Gilbert has failed to allege a plausible claim to relief.” Id. at 9-10 (collecting cases

from the Supreme Court, First Circuit, and other federal courts discussing Federl

Rule of Civil Procedure 12(b)(6)).

3. The Plaintiff’s Opposition

Mr. Gilbert opposes the motion to dismiss, arguing in relevant part that

“[t]here is Article III standing to sue because DHHS broke the law in the ADA and

the ADA is there to protect the rights of disabled . . . such as the [F]irst [A]mendment

and the right to due process that were violated in this case.” Pl.’s Dismissal Opp’n

and Amend Reply at 1 (ellipsis in original). He contends “[t]here is a ‘case . . .’ here

because Federal law was broken.” Id. (ellipsis in original).

Mr. Gilbert alleges he has satisfied Article III’s requirement of an injury-in-

fact because “the right to vote while being an involuntary inpatient” amounts to “an

invasion of a legally protected interest,” a violation he deems “concrete and

particularized” as well as “actual.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992)). “What is so concrete, particularized and actual is that there is an

admission by the state that I did not vote (when others did get to vote: an omission) .

. . making a [F]irst [A]mendment violation and due process violation that the ADA

protect,” he insists. Id. (ellipsis in original). “This claim of injury by omission is new,”

he proffers, but maintains “it is fitting.” Id. at 2. Mr. Gilbert says further that “[t]his

case is also a violation; crime on Democracy and election integrity [and] [i]f it were to

go without redress it would set a dangerous precedent, allowing for more egregious

neglect by psychiatric hospitals’ staff in getting someone their ballot.” Id. at 3.

Next, Mr. Gilbert asserts he has satisfied the causation prong of constitutional

standing because “there [are] facts that show a legal loss was had, where the law

gives the Plaintiff the right to vote and it was lost at the state’s doing.” Id. at 1. Mr.

Gilbert adds “[c]ausation was the fact that he was a patient, forced to be in Riverview

by the state and an election occurred in which he didn’t get his ballot as an outcome

when others did.” Id. “The state controlled everything having to do with the process

of getting a ballot,” he says. Id.

Turning to the Defendant’s argument that dismissal is warranted because Mr.

Gilbert failed to allege a plausible claim to relief, the Plaintiff responds “the state

says that the claim has no remedy, yet there is no case similar in violation;[ ]crime,

and it is not only a crime on the Plaintiff but also an election crime.” Id. Mr. Gilbert

asserts further that “[p]unitive damages should be awarded because the Bivens case

. . . gave a remedy due to the ‘importance of the right violated’ [and] [s]ince this is an

unprecedented case, the Plaintiff feels the Bivens case applies.” Id. at 2 (ellipsis and

emphasis in original) (referencing Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971)). Mr. Gilbert rejects Maine DHHS’s contention that punitive

damages are unavailable for a Title II violation because “[this case] is a completely

different violation in which a right to vote, and discrimination upon the Plaintiff

because he was exhibiting grievances for several days in regards to getting his ballot

so the staff ignored him,” and because “[a] compensatory damage here is not available

because there is no money lost with a lost vote.” Id. He urges the Court to award

him punitive damages as “an unprecedented remedy as the only means to assure it

does not occur again; deter.” Id. Continuing to address redressability, Mr. Gilbert

says:

Also, no one can assume the Plaintiff will not return to Riverview and

be subject to the same conditions and subject to the same discrimination.

The Plaintiff is 39 years old, been hospitalized 26 times, 8 times in

Riverview . . . so it is awfully bold to say that he will not be subject to

their care again. There is no way to predict the future.

Id. at 4 (Plaintiff’s ellipsis).

4. The Defendant’s Reply

Maine DHHS replies “Mr. Gilbert has still not alleged sufficient facts to

establish the redressability prong of Article III standing,” so as to make dismissal

under Rule 12(b)(1) or, alternatively, Rule 12(b)(6) appropriate. Def.’s Dismissal

Reply at 1-2. The Defendant construes the Plaintiff’s opposition to its motion to

dismiss as “admit[ting] that compensatory damages for ‘mental anguish’ are

unavailable, however, he now seeks compensatory damages for economic harm to the

public, punitive damages, and injunctive relief,” none of which the Defendant believes

are available to him under Title II. Id. at 1 (emphasis in original).

Maine DHHS alleges “Mr. Gilbert has not alleged any injury entitling him to

relief for compensatory damages,” where “he himself has not alleged how he has

suffered economic harm entitling him to relief.” Id. at 2-3 (emphasis in original)

(citing Pl.’s Dismissal Opp’n and Amend Reply). “[E]ven if he has alleged an injury

entitling him to relief, he has not even alleged ‘discriminatory intent,’ which would

entitle him to compensatory damage for economic harm,” id. at 3 (citing, e.g., Nieves-

Márquez, 353 F.3d at 126), and his unsupported assertion that he was not given his

ballot because he wanted to vote for Paul LePage should not change the Court’s

calculus, the Defendant maintains. Id.

The Defendant reasserts its arguments that punitive damages are unavailable

for a Title II violation, id. at 4 (collecting cases), and “Mr. Gilbert has still not alleged

facts demonstrating that he is entitled to injunctive relief.” Id. at 5.

Based on the foregoing, Maine DHHS urges the Court to grant its motion to

dismiss under either Rule 12(b)(1) or Rule 12(b)(6). Id.

C. Motion to Dismiss Legal Standard

1. Federal Rule of Civil Procedure 12(b)(1)

“A motion to dismiss an action under Rule 12(b)(1) . . . raises the fundamental

question whether the federal district court has subject matter jurisdiction over the

action before it.” United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n.6 (1st Cir.

