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Perry v. Whitehead

United States District Court, N.D. West Virginia

January 25, 2018

JASON A. PERRY, Plaintiff,
v.
ROBERT WHITEHEAD; DON ZIELINSKY; CECILIA JANISZEWSKI, PrimeCare Medical Administrator; Dr. JERRY HAHN; JANE/JOHN DOE; JAMIE LEE, Defendants.

          (Judge Stamp)

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE.

         I. Procedural History

         On November 15, 2015, the pro se Plaintiff, a state inmate, initiated this case by filing a civil rights action pursuant to 42 U.S.C. § 1983. On November 6, 2015, the Plaintiff was granted leave to proceed in forma pauperis and was directed to pay an initial partial filing fee. ECF No. 6. The Plaintiff paid that fee on November 25, 2015. ECF No. 10. On July 1, 2016, the Plaintiff was granted leave to amend his complaint [ECF No. 15], and the Clerk of Court was directed to re-file the Plaintiff's original complaint as an amended complaint and insert within the same the proposed amendments attached to his motion. The amended complaint was docketed that same date. ECF No. 16. On March 17, 2017, the undersigned determined that summary dismissal was not appropriate, and an to Answer was entered which directed the Marshal Service to serve the Defendants with the amended complaint. ECF No. 30.

         On April 24, 2017, W.Va. Correctional Industries, Eddie Long, Robert Whitehead, Don Zielinsky, and Greg Gilli filed a Motion to Dismiss for Failure to State a Claim. ECF No. 41. On April 26, 2017, a Roseboro Notice was issued. ECF No. 42. On April 28, 2017, Defendants Cecilia Janiszewski and Jerry Hahn filed a Motion to Dismiss for Failure to State a Claim. ECF No. 44. A second Roseboro Notice was issued on May 1, 2017. ECF No. 46. On May 4, 2017, the Defendant, Jaimie Lee, filed a Motion to Dismiss for Failure to State a Claim. ECF No. 49. A third Roseboro Notice was issued on May 8, 2017. ECF No. 54. On June 5, 2017, the Plaintiff filed separate responses in opposition to each motion to dismiss. ECF Nos. 61-63. On June 7, 2017, Defendant Jaimie Lee filed a Reply [ECF No. 65] and on June 8, 2017, Defendants Greg Gilli, Eddie Long, W.Va. Correctional Industries, Robert Whitehead and Don Zielinski filed a reply. ECF No. 66. On November 6, 2017, Defendants Greg Gilli, Eddie Long and the W.Va. Correctional Industries filed a Stipulation of Dismissal signed by the Plaintiff. ECF No. 77. On November 13, 2017, the Honorable Frederick P. Stamp, Jr., United States District Judge, entered an Order approving the Stipulation of Dismissal and Defendants Eddie Long, Greg Gilli and the W.Va. Correctional Industries were dismissed with prejudice from the complaint. ECF No. 78. This case is now before the undersigned for a report and recommendation on the pending motions to dismiss.

         II. Contentions of the Parties

         A. The Amended Complaint (Complaint”)

         In his complaint, the Plaintiff raises four claims: (1) unsafe work environment; (2) hostile work environment based on sexual preference; (3) discrimination based upon retaliation; and (4) failure to provide proper medical care. Because the Plaintiff argues a violation of the equal protection clause based on sexual preference with respect to claims two and three, the undersigned has construed both as equal protection claims.

         With respect to his claim regarding an unsafe work environment, the Plaintiff alleges that on March 19, 2014 [ECF No. 16-3, at 2], while still on 30 days probation, he was asked by Defendant Zielinsky to operate a gold foil stamping machine which he had never operated before and on which he had never received a safety orientation training. ECF No. 16 at 9. The Plaintiff maintains that this press and others are old and outdated, and the safety features are broken and/or bypassed. Id. The Plaintiff indicates that he got four fingers caught in the machine. The Plaintiff contends that his “Constitutional Right to ‘Equal Protection' was violated due to the unsafe work environment [he] was subjected to.” Id.

