Peterson v. Burris et al

Filing 42

ORDER Sustaining In Part and Overruling In Part Plaintiff's 41 Objections, Accepting In Part and Rejecting In Part Magistrate's 40 Report and Recommendation, Denying Defendant's 22 Motion to Dismiss and Referring Matter to Magistrate Judge for Further Proceedings. Signed by District Judge Thomas L. Ludington. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ANGEL PETERSON,
Plaintiff,
v

Case No. 14-cv-13000
Honorable Thomas L. Ludington

ROCKY BURRIS, MICHIGAN STATE INDUSTRIES,
and MILLICENT WARREN,
Defendants.
__________________________________________/
ORDER SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF’S
OBJECTIONS, ACCEPTING IN PART AND REJECTING IN PART MAGISTRATE’S
REPORT AND RECOMMENDATION, DENYING DEFENDANTS’ MOTION TO
DISMISS AND REFERRING MATTER TO MAGISTRATE JUDGE FOR FURTHER
PROCEEDINGS
On July 31, 2014, Plaintiff Angel Peterson, a Michigan Department of Corrections
(“MDOC”) prisoner proceeding pro se filed a complaint under 42 U.S.C. § 1983 against Rocky
Burris, Michigan State Industries, and Millicent Warren alleging numerous violations of state
and federal law.

Peterson’s primary claim is that Defendants improperly terminated her

employment in the prison dental lab.
On December 23, 2014, Defendants filed a motion to dismiss the complaint, contending
that Peterson had not sufficiently alleged any specific action taken by any Defendant that
violated her rights. Plaintiff filed a response on December 24, 2014.
On May 21, 2015, the Magistrate Judge issued a report recommending that Peterson’s
complaint be summarily dismissed for failure to state a claim and that Defendants’ motion to
dismiss be denied as moot. Peterson filed timely objections.
Because Peterson has not sufficiently stated a claim for violation of procedural due
process, violation of the RLUIPA, and sexual harassment under federal law, these claims will be
summarily dismissed as recommended by the Magistrate Judge’s report. However, because

Peterson has sufficiently stated claims for deliberate indifference and violation of equal
protection, these claims will not be dismissed. And because two of Peterson’s federal claims
survive, her state law claims will not be dismissed.
I.
Peterson is an inmate at MDOC’s Women Huron Valley Complex.

Until her

employment was terminated, she worked in the Michigan State Industries’ dental lab. Peterson
alleges that there was “overfamiliarization” between her coworkers and the dental lab techniciansupervisor, Defendant Burris. Peterson explains that her coworkers would bring Burris coffee
every day, and even presented him with a hand-painted coffee mug.

