United States District Court, N.D. West Virginia
JASON A. PERRY, Plaintiff,
W. VA. CORRECTIONAL INDUSTRIES, EDDIE LONG, ROBERT WHITEHEAD, DON ZIELINSKY, GREG GILLI, CECILIA JANISZEWSKI, DR. JERRY HAHN, JANE/JOHN DOE and JAMIE LEE, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT, DENYING MOTIONS IN LIMINE AND
MOTION TO AMEND/CORRECT CASE CAPTION AS MOOT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se plaintiff, Jason A. Perry
(“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. This 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. The magistrate judge
recommended that the motions to dismiss filed by the
defendants be granted and that the motion to dismiss filed by
defendants Robert Whitehead (“Whitehead”) and Don
Zielinsky (“Zielinsky”) (ECF No. 41) be granted
in part and denied in part.
specifically, the magistrate judge recommended that the
plaintiff's claims regarding an unsafe work environment
and failure to provide proper medical care be dismissed with
prejudice for failure to state a claim upon which relief may
be granted. The magistrate judge also found that
plaintiff's Claims 2 and 3 alleging violations of equal
protection should not be dismissed, and a scheduling order
should be entered.
Court entered a memorandum opinion and order affirming and
adopting the magistrate judge's report and recommendation
and overruling the plaintiff's objections. ECF No. 91.
This Court then entered a scheduling order as to
plaintiff's Claims 2 and 3 alleging violations of equal
protection by defendants Robert Whitehead
(“Whitehead”) and Don Zielinsky
(“Zielinsky”). ECF No. 92.
Whitehead and Zielinsky filed an answer (ECF No. 96) to the
plaintiff's amended complaint (ECF No. 16). Plaintiff
filed a letter motion requesting discovery production (ECF
No. 110) which this Court construed as a motion to compel and
referred to the magistrate judge (ECF No. 122). Defendants
then filed a motion for summary judgment (ECF No. 119) and
memorandum in support (ECF No. 120). Plaintiff filed a
response in opposition (ECF No. 121). The magistrate judge
then entered an order requiring defendants to produce all
discovery requests and responses (ECF No. 123) and
consequently granted the plaintiff's motion to compel in
part and denied the motion in part (ECF No. 134). Defendants
filed their reply to the plaintiff's response in
opposition to summary judgment (ECF No. 128) and the
plaintiff filed a sur-reply (ECF No. 133). Defendants then
filed a reply to the plaintiff's sur-reply (ECF No. 143).
This Court then entered an order directing the parties to end
briefing on the motion for summary judgment and extended the
non-expired scheduling order deadlines and trial 90 days.
Plaintiff then filed another response to defendants'
sur-reply (ECF No. 145).
contentions of the parties are now fully briefed and
defendants' pending motion for summary judgment (ECF No.
119) is ripe for disposition.
Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c). The party seeking summary judgment
bears the initial burden of showing the absence of any
genuine issues of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). This burden can be
met by showing that the nonmoving party has failed to prove
an essential element of the nonmoving party's case for
which the nonmoving party will bear the burden of proof at
trial. Id. at 322. If the moving party meets this
burden, according to the United States Supreme Court,
“there can be ‘no genuine issue as to any
material fact,' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323. “The burden then shifts to the
nonmoving party to come forward with facts sufficient to
create a triable issue of fact.” Temkin v.
Frederick County Comm'rs, 945 F.2d 716, 718 (4th
Cir. 1991), cert. denied, 502 U.S. 1095 (1992)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986)). However, as the United States Supreme
Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion
for summary judgment may not rest upon the mere allegations
or denials of his pleading, but . . . must set forth specific
facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256. “The inquiry
performed is the threshold inquiry of determining whether
there is the need for a trial-whether, in other words, there
are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be
resolved in favor of either party.” Id. at
250; see also Charbonnages de France v. Smith, 597
F.2d 406, 414 (4th Cir. 1979) (“Summary judgment
‘should be granted only in those cases where it is
perfectly clear that no issue of fact is involved and inquiry
into the facts is not desirable to clarify the application of
the law.'” (citing Stevens v. Howard D. Johnson
Co., 181 F.2d 390, 394 (4th Cir. 1950))).
Celotex, the Supreme Court stated that “the
plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S.
at 322. In reviewing the supported underlying facts, all
inferences must be viewed in the ...