         With respect to his claim for discrimination due to a hostile work environment based on sexual preference, the Plaintiff argues that his “Constitutional rights to ‘Equal Protection' and ‘Due Process of Law' were violated under Art. III sections 10 and 14 of the West Virginia Constitution, and the First and Sixth Amendment of the United States Constitution.” ECF No. 16 at 13. The Plaintiff indicates that he is serving a large sentence and in July of 2014, he accepted a key position in the Prison Industries which promoted top pay. The Plaintiff alleges that in September of 2014, Defendant Zielinsky told him that he would give him top pay Level 5 for the job he was doing. At the time, the Plaintiff maintains that he was at pay Level 3. The Plaintiff continues by noting that one morning, he asked Defendant Zielinsky to please cut back on the gay jokes and comments because he is gay. The Plaintiff indicates that he did not want to rock the boat or jeopardize losing his job, but the gay jokes and comments had become unbearable. The Plaintiff contends that in October, he went to pay Level 4, not a 5, as promised. When he approached Defendant Zielinski for an explanation, the Plaintiff alleges that he blamed Charleston. However, the Plaintiff maintains that other people received raises, and he realized that Defendants Zielinsky's and Whiteside's attitudes had completely changed the instant he told them that he was gay. Despite the fact that when other workers complained about pay issues or safety concerns, they were asked about the problems and asked to stay, the Plaintiff alleges that when he spoke about being unhappy, he only was asked to train someone before he left. The Plaintiff concludes this allegation by alleging that Defendant Zielinsky created a hostile and unbearable work environment for anyone with an alternative lifestyle. ECF No. 16 at 14.

         With respect to his third claim, discrimination based upon retaliation, the Plaintiff alleges that his “constitutional rights to ‘Equal Protection,' ‘Due Process of Law,' and ‘Cruel and unusual Punishment' were violated under ART. III sections 10, 14, and 5 of the West Virginia Constitution, and the First, Sixth, and Eighth Amendments of the United States Constitution.” ECF No. 16 at 15. The Plaintiff indicates that this claim is actually a continuation of his second claim, but he separated it to provide some clarity. In support of his third claim, the Plaintiff alleges that after filing “the grievance” and explaining his sexual orientation to stop the jokes and comments, things became tense in his work area. The Plaintiff continues that he received permission from Defendant Zielinsky to do a “canned” letter for some workers asking for a pay raise. The Plaintiff indicates that “[a]ll a person needed to do was to provide personal information into it.” Id. The Plaintiff alleges that on July 10, 2014, Defendant Whitehead “jumped” on him for not asking him first and said he did not like the letter. Then, on July 13, 2014, the Plaintiff contends that he was cleaning out his work area when Defendant Zielinsky walked by and gave him permission to throw away some things he no longer used. He then went to his housing unit for lunch, and when he returned, he was immediately called into Defendant Whitehead's office. The trash that he had thrown away was in the office, and he was asked who gave him permission to throw it away. The Plaintiff alleges that Defendant Zielinski was present but stood silent when he identified him as the individual who had authorized him to throw away things. The Plaintiff alleges that he was then given the opportunity to either resign or be fired and written up. The Plaintiff contends that these actions were clear retaliation for his complaints on the safety issues, the gay jokes and other discrimination issues.

         Finally with respect to his medical care[1], the Plaintiff alleges that after he injured his hand in the press, he was taken to medical and “left bleeding for five hours.” Afterword, PrimeCare's staff looked at his hand and x-rays were taken. ECF No. 16 at 9. The Plaintiff further alleges that a few days later, he lost a fingernail. He alleges that he was told that the bone was chipped in his right middle finger. He further alleges that a nurse told him to wait six months to a year to make sure the damage was not cosmetic. He maintains that over the course of time, three fingers healed but one did not. More specifically, he indicates that his right middle finger has no feeling in the end of it, and where he “starts getting feeling on both sides hurts constantly like a throbbing toothache.” Id. He claims that Dr. Hahn never treated his hands, and neither he nor Cecilia Janiszewski let him see a specialist for his hand. ECF No. 16 at 17. The Plaintiff contends that “[t]he pain and suffering I have may be long term and may have been prevented if treated early.” Id. He also alleges that Wexford took over running the medical department after PrimeCare left. He indicates that PrimeCare took all of the medical records when they left. He claims he was told he would see a doctor but never did. He also alleges that he stated that he needed a Certificate Merit or screening and still never saw a specialist. Finally, with respect to Jaimie Lee, he indicates that she “runs medical for Wexford and that is who would have gotten my letter and never let [him] see any one for pain or treatment.” Id.