Her coworkers also

purchased holiday cards and affectionate cards for him. Peterson did not participate in any of
these events: “It was not that I didn’t like him it was that my conscious does not allow me to
participate in holidays and things of that nature.” Objs. 2.
One day, while Burris was out to lunch, an inmate offered Peterson stolen lab equipment.
Peterson refused to accept the stolen equipment, and the inmate raised her hand in anger as if to
hit Peterson. The inmate did not actually hit Peterson, but Peterson reported the incident to
Burris when he returned. Instead of punishing the inmate, Peterson claims that Burris told her
that “You get under people’s skin.” Peterson claims that Burris did not punish the other inmate
due to their “overfamiliarization”.
Peterson also alleges that Burris improperly wrote her three counseling memos. The first
memo reprimanded her for arguing with a coworker on a day that Burris had been out on sick
leave: “In other words, Mr. Burris was not present when this alleged argument happened.”
Indeed, Peterson claims that the argument never took place, and therefore she was improperly
reprimanded.
On May 30, 2012, Peterson initiated a grievance regarding the two events, which was
rejected. Peterson appealed the rejection of her grievance.
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While the grievance appeal was pending, Peterson received another counseling memo for
leaving a critical tool out. Although Peterson asserts that it was unintentional, she concedes that
this second counseling memo was valid.
On August 27, 2012, Peterson received a third counseling memo for having a “poor
attitude.” During a particularly heavy rain, a hole in the MSI Dental Lab ceiling began leaking.
According to Peterson “[t]he conditions were so poor that some of the electricity to the lighting
was disconnected in order to prevent electrocution or any other accidents that could have
occurred because of the extreme leaking.” Compl. 7. Despite the danger, Burris did not allow
Peterson to move to another area. Instead, he permitted Peterson to move to a different seat
within the same area. Peterson, however, “was reluctant to move . . . for two (2) reasons: 1) She
was in possession of a critical tool . . . 2) The plaintiff’s negative history with Mr. Burris . . . .”
Compl. 7. As a result of Peterson’s reluctance to move seats, Burris wrote the third and final
counseling memo stating that Peterson had a “bad attitude.” Burris then terminated Peterson’s
employment.
Peterson then filed additional grievances and appeals, all of which were rejected. She
claims that despite exhausting all her administrative remedies, Defendants “have violated the
plaintiff’s constitutional rights by failing to address valid concerns that include but are not
limited to Mr. Burris’ ill will and retaliation against the plaintiff for questioning and reporting the
deplorable work conditions, which ultimately resulted in the plaintiff being wrongfully
terminated from employment in the MSI Dental Lab.” Compl. 9.
On July 31, 2014, Peterson filed suit in this Court, raising six claims: (1) Deliberate
Indifference in violation of the Eighth Amendment; (2) Equal Protection in violation of the Fifth
and Fourteenth Amendments; (3) Libel and Slander under Michigan law; (4) Religious
Discrimination in violation of the First and Fourteenth Amendments; (5) Sexual Harassment
under federal and state law; and (6) Procedural Due Process under the Fourteenth Amendment.
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On November 17, 2014, Peterson filed an “Amended Complaint” that added two Defendants to
the litigation: Michigan State Industries and Millicent Warrant, the warden. On May 21, 2015,
the Magistrate Judge issued a report recommending that Peterson’s complaint be summarily
dismissed for failure to state a claim.
II.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). If objections are
made, “[t]he district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). Objections must be stated with
specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). “Only those specific
objections to the magistrate’s report made to the district court will be preserved for appellate
review.” Carson v. Hudson, 421 F. App’x 560, 563 (6th Cir. 2011) (quoting Souter v. Jones, 395
F.3d 577, 585-86 (6th Cir. 2005)).
III.
Peterson raises numerous objections to the Magistrate Judge’s report, and each will be
addressed in turn.1
A.
Peterson first objects to the Magistrate Judge’s conclusion that she has not sufficiently
stated a claim for relief for deliberate indifference under the Eighth Amendment.

In her

complaint, Peterson alleged that Defendants were deliberately indifferent by failing to address
her complaints about the other inmates’ threatening behavior and the health hazard posed by the
leaking ceiling. As a result, Peterson now suffers from high blood pressure and psychological

1

Peterson’s first, second, third, and tenth objections are general objections to the Magistrate Judge’s
recommendation. See, e.g., Objection 1 (“Plaintiff admits the introduction description is accurate yet objects that
Peterson’s complaint fails to state a plausible claim upon which relief can be granted.”). The Court will construe
these objections as a request for de novo review of the entire Magistrate Judge’s report.

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stress. The Magistrate Judge concluded that Peterson’s alleged injuries were too speculative to
sustain a claim.
Pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), “[n]o Federal civil
action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a prior showing of physical injury
or the commission of a sexual act.” Although the majority of Peterson’s complaints center on
her alleged psychological stress, she does allege a physical injury: “Plaintiff suffered . . . the
jeopardy of ongoing physical harm based on diagnosed high blood pressure created by the
elevated stress level during the included described incidents.” Compl. 21. In her objections,
Peterson clarifies that Defendants’ actions resulted in her suffering from high blood pressure:
Never once in her annual medical examination had [Plaintiff] tested positive for
high blood pressure. My now ongoing suffering from high blood pressure was a
direct result of this mistreatment. In fact Plaintiff always tested normal or low
when tested for high blood pressure.
Objs. 4.
At least one circuit court has concluded that high blood pressure is an actionable injury.
In Calhoun v. Hargrove, 312 F.3d 730 (5th Cir. 2002), the Fifth Circuit held that the increase in
the inmate’s blood pressure could constitute a physical injury under § 1997e(e). The Fifth Circuit
noted that severe negative impacts on a person’s vital organs and certain elevated pressure may
require emergency care. Therefore, an allegation of increased blood pressure to near-stroke
levels was sufficient to survive summary dismissal.
Here, Peterson has not alleged the severity of her “high” blood pressure, but she has at
least alleged more than de minimis physical injuries that survive summary dismissal. Certainly,
there are outstanding issues of the severity of her high blood pressure and whether the alleged
mistreatment caused the high blood pressure. But at this stage, Peterson has stated sufficient
physical injury to survive summary dismissal, and her objection will be sustained.
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B.
Peterson’s next objection concerns the Magistrate Judge’s recommendation that her
procedural due process claim be dismissed.