2005) (internal citation omitted). “The burden falls on the plaintiff to clearly allege

facts demonstrating that he is a proper party to invoke federal jurisdiction.” Dubois

v. U.S. Dep’t of Agric., 102 F.3d 1273, 1281 (1st Cir. 1996) (citation and internal

quotation marks omitted); see also Me. Council of the Alt. Salmon Fed’n v. Nat’l

Marine Fisheries Serv., 203 F. Supp. 3d 58, 75 (D. Me. 2016) (“The plaintiff, as the

party asserting subject matter jurisdiction, has the burden of demonstrating its

existence”); Fábrica de Muebles J.J. Álvarez, Incorporado v. Inversiones Mendoza,

Inc., 682 F.3d 26, 33-34 (1st Cir. 2012) (“The party asserting jurisdiction has the

burden of demonstrating the existence of federal jurisdiction”). In ruling on a Rule

12(b)(1) motion, the Court “must construe the complaint liberally, treating all well-

pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff.”

Aversa v. United States, 99 F.3d 1200, 1209-10 (1st Cir. 1996). “If the Court

determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action.” FED. R. CIV. P. 12(h)(3).

2. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a complaint that

“fail[s] to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). To

state a claim, a complaint must contain, at minimum, “a short and plain statement

of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). In

other words, a complaint must contain “sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible when “the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). Plausible means “‘something more

than merely possible’ or ‘merely consistent with a defendant’s liability.’”

Germanowski v. Harris, 854 F.3d 68, 71-72 (1st Cir. 2017) (internal citation omitted)

(quoting Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.

2012)); Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 11 (1st Cir. 2011) (quoting

Iqbal, 556 U.S. at 678). Evaluating the plausibility of a claim is a “‘context-specific’

job that compels [judges] ‘to draw on’ [their] ‘judicial experience and common sense.’”

Schatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679).

This is a “two-step analysis.” Cardigan Mountain Sch. v. N.H. Ins. Co., 787

F.3d 82, 84 (1st Cir. 2015). “First, the court must distinguish ‘the complaint’s factual

allegations (which must be accepted as true) from its conclusory legal allegations

(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)); accord Schatz, 669 F.3d at 55 (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”). “Second, the court must determine whether the

factual allegations are sufficient to support ‘the reasonable inference that the

defendant is liable for the misconduct alleged.’” García-Catalán, 734 F.3d at 103

(quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)).

D. Motion to Dismiss Discussion

1. Federal Rule of Civil Procedure 12(b)(1)

Maine DHHS argues that the relief Mr. Gilbert seeks is unavailable under

Title II and, therefore, the Plaintiff has not met his burden to establish he has

standing to bring his claim. The thrust of Mr. Gilbert’s opposition is that he believes

his arguments are unprecedented and, thus, the Court should award him equally

novel relief.

As an application of the United States Constitution’s limitation of the Article

III courts’ jurisdiction to “Cases” and “Controversies,” U.S. CONST. art. III, § 2, cl. 2,

the United States Supreme Court has developed the doctrine of constitutional

standing. In Lujan v. Defenders of Wildlife, the Supreme Court elucidated the

“irreducible constitutional minimum of standing” that a party invoking federal

jurisdiction must establish: (1) an injury in fact that is concrete and particularized,

and actual or imminent; (2) a causal connection between the injury and conduct

complained of; and (3) a likelihood that the court could redress the injury with a

favorable decision. Lujan, 504 U.S. at 560-61.

Maine DHHS’ motion to dismiss focuses on the third prong: redressability. The

question for the Court is thus whether Title II of the ADA permits recovery of Mr.

Gilbert’s sought relief. As an initial matter, the Defendant construes Mr. Gilbert’s

complaint as seeking three kinds of relief: compensatory damages, punitive damages,

and an injunction. The Court agrees with the Defendant that Mr. Gilbert seeks

punitive damages and injunctive relief. See Am. Compl. at 2 (“So in my statement

about relief I wanted to make sure, through punitive damages . . . that not getting

civil inpatients their ballots at any psychiatric institution in America is grounds for

a $3,000,000 penalty. That’s what I intended with a punitive damage. What Nivison

calls an injunction is that I want all civil inpatients to receive their ballot and

consistently be able to vote or a penalty is had”).

However, the Court is not so convinced that Mr. Gilbert’s amended complaint,

or his original complaint, requests compensatory damages. See Compl. at 7 (“No

physical injuries. Mental injuries, yes, were had. Mental angst is what I felt[,] and

contempt. It was especially upsetting to be in a state run hospital and see such a

failure. In relief I seek [$]3,000,000 in punitive damages and some sort of remedy to

the problem of not getting civil in-patients their ballot that’s to the plaintiff’s liking”).

His opposition to the motion to dismiss further states “[a] compensatory damage here

is not available because there is no money lost with a lost vote . . .. [t]he only thing

left is a punitive damage.” Pl.’s Dismissal Opp’n and Amend Reply at 2.

Nevertheless, select compensatory damages are available under Title II for

non-economic harm and, consistent with the First Circuit’s repeated instruction to

district courts reviewing pro se filings to do so liberally, as well as the Defendant’s

reading of the Plaintiff’s filings, the Court construes Mr. Gilbert’s amended complaint

as also seeking compensatory damages for alleged “[m]ental injuries” and “[m]ental

angst.” Compl. at 7; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating that

pro se complaints are “to be liberally construed”).

Thus, the Court considers whether Mr. Gilbert’s alleged injuries could

plausibly be redressed through punitive damages, injunctive relief, or compensatory

damages.

a. Punitive Damages

First, “[p]unitive damages are clearly not available on . . . [a] Title II claim.”

Nieves-Marquez, 353 F.3d at 126 (citing Barnes, 536 U.S. at 189). Insofar as Mr.