         B. Motion to Dismiss by Robert Whitehead's and Don Zielinsky[2]

         With respect to his claim regarding an unsafe work environment, these Defendants assert that the Plaintiff is simply alleging a “run of the mill workplace negligence claim, ” and this Court does not have subject matter jurisdiction over such a claim. ECF No. 41-1 at 22. Moreover, these Defendants allege that even if this Court could exercise jurisdiction over this thinly veiled negligence claim, the named Defendants still would be entitled to qualified immunity with regard to this claim.

         In addition, these Defendants allege that the Plaintiff's claim of discrimination due to hostile work environment does not sufficiently plead any actionable claim. More specifically, these Defendants argue that the Plaintiff does not allege any right or entitlement to Level 5 pay. In addition, these Defendants maintain that the Plaintiff has failed to allege some form of disparate treatment between himself and one or more other inmates who were not in his alleged “protected” class. Id. at 5.

         Finally, with respect to his third claim[3], retaliatory discharge, these Defendants maintain that the Plaintiff has no constitutional right to be employed, let alone be employed in his position of choice. Therefore, these Defendants argue that the Plaintiff has no constitutional right or liberty interest in his job. Moreover, these Defendants argue that the Plaintiff seemingly admits that his conduct violated internal rules, and they contend that there does not appear to be any law governing their actions when deciding what is sufficient misconduct to remove an inmate from a specific employment position.

         C. Plaintiff's Opposition

         The Plaintiff first cites the well accepted principle that pleadings drafted by pro se litigants are held to a less stringent standard than of those drafted by an attorney, and the Court must liberally construe a pleading filed pro se. The Plaintiff than clarifies that although he asserted an “unsafe work environment” claim, he is in fact asserting a “deliberate indifference to a known risk of injury” due to these Defendants failure to properly train him in the operation of the equipment and their disregard to missing safety features. In addition, the Plaintiff argues that these Defendants are not entitled to qualified immunity. Finally, the Plaintiff alleges the Defendants discriminated and retaliated against him due to his homosexuality in violation of the Equal Protection Clause . The Plaintiff then argues that to state a claim for a violation of the Equal Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose to discriminate against him on the basis of his membership in a protected class. Citing Romer v. Evans, 517 U.S. 620, 631-36 (1996), the Plaintiff alleges that “homosexual persons or gays and lesbians” are protected from discrimination by the Equal Protection Clause of the Fourteenth Amendment. ECF No. 61-1 at 4. In the apparent alternative, the Plaintiff argues that where the challenged conduct does not involve a suspect classification, a plaintiff must show that similarly situated people were intentionally treated differently without a rational basis for the disparate treatment.

         D. Defendants' Reply

         Defendants Whitehead and Zielinsky note that in support of his claim based upon an “unsafe work environment, ” the Plaintiff's only allegation is that he was injured on a piece of machinery because he did not have sufficient training and/or because the machinery was “old and outdated, the safety features are broke and/or bypassed.” ECF No. 66 a 1. The Defendants than argue that despite his pro se status, the Court is not required to rewrite the complaint or invent allegations and/or claims that are not pleaded. They then note that the Plaintiff does not allege that anyone acted intentionally or even recklessly, and he does not allege that anyone knew about the alleged problem with the machinery or took any affirmative action to cause his injury. Accordingly, Defendants Whitehead and Zielinsky reiterate their position that the allegations surrounding this claim support a negligence claim at best. In addition, Defendants Whitehead and Zielinsky reiterate their argument in support of qualified immunity.

         With respect to his claim of discrimination due to hostile work environment, Defendants Whitehead and Zielinski argue that the Plaintiff fails to cite any law or precedent indicating that homosexuals are, in fact, a protected class. Furthermore, they note that his complaint does not allege that any similarly situated heterosexual inmates received the raise that he felt he should have been given. Accordingly, they argue that without being in a legally protected class and without alleging that he was treated differently than a similarly situated person, he simply has not asserted a viable discrimination claim.

         With respect to his retaliation claim, Defendants Whitehead and Zielinsky reiterate that as an inmate, the Plaintiff has no constitutional or any other right to be employed. They also note that the Plaintiff completely failed to address this issue.[4]

         E. Motion to Dismiss by Cecilia Janiszewski, R.N. and Jerry Hahn, M.D.

         These Defendants argue that the Plaintiff's claim with respect to his medical care does not meet the legal threshold for a viable Eighth Amendment claim. More specifically, these Defendants contend that the Plaintiff's allegations amount to no more than a disagreement with the professional judgment and course of treatment selected by the healthcare ...


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