In her complaint, Peterson claims that her

employment in the MSI dental lab was terminated without a hearing. The Magistrate Judge
concluded that Peterson had failed to state a claim for procedural due process because Peterson
did not have a protectable liberty interest in her prison job. Rep. & Rec. 8-9 (citing Dobbins v.
Craycraft, 423 F. App’x 550, 552 (6th Cir. 2011). The Magistrate Judge also concluded that, in
the alternative, Defendants are entitled to immunity under the Eleventh Amendment.
Peterson objects to the alternative conclusion, claiming that “[t]he Magistrate fails to
address if Mr. Burris and Warren may be sued in their official capacities” and that they are not
entitled to qualified immunity.
Peterson’s objection is unavailing because it overlooks the main point of the Magistrate
Judge’s conclusion: Peterson does not have a protectable liberty interest in her prison job, and
therefore any procedural due process claim against Defendants (whether in their official or
individual capacities) would be unsuccessful. Accordingly, because Peterson has not identified a
protected liberty interest, her procedural due process claim will be dismissed.
C.
Peterson next objects to the Magistrate Judge’s recommendation that her equal protection
claim be summarily dismissed. The Magistrate Judge concluded that Peterson had not alleged a
prima facie case because “[s]he does not allege that she was a member of a protected class, that
she was qualified for the job or that similarly situated inmates were treated differently for the
same or similar conduct.” Rep. & Rec. 9-10.

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In her objections, Peterson clarifies that she is a member of a protected class (she is
African-American),2 that she was qualified to perform the job (she had taken classes and had
performed the job in the past), and that she was treated differently when she was demoted and
forced to take a pay cut (while a white inmate did not have her pay cut). Thus, Peterson has
established a prima facie case for violation of her equal protection rights. Accordingly, this
objection will be sustained, and the equal protection claim will not be summarily dismissed.
D.
Peterson next objects to the Magistrate Judge’s conclusion that she had failed to state a
claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which
enforces the First Amendment by prohibiting institutions of confinement from substantially
burdening religion absent a compelling governmental interest. The Magistrate Judge noted that
Peterson had not identified a prison policy that substantially burdened her religion; instead,
Peterson claims that her supervisor did not intervene when her fellow inmates made fun of her
religion. Because Peterson has not identified a prison policy that substantially burdens the
exercise of her religion, her RLUIPA claim will be dismissed.
E.
Peterson also objects to the Magistrate Judge’s conclusion that she failed to state a claim
for sexual harassment. In her complaint, Peterson contends that the other inmates acted overly
familiar with their boss, Defendant Burris, and that Peterson was punished for not participating.
As an example, Peterson explains that the other inmates brought Defendant Burris coffee every
morning and once presented him with a coffee cup that had the word “Boss” painted on the side.
Peterson, however, declined to participate.

The Magistrate Judge concluded that these

2

Peterson also notes that she is a Jehovah’s Witness. However, her equal protection claim based on her religion
would fail because she notes that another inmate (who is not a Jehovah’s Witness) was likewise demoted and took a
pay cut. Therefore, Peterson cannot show she was treated differently simply because she is a Jehovah’s Witness.

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allegations “fall far short of stating a plausible claim for sexual harassment.” Rep. & Rec. 11
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 786-89 (1998)).
Peterson acknowledges that she has not stated a claim for sexual harassment, but claims
that she has asserted a claim based on “overfamiliarity”. In a 2004 case, the Sixth Circuit recited
the MDOC definition of “overfamiliarity”: “conduct between staff and a prisoner which has or is
likely to result in intimacy or a close personal association, or conduct that is contrary to the good
order of the facility.” Everson v. Michigan Dep’t of Corrections, 3391 F.3d 737, 741 (6th Cir.
2004). Importantly, however, the case that Peterson relies on—Everson—did not involve a
sexual harassment claim. Instead, Everson dealt with a hiring policy for prison guards that was
designed to fight sexual harassment (which MDOC defined as including “overfamiliarity”).3
MDOC’s definition of sexual harassment is not the same as the legal standard for a
federal sexual harassment claim. No federal court has ever upheld a claim for sexual harassment
based on overfamiliarity, because overfamiliarity is not sufficient to state a claim for sexual
harassment. Instead, the challenged conduct must be both (1) objectively severe or pervasive
enough to create an environment that a reasonable person would find hostile or abusive, and (2)
subjectively regarded by the employee as creating an abusive environment. Faragher v. City of
Boca Raton, 524 U.S. 775, 787 (1998). Here, the conduct alleged—that her coworkers brought
their male boss coffee every morning and once gave him a coffee mug—is not sufficient to state
a claim for sexual harassment, as it is neither objectively severe nor pervasive enough to create a