Gilbert seeks punitive damages to redress his alleged Title II injury, this is

unavailing.

b. Injunctive Relief

Mr. Gilbert also seeks some form of injunctive relief. In his recommended

decision, the Magistrate Judge determined injunctive relief was unavailable to Mr.

Gilbert because “Plaintiff is no longer at Riverview and has not alleged that he will

be again, the complaint does not ‘establish a real and immediate threat’ that Plaintiff

will again suffer the same harm,” and “[w]ithout establishing a threat of future harm,

a hypothetical claim for prospective relief . . . would fail.” Rec. Dec. at 5. Mr. Gilbert

responded to this point in his opposition to the Defendant’s motion to dismiss:

[N]o one can assume the Plaintiff will not return to Riverview and be

subject to the same conditions and subject to the same discrimination.

The Plaintiff is 39 years old, been hospitalized 26 times, 8 times in

Riverview . . . so it is awfully bold to say that he will not be subject to

their care again. There is no way to predict the future.

Pl.’s Dismissal Opp’n and Amend Reply at 4 (ellipsis in original).

The Magistrate Judge is, of course, correct that “[p]ast injury, in and of itself,

‘is insufficient predicate for equitable relief.’” Gray, 917 F.3d at 19 (quoting Am.

Postal Workers Union, 968 F.2d at 1376). “To have standing to pursue injunctive

relief, a plaintiff must ‘establish a real and immediate threat’ resulting in ‘a sufficient

likelihood that []he will again be wronged in a similar way.” Id. (quoting Am. Postal

Workers Union, 968 F.2d at 1376 (in turn quoting Lyons, 461 U.S. at 109); and citing

Updike v. Multnomah Cnty., 870 F.3d 939, 948 (9th Cir. 2017), cert. denied sub

nom. Multnomah Cnty. v. Updike, 586 U.S. 814 (2018) (finding that ADA plaintiff

“lack[ed] standing to pursue his claims for injunctive relief”) (citation

amended); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st Cir.

2003) (requiring a “real and immediate threat of ongoing harm” for injunctive

relief in ADA case)). This required showing corresponds with the axiomatic need, in

the context of injunctive relief more generally, for a plaintiff to show that an

injunction is necessary to prevent irreparable harm. See Nat’l Tank Truck Carriers,

Inc. v. Burke, 608 F.2d 819, 824 (1st Cir. 1979).

The Court concludes Mr. Gilbert has not met this bar because he has failed to

establish that he faces a “real and immediate threat of ongoing harm.” See Gray, 917

F.3d at 19. First, Mr. Gilbert is not currently an inpatient at Riverview, and it is

insufficient that the Plaintiff believes he may hypothetically return to Riverview at

some unspecified point in the future based on precedent and because “[t]here is no

way to predict the future.” Pl.’s Dismissal Opp’n and Amend Reply at 4. At bottom,

Mr. Gilbert’s speculation does not evidence a “real and immediate” threat. See Gray,

917 F.3d at 19.

Second, even if Mr. Gilbert had made this showing, he would still need to

demonstrate “‘a sufficient likelihood that []he will again be wronged in a similar way.”

Id. (emphasis supplied by the Court). Analyzing a similar claim in Gray, the First

Circuit concluded the plaintiff “cannot clear this hurdle” because “[w]hen all is said

and done, it is not enough for [the plaintiff] to show that because she has bipolar

disorder, she is likely to encounter the police again. She must show that she is likely

to be tased once more . . . and she has not managed any such showing.” Id. (citing

Lyons, 461 U.S. at 105-06). The same is true here: Mr. Gilbert has not pleaded, and

the Court cannot reasonably infer, that there is “a sufficient likelihood” he will again

be a civil inpatient at Riverview, during an election, for which he requests and does

not receive a ballot, and thus is deprived of his right to vote. Id.

In sum, the Court concludes injunctive relief is unavailable to Mr. Gilbert on

his Title II claim.

c. Compensatory Damages

The availability of compensatory damages for non-economic harm presents a

more challenging question. In Gebser v. Lago Vista Independent School District, 524

U.S. 274 (1998), the United States Supreme Court ruled that a school district could

not be held liable under Title IX of the Education Amendments of 1972 “unless an

official who at a minimum has authority to address the alleged discrimination and to

institute corrective measures on the [district]’s behalf has actual knowledge of

discrimination.” Gebser, 524 U.S. at 290. Two decades later, the First Circuit

observed “[w]hether the rationale of Gebser should be extended to insulate public

entities from liability under Title II of the ADA on a theory of respondeat superior is

an open question.” Gray v. Cummings, 917 F.3d 1, 17 (1st Cir. 2019) (comparing

Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001) (stating that “public

entity is liable for the vicarious acts of its employees” under Title II) with Liese v.

Indian River Cnty. Hosp. Dist., 701 F.3d 334, 348-49 (11th Cir. 2012) (finding no

respondeat superior liability under section 504 of the Rehabilitation Act in light of

Gebser)). The First Circuit in Gray determined “[f]or present purposes, it is sufficient

for us to assume, favorable to [the plaintiff], that the Town could be held vicariously

liable under Title II for [the defendant’s] actions.” Id. This Court adopts that

approach here. See Def.’s Mot. to Dismiss at 1-11.

