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Perry v. W.Va. Correctional Industries

United States District Court, N.D. West Virginia

March 28, 2018

JASON A. PERRY, Plaintiff,



         The pro se[1] plaintiff, Jason A. Perry, filed this civil action asserting claims against the defendants under 42 U.S.C. § 1983. The case was referred to United States Magistrate Judge Robert W. Trumble under Local Rule of Prisoner Litigation Procedure 2. The defendants filed several motions to dismiss and the magistrate judge issued a report and recommendation (ECF No. 84) following the plaintiff's responses to the defendants' motions and defendants' replies. The magistrate judge recommended that the motion to dismiss filed by Robert Whitehead and Don Zielinsky (ECF No. 41) be granted, in part and denied in part. More specifically, the magistrate judge recommended that the plaintiff's claim one regarding an unsafe work environment be dismissed with prejudice for failure to state a claim upon which relief may be granted. The magistrate judge stated that to the extent that the plaintiff was attempting to include these defendants in his claim four, regarding medical care, the same should be dismissed against them. However, the magistrate judge stated that plaintiff's claims two and three alleging violations of equal protection should not be dismissed, and a scheduling order should be entered. In addition, the magistrate judge recommended that the motions to dismiss filed by defendants Jerry Hahn and Cecilia Janiszewski (ECF No. 44) and defendant Jamie Lee (ECF No. 49) be granted, and the claims against these three defendants be dismissed with prejudice for failure to state a claim upon which relief may be granted.

         The plaintiff then filed a reply and objections (ECF No. 86) to the report and recommendation and defendant Jamie Lee filed responses to the plaintiff's objections. ECF No. 89.

         For the following reasons, this Court affirms and adopts the magistrate judge's report and recommendation, overrules the plaintiff's objections, and will enter a scheduling order, by separate order, as to plaintiff's claims two and three alleging violations of equal protection by defendants Robert Whitehead and Don Zielinsky.

         I. Background

         The pro se plaintiff, Jason A. Perry, a state inmate, filed this civil rights matter pursuant to 42 U.S.C. § 1983 against the defendants raising 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.

         According to his complaint, the plaintiff alleges that, while working in the prison industries, 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. The plaintiff indicates that he got four fingers caught in the machine. Plaintiff contends that his “Constitutional Right to ‘Equal Protection' was violated due to the unsafe work environment [he] was subjected to.” With respect to his claim for discrimination due to a hostile work environment based on sexual preference, the plaintiff contends that because he asked defendant Zielinsky to “please cut back on the gay jokes and comments, ” because he is gay, he went to pay level 4 and not pay level 5 as previously promised. 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 and 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, 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. Plaintiff contends that retaliatory actions took place following his complaints on the safety issues, the gay jokes and other discrimination issues.

         Finally, with respect to his medical care, the plaintiff alleges that after he injured his hand in the press, he was taken to medical and “left bleeding for five hours.” Afterward, plaintiff alleges that PrimeCare's staff looked at his hand and x-rays were taken. ECF No. 16 at 9. The plaintiff further alleges that over the course of time, three fingers healed but one did not, and 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. Plaintiff also alleges that Wexford took over running the medical department after PrimeCare left and alleges that PrimeCare took all of the medical records when they left. Plaintiff claims he was told he would see a doctor but never did. With respect to defendant Jamie Lee, plaintiff 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.

          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. Although the motion to dismiss was also filed on behalf of W.Va. Correctional Industries, Eddie Long and Greg Gilli, they were dismissed as defendants pursuant to the stipulation of dismissal signed by the plaintiff (ECF No. 77) and approved by this Court. ECF No. 78. Accordingly, defendants Eddie Long, Greg Gilli and the W.Va. Correctional Industries were dismissed with prejudice from the complaint. Defendants Whitehead and Zielinsky 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. Defendants also state that the plaintiff's claim of discrimination due to hostile work environment does not sufficiently plead any actionable claim and that the plaintiff has no constitutional right to be employed, let alone be employed in his position of choice.

         Defendants Cecilia Janiszewski and Jerry Hahn filed a Motion to Dismiss for Failure to State a Claim. ECF No. 44. 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 professionals. Finally, these defendants allege that they are entitled to good faith qualified immunity.

         Defendant, Jamie Lee, filed a motion to dismiss for failure to state a claim. ECF No. 49. Defendant raises the affirmative defense of failure to exhaust and points to the fact that the administrative grievance was filed on May 5, 2015, and she was not employed as the medical director for Wexford until July 20, 2015. ECF No. 50 at 5-6. In addition, this defendant alleges that there is no specific allegation that she consulted with the plaintiff or provided any specific inadequate medical care or treatment to the plaintiff. Finally, this defendant alleges that the amended complaint does not contain sufficient facts to support a claim for relief under the Eighth Amendment for ineffective medical assistance due to deliberate indifference.

         Plaintiff filed separate responses in opposition to each motion to dismiss. ECF Nos. 61-63. In response to defendants Whitehead and Zielinsky, the plaintiff first cites the well accepted principle that the Court must liberally construe a pleading filed pro se. The plaintiff then 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. Plaintiff argues that these defendants are not entitled to qualified immunity and again alleges the defendants discriminated and retaliated against him due to his homosexuality in violation of the Equal Protection Clause. 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. 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. Alternatively, 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.

         Plaintiff filed a response to the motion to dismiss by Cecilia Janiszewski and Jerry Hahn. ECF No. 62. Plaintiff asserts that although he alleged a failure to provide proper medical care, his intent was to assert a claim for deliberate indifference to a serious medical condition/need. ECF No. 62-1 at 2. Plaintiff further asserts that these defendants have pointed out all of the necessary requirements for establishing a deliberate indifference, and he has alleged all of those requirements in his complaint by virtue of their actions or inactions after he was seriously injured and disabled by machinery at NCF Correctional Industries. Plaintiff maintains because defendants failed to treat his serious medical condition/need at the time of the injury or even refer him to a specialist who could possibly treat his injuries, defendants are either plainly incompetent or they knowing violated the law in regard to his serious medical condition/needs. In addition, given that the plaintiff argues that the notice of claim and screening certificate of merit requirements of the Medical Professional Liability Act as set forth in West Virginia Code § 55-7B-1 has no bearing on the instant action, it would appear that the plaintiff is withdrawing any assertion of medical negligence.

         The plaintiff's response to defendant Jaime Lee's motion to dismiss (ECF No. 63) is the same as his response to the motion ...

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