3

In summary, male and female corrections officers working for the Michigan Department of Corrections challenged
the Michigan’s decision to make female gender a bona fide occupational qualification for the positions of
Correctional Officer and Resident Unit Officer in the housing units in the female prisons in Michigan. Michigan
instituted the bona fide occupational qualification in an attempt to curb the rates of sexual harassment and assault
committed by male corrections officers against female inmates. The corrections officers sued, claiming that the
designation violated Title VII of the Civil Rights Act. Although some female inmates were intervening defendants
in the case, they argued in support of the designation, asserting that only female correction officers should be
permitted in female prisons. No inmate brought a sexual harassment claim, and the court did not conclude that a
federal sexual harassment claim could be premised on “overfamiliarity.”

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hostile, abusive work environment. Accordingly, Peterson’s federal sexual harassment claim
will be dismissed.
F.
Peterson lastly objects to the Magistrate Judge’s recommendation that her state law
claims be dismissed. After recommending dismissal of Peterson’s federal claims, the Magistrate
Judge suggested that Peterson’s pendant state-law claims should be dismissed without reaching
their merits. However, because not all of Peterson’s federal claims will be dismissed, Peterson’s
objection will be sustained.
G.
In summary, the Magistrate Judge’s report will be adopted in part and rejected in part.
Peterson’s procedural due process, RLUIPA, and federal sexual harassment claims will be
summarily dismissed with prejudice for failure to state a claim for which relief may be granted.
However, Peterson has sufficiently alleged claims for deliberate indifference and equal
protection, and therefore these claims will not be summarily dismissed. And because Peterson
has remaining federal claims, her state law claims will not be summarily dismissed, either.
IV.
Just because some of Peterson’s claims will not be summarily dismissed, however, does
not automatically mean that they will survive Defendants’ motion to dismiss.4 In a three-and-ahalf page brief, Defendants contend that “Peterson’s Amended Complaint fails to allege any
specific action by any Defendant” and therefore the Amended Complaint must be dismissed.
Peterson’s Amended Complaint contains only two pieces of information: the name and
address of Millicent Warren, and the name of Michigan State Industries.

The Amended

Complaint contains no factual allegations, descriptions of causes of action, or any other

4

The Magistrate Judge did not discuss the merits of Defendants’ motion to dismiss, instead recommending that it be
denied as moot.

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information necessary. However, a Court is required to construe pro se pleadings liberally, and it
is clear that Peterson’s “Amended Complaint” was actually an attempt to add additional parties
to her original complaint, which outlines her claims and the pertinent facts. Indeed, in her
original complaint (which only listed Burris as a Defendant), Peterson explained Warren and
MSI’s involvement in the events that led to her lawsuit. Accordingly, construing Peterson’s two
complaints liberally, it is clear that the “Amended Complaint” was an attempt to add two new
Defendants to her lawsuit. Therefore, Defendants’ motion to dismiss will be denied.
V.
Accordingly, it is ORDERED that Peterson’s objections (ECF No. 41) are SUSTAINED
IN PART AND OVERRULED IN PART.
It is further ORDERED that the Magistrate Judge’s Report and Recommendation (ECF
No. 40) is ADOPTED IN PART AND REJECTED IN PART and the case is REFERRED to
the Magistrate Judge Stafford for further proceedings in accordance with this Court’s general
order of reference (ECF No. 31).
It is further ORDERED that Peterson’s procedural due process, RLUIPA, and federal
sexual harassment claims are SUMMARILY DISMISSED WITH PREJUDICE.
It is further ORDERED that Defendants’ Motion to Dismiss (ECF No. 22) is DENIED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: June 17, 2015

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail and on Angel Peterson #240544, Huron Valley
Complex-Womens, 3201 Bemis Road, Ypsilanti, MI 48197 by first
class U.S. mail on June 17, 2015.
s/Karri Sandusky
Karri Sandusky, Acting Case Manager

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