The next question, which the Gray Court also addressed, is whether a showing

of deliberate indifference is enough to support recovery of compensatory damages

under Title II. Gray, 917 F.3d at 17. “Since a plaintiff must show ‘intentional

discrimination’ on the part of the public entity to be eligible for damages on a Title II

claim, some uncertainty exists as to whether ‘deliberate indifference’ is the functional

equivalent of ‘intentional discrimination.’” Id. (citing Nieves-Marquez, 353 F.3d at

126). The Supreme Court has held that private individuals may recover

compensatory damages under Title II only for intentional discrimination. Alexander

v. Sandoval, 532 U.S. 275, 280-81 (2001). The First Circuit in Nieves-Marquez

observed that while “[o]ther courts are divided over whether compensatory damages

under . . . Title II include damages for emotional harm or pain and suffering . . ..

[t]his court held that such damages were not available when there was no evidence

of economic harm or animus toward the disabled, but left open the question of

whether such damages could be available in other circumstances.” Nieves-Marquez,

353 F.3d at 126-27 (citing Schultz v. Young Men’s Christian Ass’n of U.S., 139 F.3d

286, 290-91 (1st Cir. 1999)).

The First Circuit observed in Gray that other federal circuit courts have

concluded that a showing of deliberate indifference may suffice to prove this element,

“[b]ut the question is open in this circuit, and we have stated that, ‘under Title II,

non-economic damages are only available when there is evidence ‘of economic harm

or animus towards the disabled.’” Gray, 917 F.3d at 17 (quoting Carmona-Rivera v.

Puerto Rico, 464 F.3d 14, 17 (1st Cir. 2006) (in turn quoting Nieves-Marquez, 353 F.3d

at 126-127)). “Proof of ‘deliberate indifference’ does not require ‘a showing of personal

ill will or animosity toward the disabled person.’” Leclair v. Mass. Bay Transp. Auth.,

300 F. Supp. 3d 318, 326 (D. Mass. 2018) (quoting Meagley v. City of Little Rock, 639

F.3d 384, 389 (8th Cir. 2011)). The test for deliberate indifference has two prongs:

(1) “knowledge that a harm to a federally protected right is substantially likely,” and

(2) “a failure to act upon that . . . likelihood.” Id. (quoting Barber v. Colo. Dep’t of

Revenue, 562 F.3d 1222, 1228-29 (10th Cir. 2009)). Proof of “discriminatory animus,”

by contrast, requires a showing that the defendant intentionally discriminated

against the plaintiff based on his disability. Id. (citing Liese v. Indian River Cnty.

Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012) (“Discriminatory animus . . . requires

a showing of prejudice, spite, or ill will”)).

In Gray, the First Circuit did not purport to definitively resolve the question of

whether “deliberate indifference” suffices to establish intentionality, but concluded

“[f]or present purposes, it is sufficient to assume, favorably to [the plaintiff] that

deliberate indifference is the appropriate standard.” Gray, 917 F.3d at 17. In light

of the substantial similarities between Gray and the case at bar, this Court follows

the Gray Court’s determination that deliberate indifference establishes intentional

discrimination for the purposes of ruling on this motion to dismiss and thus considers

whether Mr. Gilbert’s amended complaint plausibly pleads that the Defendant was

deliberately indifferent to the Plaintiff’s asserted rights.

Here, Mr. Gilbert’s amended complaint, the facts of which the Court accepts as

true for purposes of ruling on the motion to dismiss, says that he was a civil inpatient

at Riverview around the time of the November 2022 election and “followed a

presented process to obtain [his] ballot . . . but the process apparently fell apart.” Am.

Compl. at 1, 3. Ahead of election day, the Plaintiff “spoke to everyone [he] could see

behind the huge desk on the unit . . . [including] ‘mental health workers’ . . .. [who]

“are suppose[d] to communicate things to others within who are not at the desk.” Id.

at 1. Mr. Gilbert believes everyone on the unit and all the staff knew he did not have

his ballot before the election. Id. He asked the mental health workers behind the

desk, advocates, and his doctor, and “asked as much as anyone could ask, of the

employees on the unit, . . . even ask[ing] contracted non-state paid people who worked

on the unit.” Id. He made these requests “well in advance of the election” and “was

very outspoken on what occurred to [him].” Id. at 1, 2. When the November 2022

election came, Mr. Gilbert did not have his ballot and was thus unable to vote. Id.

For purposes of ruling on the motion to dismiss, the Court concludes Mr.

Gilbert has established discriminatory intent by virtue of deliberate indifference to

his asserted rights. As the First Circuit held in Nieves-Marquez, “the plaintiffs clear

this hurdle because the complaint, with all reasonable inferences drawn in its favor,

alleges intentional discrimination. The defendants deny that there was any wrongful

intent, but at this stage, we must credit the pleadings.” 353 F.3d at 126.

Concluding Mr. Gilbert’s Title II claim may be redressable through

compensatory damages, the Court does not grant the Defendant’s motion to dismiss

the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1).

2. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a complaint that

“fail[s] to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).

Here, Maine DHHS’s argument for dismissal pursuant to Rule 12(b)(6) mirrors its

argument for dismissal under Rule 12(b)(1) by asserting Mr. Gilbert’s alleged lack of

standing, briefly stating “[a]s shown above, because no relief is available to Mr.

Gilbert, the Court should dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).”

Def.’s Mot. to Dismiss at 9.

Having already concluded Mr. Gilbert has plausibly shown his Title II claim is

redressable and that he has standing to proceed on this claim for the reasons already

explained, the Court concludes the Defendant’s motion to dismiss pursuant to Rule

12(b)(6) is unavailing for the same reasons. The Court thus dismisses the Defendant’s

motion to dismiss Mr. Gilbert’s Title II claim under Rule 12(b)(6).

III. DUSTIN GRAHAM GILBERT’S MOTION TO AMEND

A. The Parties’ Positions on the Motion to Amend

1. The Plaintiff’s Motion to Amend

Mr. Gilbert moves to amend his complaint for the second time to add a First

Amendment violation pursuant to 42 U.S.C. § 1983. He explains: “[o]riginally the

Plaintiff only felt his right to vote was a symbol of speech, but after further review . .

. he feels a symbol of speech is also speech . . . and that it too has the same power—if

not more.” Pl.’s Mot. to Amend at 1 (Plaintiff’s ellipses).

Turning to his legal argument, Mr. Gilbert contends “[u]nder U[.]S[.] Code 42,

Section 19[83], state employees acting under color of state law can[]not violate civil

rights and not be liable.” Id. In the instant case, he says, “so many state employees

were notified the Plaintiff did not have his ballot, and so many exhibited neglect—

that the state entity is more practical to hold liable.” Id. “This is a 1[]st Amendment

violation and the state can[]not fall back on the 11th Amendment to protect itself,”

he concludes. Id.

Mr. Gilbert argues that “the court should allow this Amendment thus far into

the proceedings under Federal Rule of Civil Procedure 15, due to that when the

Amendment is for the betterment of justice, it should be allowed.” Id. He

characterizes it as a “mistake” that he left the First Amendment claim out of his

original complaint, but says “the Pro Se Plaintiff has had a hard time in life with

being fair to a fault,” adding “[t]he Plaintiff simply was trying to not go over the top

with his claims initially.” Id.

2. The Defendant’s Opposition

Maine DHHS opposes the motion to amend “because Mr. Gilbert does not have

standing to pursue his claims and he has failed to state a claim upon which relief can

be granted.” Def.’s Opp’n to Mot. to Amend at 1 (citing FED. R. CIV. P. 12(b)(1), (6)).

The Defendant contends it is immune from Mr. Gilbert’s proposed additional First

Amendment claim, “thus making any amendment to the Complaint futile,” for two

reasons: “(1) a Section 1983 claim against DHHS, an arm of the State of Maine, would

be barred by sovereign immunity, and (2) DHHS is not a ‘person’ that is subject to

suit under Section 1983.” Id. at 3.

On its first ground, the Defendant begins by collecting caselaw from the United

States Supreme Court and the First Circuit establishing that the Eleventh

Amendment bars suits against states in federal court unless the state has waived its

immunity or Congress has explicitly abrogated the State’s sovereign immunity. Id.

at 3-4 (collecting cases). Maine DHHS asserts “[s]tates and their agencies are entitled

to sovereign immunity ‘regardless of the relief sought,’” id. at 3 (quoting Poirier v.

Mass. Dep’t of Corr., 558 F.3d 92, 97 (1st Cir. 2009)), and “[t]his immunity extends to

any entity that is an ‘arm of the state.’” Id. (quoting Wojcik v. Mass. State Lottery

Comm’n, 300 F.3d 92, 99 (1st Cir. 2002)).

Here, Maine DHHS argues it is an arm of the state whose purpose is to “provide

health and human services to the people of Maine,” and other courts in this District

have dismissed § 1983 claims against it upon concluding it is immune from suit in

federal court. Id. at 4 (citing Ross v. Polky, No. 2:24-cv-00057-LEW, 2024 U.S. Dist.

LEXIS 191381 (D. Me. Oct. 22, 2024) (citation amended); 22-A M.R.S. §§ 201-02

(2019)). The Defendant argues further that Congress, in enacting § 1983, did not

abrogate the states’ sovereign immunity. Id. (citing Quern v. Jordan, 440 U.S. 332,

345 (1979); Maysonet-Robles v. Cabrero, 323 F.3d 43, 54 (1st Cir. 2003)). Maine

DHHS continues that “Maine has expressly refused to waive its Eleventh

Amendment protections,” and “Mr. Gilbert has not alleged any facts that would show

that DHHS has waived its sovereign immunity.” Id. at 5 (citing 14 M.R.S. § 8118

(2003); Ross, 2024 U.S. Dist. LEXIS 191381).

Turning to its second alleged basis for dismissal, Maine DHHS asserts that

“[e]ven if sovereign immunity did not bar Mr. Gilbert’s proposed Section 1983 claim,

DHHS is not a ‘person’ that is subject to suit under Section 1983,” such that the

Plaintiff’s motion to amend is futile. Id. at 5. The Defendant says further that the

Supreme Court and First Circuit have held that a state and its agencies are not

“persons” for purposes of 42 U.S.C. § 1983. Id. (citing Brown v. Newberger, 291 F.3d

89, 92 (1st Cir. 2002); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).

For these two reasons, Maine DHHS urges the Court to deny Mr. Gilbert’s

motion to amend his complaint.

3. The Plaintiff’s Reply

Mr. Gilbert briefly replies to the Defendant’s opposition:

Regarding the Section 1983 claim, the State can[]not claim sovereign

immunity because they are a corporation, making them a “person[.”]

They are a corporation in which the state, and the arms of it, are subject

to laws surrounding each individual’s rights. (Maine became

“incorporated” in 1820, and is a corporation where they can own

property, contract and sue/be sued.) The state had a duty and failed to

carry out the law; administer a ballot. This is not futile because of the

state’s tort[i]ous actions and omissions.

Pl.’s Dismissal Opp’n and Amend Reply at 2.

B. Motion to Amend Legal Standard

Federal Rule of Civil Procedure 15 concerns amended and supplemental

pleadings. FED. R. CIV. P. 15. Rule 15 allows that “[a] party may amend its pleading

once as a matter of course” within twenty-one days after service or, if the pleading is

one to which a responsive pleading is required, twenty-one days after service of a

responsive pleading or a motion under Rule 12(b), (e), or (f), whichever is earlier. FED.

R. CIV. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the

opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2).

Although “[t]he court should freely give leave [to amend] when justice so

requires,” id., “this does not mean . . . that a trial court must mindlessly grant every

request for leave to amend.’ Indeed, ‘a district court may deny leave to amend when

the request is characterized by undue delay, bad faith, futility, [or] the absence of due

diligence on the movant’s part.’” Universal Trading & Inv. Co. v. Bureau for

Representing Ukrainian Ints. in Int’l & Foreign Cts., 87 F.4th 62, 80 (1st Cir.

2023) (internal citation omitted) (quoting Nikitine v. Wilmington Tr. Co., 715 F.3d

388, 390 (1st Cir. 2013)); accord Foman v. Davis, 371 U.S. 178, 182 (1962). “So, too,

the court may deny the request if the proposed amendment ‘would serve no useful

purpose.’” Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 20 (1st Cir.

2013) (quoting Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006)).

In determining whether to grant a motion for leave to amend, a district court

is given broad discretion, Foman, 371 U.S. at 182, and “must consider the totality of

the circumstances.” Nikitine, 715 F.3d at 390. The First Circuit has recognized that

district court judges have “‘great latitude’ over case-management functions

under Rule 16(b).” O’Brien v. Town of Bellingham, 943 F.3d 514, 528 (1st Cir. 2019)

(quoting Jones v. Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. 1993)).

C. Motion to Amend Discussion

1. Applicable Standard of Review

The Court first takes a moment to review the procedural history in this case to

determine which provision of Rule 15 applies to Mr. Gilbert’s motion. On November

1, 2024, Mr. Gilbert filed a complaint against Maine DHHS, alleging a Fifteenth

Amendment violation. Compl. The Magistrate Judge recommended the Court

dismiss Mr. Gilbert’s complaint on December 9, 2024, Rec. Dec., and on December 19,

2024 and December 23, 2024, Mr. Gilbert filed an objection as well as several

attachments in which he raised new claims under Article I of the United States

Constitution and the ADA, which did not appear in his complaint. Pl.’s Obj.;

Additional Attachs.

This Court issued an order addressing the Recommended Decision and the

Plaintiff’s objections on December 30, 2024. Order on Rec. Dec. and Obj. In that

order, the Court wrote, 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; accord 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 in its December 30, 2024

order exercised its discretion to 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, 551 U.S. at 94). The Court affirmed the

Magistrate Judge’s recommendation to dismiss the Plaintiff’s Fifteenth Amendment

claim and concluded the Article I claim raised for the first time in the objection was

unavailing and ordered it dismissed but allowed the newly raised ADA claim to

continue. Order on Rec. Dec. and Obj. at 1.

Then, on February 20, 2025, Mr. Gilbert filed a motion to amend his complaint

a second time, now to bring a First Amendment violation pursuant to 42 U.S.C. §

1983. Mot. to Amend. The Defendant, on March 3, 2025, opposed Mr. Gilbert’s motion

to amend on the ground that permitting amendment would be futile because it fails

to state a claim upon which relief could be granted. Def.’s Opp’n to Mot. to Amend. at

2 (collecting cases).

The question for the Court is whether, in reviewing Mr. Gilbert’s pending

motion to amend, he is entitled to amend his complaint as of right, or whether he may

amend only with the opposing party’s consent or the court’s leave. Compare FED. R.

CIV. P. 15(a)(1) with FED. R. CIV. P. 15(a)(2). Mr. Gilbert filed his second amended

complaint on February 20, 2025, before the Defendant filed its motion to dismiss on

March 3, 2025, and twenty-one days after the Defendant agreed to accept service on

January 30, 2025. He thus moved to amend within twenty-one days of service. FED.

R. CIV. P. 15(a)(1)(A). However, as previously noted, the Court has treated Mr.

Gilbert’s objection as an amended complaint because it raised novel claims not

included in his original complaint. Although Mr. Gilbert did not file a motion to

amend, the Court, being of a practical mind, has construed the objection as an

amended complaint filed as of right under Rule 15(a) which superseded and replaced

the original complaint. FED. R. CIV. P. 15(a)(1); see also ConnectU LLC v. Zuckerberg,

522 F.3d 82, 91 (1st Cir. 2008) (“An amended complaint, once filed, normally

supersedes the antecedent complaint . . .. Thereafter, the earlier complaint is a dead

letter and ‘no longer performs any function in the case’”) (citing InterGen N.V. v.

Grina, 344 F.3d 134, 145 (1st Cir. 2003); quoting Kolling v. Am. Power Conversion

Corp., 347 F.3d 11, 16 (1st Cir. 2003)). If the Court had not treated Mr. Gilbert’s

objection as an amended complaint, Local Rule 72(a) would have directed the Court

to dismiss his complaint for the reasons explained above.

The Court concludes that Mr. Gilbert’s objection to the recommended decision

operates as his amended complaint, filed once as of right pursuant to Rule 15(a)(1),

and thus, to amend his complaint for a second time, Mr. Gilbert “may amend . . . only

with the opposing party’s written consent or the court’s leave.” FED. R. CIV. P.

15(a)(2). While Rule 15 instructs that courts “should freely give leave [to amend]

when justice so requires,” id., “this does not mean . . . that a trial court must

mindlessly grant every request for leave to amend.’” Universal Trading & Inv. Co.,

87 F.4th at 80. Moreover, “[t]he Court must deny a motion to amend as futile if the

‘complaint, as amended, could not withstand a motion to dismiss.’” Fannie Mae v.

Wilson, No. 2:18-cv-00366-JAW, 2019 U.S. Dist. LEXIS 72293, at *7 (D. Me. Apr. 30,

2019) (quoting Shannon v. Houlton Band of Maliseet Indians, 54 F. Supp. 2d 35, 38

(D. Me. 1999)).

The Court proceeds to consider the merits of the Defendant’s contention that

Mr. Gilbert’s motion to amend should be denied because the contents of the proffered

amendment would be futile. Specifically, Maine DHHS argues Mr. Gilbert’s

contemplated § 1983 claim is barred by sovereign immunity, and, further, that § 1983

does not provide a pathway to relief because Maine DHHS is not a “person” subject

to suit under that statute.

2. Sovereign Immunity

The Supreme Court has interpreted the Eleventh Amendment to deprive the

federal courts of subject matter jurisdiction over suits by any citizen against any

state. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). This immunity

extends to agencies under state control. P.R. Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139, 144 (1993).

Maine DHHS is a “cabinet-level department” whose mission is “to provide

health and human services to the people of Maine.” 22-A M.R.S. §§ 201-02. This

District has previously held “because [Maine] DHHS is a governmental entity and ‘an

arm of the State’ of Maine,” it is entitled to Eleventh Amendment immunity “unless

the State has done something to waive it.” Ross, 2024 U.S. Dist. LEXIS 191381, at

*4 (quoting Hill-Spotswood v. Mayhew, No. 14-cv-00206-GZS, 2015 U.S. Dist. LEXIS

1009, at *16 (D. Me. Jan. 29, 2015)); id. at *3 (“Plaintiff’s § 1983 claim against [Maine]

DHHS resolves readily under Rule 12(b)(1) based on sovereign immunity”). Mr.

Gilbert’s assertion that Maine DHHS is in fact a corporation because the state of

Maine was allegedly “incorporated” in 1820 does not sway the Court from this clear

precedent to the contrary. Pl.’s Dismissal Opp’n and Amend Reply at 2. The Court

concludes Maine DHHS is an agency of the state of Maine, and for Eleventh

Amendment purposes a suit against Maine DHHS is a suit against the State. See

P.R. Aqueduct & Sewer Auth., 506 U.S. at 144.

The Ex parte Young exception5 to the Eleventh Amendment for suits against

state officers in their official capacities does not extend to suits against state agencies.

Irizarry-Mora v. Univ. of P.R., 647 F.3d 9, 11 n.1 (1st Cir. 2011). Thus, Maine DHHS

cannot be sued directly unless it has waived its sovereign immunity or Congress has

unequivocally abrogated that immunity pursuant to § 5 of the Fourteenth

Amendment. Seminole Tribe of Fla., 517 U.S. at 55-56. Neither party proffers that

Congress has abrogated the state of Maine’s Eleventh Amendment immunity for civil

rights claims brought under 42 U.S.C. § 1983, or that the State has itself voluntarily

waived its immunity. Eleventh Amendment immunity is jurisdictional in nature,

5 “[T]he Ex parte Young exception applies only when individuals seek prospective relief against

a state official's ongoing violation of federal law.” Cotto v. Campbell, 126 F.4th 761 (1st Cir. 2025)

(citing Ex parte Young, 209 U.S. 123 (1908)).

and “absent waiver, neither a State nor its agencies acting under its control may be

subject to suit in federal court.” P.R. Aqueduct & Sewer Auth., 506 U.S. at 144.

3. 42 U.S.C. § 1983

The result is the same pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable.

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)). To maintain a claim under § 1983, a plaintiff must establish: “1) that the

conduct complained of has been committed under color of state law, and 2) that this

conduct worked a denial of rights secured by the Constitution or laws of the United

States.” Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999).

However, to state a valid claim under § 1983, a complaint must bring such

allegations against a “person” acting under color of state law. 42 U.S.C. § 1983. It is

well settled that neither a state nor its agencies are “persons” within the meaning of

§ 1983. See, e.g., Poirier, 558 F.3d at 97 & n.6; Will, 491 U.S. at 64, 70-71; Nieves–

Marquez, 353 F.3d at 124 (“No cause of action for damages is stated under 42 U.S.C.

§ 1983 against a state, its agency, or its officials acting in an official capacity”). As a

state agency, Maine DHHS is not a person for purposes of § 1983 and, consequently,

Plaintiff has failed to state a cognizable § 1983 claim against the Defendant. Mr.

Gilbert’s unsupported assertion that Maine DHHS is in fact a “person” within the

meaning of § 1983 because the state of Maine was “incorporated” in 1820 does not

change this well-established legal precedent.

The result would not be different even if the Court were to construe the

Plaintiff’s filings to include a request for prospective relief against a state official

rather than the state agency, because, as the Magistrate Judge insightfully stated in

his Recommended Decision, “the exception to [sovereign] immunity laid out in Ex

Parte Young, 209 U.S. 123 (1908), allows federal courts to grant prospective

injunctive relief to prevent a continuing violation of federal law, in part because a

suit challenging the constitutionality of a state official’s action in enforcing state law

is not one against the State.” Rec. Dec. at 4 (quoting Doe v. Shibinette, 16 F.4th 894,

903 (1st Cir. 2021) (internal quotation marks and modifications omitted)). Thus, the

Magistrate Judge determined that “[e]ven if Plaintiff had named a state official

rather than a state agency, and even if Plaintiff’s request for ‘some sort of remedy to

the problem of not getting civil in-patients their ballot that’s to the plaintiff’s liking’

(Complaint at 7) could be construed as a request for prospective injunctive relief,

because Plaintiff is no longer at Riverview and has not alleged that he will be again,

the complaint does not ‘establish a real and immediate threat’ that Plaintiff will again

suffer the same harm.” Id. The Magistrate Judge wrote that “[w]ithout establishing

a threat of future harm, a hypothetical claim for prospective relief capable of

surviving the doctrine of sovereign immunity would fail because the Court could not

find that Plaintiff has the requisite standing to obtain prospective relief.” Id. (citing

Lyons, 461 U.S. at 105). For the reasons already discussed in this order, and those

stated in the Recommended Decision, the Court agrees with the Magistrate Judge

that Mr. Gilbert does not have a pathway to relief under § 1983.

In sum, the Court agrees with the Defendant that Mr. Gilbert’s motion to

amend his complaint to add a claim pursuant to 42 U.S.C. § 1983 must be dismissed

as futile. Fannie Mae, 2019 U.S. Dist. LEXIS 72293, at *7 (“The Court must deny

a motion to amend as futile if the ‘complaint, as amended, could not withstand

a motion to dismiss’”). Here, Mr. Gilbert’s proposed § 1983 claim would be subject to

dismissal under Rule 12(b)(6) for failure to state a valid claim for relief, and

alternatively subject to dismissal under Rule 12(b)(1) for lack of jurisdiction. Ploss v.

Mass. Dep’t of State Police, Civ. Action No: 1:23-CV-13236-DLC, 2025 U.S. Dist.

LEXIS 50047, at *5 (D. Mass. March 19, 2025) (concluding dismissal of a First

Amendment claim in violation of 42 U.S.C. § 1983 against a state agency was

warranted under Rule 12(b)(6) and, alternatively, Rule 12(b)(1)). The Court

accordingly dismisses Mr. Gilbert’s motion to amend his complaint for the second

time to include a First Amendment claim.

IV. THE PLAINTIFF’S MOTION TO CONTINUE

A. Dustin Graham Gilbert’s Motion to Continue

As noted, while Mr. Gilbert’s motion to amend and the Defendant’s motion to

dismiss were still pending, the Plaintiff filed a motion to “continue this case . . . for

the reason of a Discovery request to the State.” Pl.’s Mot. to Continue at 1. Mr.

Gilbert’s motion says, in its entirety:

I, [t]he Plaintiff, ask the court to continue this case involving the State

not getting (me) the 2022 November election ballot []for the reason of a

Discovery request to the State.

The Discovery request asks the State to supply information surrounding

the staff working on the Lower Kennebec unit [at] the time the Plaintiff

was there in the fall of 2022.

There’s a request for the medical records of the Plaintiff from Riverview

for the time he was there as well.

This Motion to Continue should be granted based on the fact that the

Plaintiff feels the truth of what happened and the internal investigation

findings by Riverview do not align. With information of the staff and

from the staff, a new discovery could occur in regards to discrimination

based on the Plaintiff’s disability.

Id. at 1.

B. Discussion

By the Court’s reckoning, Mr. Gilbert’s self-titled motion to continue is, in

practical effects, a motion requesting an order of discovery and a motion to continue

the Court’s resolution of his case pending completion of such discovery. However, “a

plaintiff can open the door to discovery only if []he first alleges ‘enough fact[s] to raise

a reasonable expectation that discovery will reveal evidence’ of actionable

misconduct.” Parker v. Landry, 935 F.3d 9, 18 (1st Cir. 2019) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 556 (2007)). In other words, “a plaintiff must state a

plausible claim before []he can invoke a right to discovery.” Id.

Because the First Circuit has definitively held there is no automatic right to

discovery, the Court addresses Mr. Gilbert’s motion seeking such relief only after

reviewing his motion to amend and the Defendants’ motion to dismiss. This is for

several reasons. First, in regards the motion to dismiss, the Court is bound in ruling

on that motion to consider only the factual record presented in Mr. Gilbert’s amended

complaint, in the light most favorable to him, and Mr. Gilbert has argued in opposing

the motion to dismiss that the same amended complaint as it currently stands is

sufficient to defeat dismissal. The Court already concluded in this order that Mr.

Gilbert’s amended complaint does survive the Defendants’ motion to dismiss. Thus,

Mr. Gilbert’s request for discovery has no bearing on the Court’s determination of the

motion to dismiss.

Second, because “a plaintiff must state a plausible claim before []he can invoke

a right to discovery,” it would be “put[ting] the cart before the horse” to rule on the

motion to continue before addressing whether Mr. Gilbert’s proposed second amended

complaint states a “plausible claim.” See id. (citing García-Catalán v. United States,

734 F.3d 100, 105 (1st Cir. 2013)). Here, the Court denied Mr. Gilbert’s motion to

amend on the grounds that doing so would be futile.

Considering a similar scenario, the First Circuit held a plaintiff was not

entitled to discovery to bolster an amended complaint that did not plead “‘enough

fact[s] to raise a reasonable expectation that discovery will reveal evidence’ of

actionable misconduct.” Id. (quoting Twombly, 550 U.S. at 556). The Parker Court

explained, “[t]he assertion of a need for discovery does not trump the plausibility

requirement: a plaintiff must state a plausible claim before she can invoke a right to

discovery.” Id. Determining that the amended complaint in that case did not “set

forth facts sufficient to create a reasonable expectation that discovery would be

anything more than a shot in the dark,” the First Circuit concluded it would not

“unlock the doors of discovery.” Id. at 19 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

In line with this precedent, the Court reaches the same conclusion here.

Having already determined Mr. Gilbert’s First Amendment claim stated within his

second amended complaint does not plead a plausible claim to relief, the Court

determines he does not have the right to “unlock the doors of discovery.” Id. The

Court accordingly dismisses Mr. Gilbert’s motion to “continue this case . . . for the

reason of a Discovery request.” Pl.’s Mot. to Continue at 1.

V. CONCLUSION

The Court DISMISSES without prejudice Motion to Dismiss of Defendant

Department of Health and Human Services (ECF No. 17), Dustin Graham Gilbert’s

Motion to Amend (ECF No. 16), and Dustin Graham Gilbert’s Motion for Continuance

[B]ased on Discovery Request to the Defendant (ECF No. 22).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 15th day of April, 2025