DeSavage v. Grove et al

Filing 10

MEMORANDUM and ORDER adopting in part Report and Recommendation of Magistrate Judge MAnnion; Dismissing pltf's due process claims; GRANTING pltf' motion to proceed IFP; Case is REMANDEd to the Magistrate Judge ; the Magistrate Judge is directed to order service of the complaint upon dfts. s Signed by Honorable James M. Munley on 8/06/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHRISTOPHER JAMES DESAVAGE, : No. 3:09cv1204 Plaintiff : : (Judge Munley) : v. : : BRENDA GROVE, : D. MACEACHERN, : H. GLORIOSO, : CONNIE GREEN, : R.M. LAWLER, : ZURYBIDA, : TINA HICKS-KERN, and : DORINA VARNER, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are plaintiff's objections (Doc. 9) to the report and re c o m m e n d a tio n of Magistrate Judge Malachy E. Mannion (Doc. 6), which proposes th a t we dismiss the plaintiff's complaint with prejudice. B a c k g ro u n d T h is case arises out of plaintiff's employment while a prisoner at the P e n n s ylv a n ia State Correctional Institution, Huntingdon. (See Complaint (Doc. 1) (h e re in a fte r "Complt.")). Plaintiff alleges that on January 14, 2009 he began work in th e bakery at the prison. (Id.). The "steward" temporarily in charge of the bakery on th a t day informed plaintiff that he would not be scheduled to work on Thursdays or F r id a ys . (Id.). As January 15, 2009 was a Thursday, plaintiff did not show up for

w o rk. (Id.). W h e n the regular steward, Brenda Grove, returned to work that day, s h e found plaintiff absent and arranged for him to be transferred out of the kitchen. (Id.). Grove ensured that plaintiff was transferred not just from the bakery, but back to a labor pod. (Id.). Plaintiff alleges that Grove had no valid reason to transfer him, b u t did so out of a discriminatory motive. (Id.). Plaintiff wrote to his unit manager, managers in the food service department, a n d an employment manager to complain of this treatment. (Id.). One of the food s e rvic e managers he wrote, Glorioso, responded by pointing out that plaintiff had no rig h t to work. (Id.). Glorioso did not address plaintiff's discrimination claim at all. (Id.). Plaintiff filed a grievance on January 17, 2009, alleging discrimination. (Id.). Glorisio informed plaintiff that Brenda Grove had him removed from bakery duty b e c a u s e she felt uncomfortable around him. (Id.). Plaintiff disputes this explanation b e c a u s e he had worked around Grove for four years and she had never found his b e h a vio r offensive. (Id.). Glorioso denied plaintiff's grievance and he filed an appeal to Superintendent Lawler. (Id.). At some time after filing this appeal, plaintiff's unit manager arranged for him to work in the prison laundry. (Id.). Plaintiff did not end up working in the laundry, h o w e ve r, but was soon transferred back to the kitchen. (Id.). While plaintiff did not re tu rn to the bakery, he still worked around the very staff member, Grove, who had e a rlie r complained about his work. (Id.). Plaintiff filed another grievance based on th is situation. (Id.). In the meantime, Superintendent Lawler denied plaintiff's

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g rie va n c e , and plaintiff appealed that decision. (Id.). Major Hannah denied plaintiff's s e c o n d grievance as plaintiff awaited the results of his first appeal, finding no e vid e n c e of discrimination. (Id.). The prison eventually denied this grievance as w e ll. (Id.). Plaintiff appealed. (Id.). State prison administrators denied both g rie va n c e s . (Id.). Plaintiff insists that favoritism in job assignments and unfair firings a n d job assignments continue under Brenda Grove's management. (Id.). Plaintiff c o n te n d s that Grove's discrimination towards him comes because of the influence of G ro ve 's favored inmates, who introduced "question or hatred towards homosexuals o r outright hatred towards me." (Id.). Plaintiff's complaint, filed June 24, 2009, seeks action from the court to p re ve n t the alleged discrimination he faces, as well as monetary damages against all o f the named defendants. In addition to his complaint, plaintiff filed a motion for le a ve to proceed in forma pauperis ("IFP"). (Doc. 2). After plaintiff filed his c o m p la in t, the magistrate judge provided an initial screening to determine whether p la in tiff's motion to proceed IFP should be granted. (Doc. 6). The magistrate judge c o n s tru e d plaintiff's claims as founded in due process and concluded that the c o m p la in t should be dismissed. Plaintiff had no property interest in particular prison e m p lo ym e n t, the magistrate judge found, and he thus had no due process claim. M o re o ve r, he does not allege that defendants' behavior constituted cruel and u n u s u a l punishment, and thus could not bring a claim on those grounds. After the m a g is tra te judge issued his report and recommendation, the plaintiff filed objections,

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b rin g in g the case to its present posture. J u r i s d ic t i o n P la in tiff filed his complaint pursuant to 42 U.S.C. § 1983. This court therefore h a s jurisdiction pursuant to 18 U.S.C. § 1331 ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ite d States."). Legal Standard In disposing of objections to a magistrate judge's report and recommendation, th e district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. C a rls o n , 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court may also receive further evidence or recommit the matter to the m a g is tra te judge with instructions. Id. U n d e r 28 U.S.C. § 1915(d), the court is permitted "to consider whether an in fo rm a pauperis complaint is frivolous or malicious before authorizing issuance of the s u m m o n s and service of the complaint." Urrutia v. Harrisburg County Police Dept., 9 1 F.3d 451, 453 (3d Cir. 1996). The court may "dismiss as frivolous claims based o n an indisputably meritless legal theory and whose factual contentions are clearly b a s e le s s ." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). Courts undertake s u c h an evaluation before service of the complaint. 4

D i s c u s s io n P la in tiff objects to the magistrate judge's findings that he cannot make out e ith e r a due process or an equal protection claim. The court will address each o b je c tio n in turn. D u e Process P la in tiff insists that his job was taken from him in violation of prison re g u la tio n s , thus alleging that the prison's actions violated his right to procedural due p ro c e s s . To prevail on this type of a due process claim, a plaintiff must satisfy two e le m e n ts : "the first asks whether there exists a liberty or property interest which has b e e n interfered with by the State; the second examines whether the procedures a tte n d a n t upon that deprivation were constitutionally sufficient." Kentucky Dep't of C o rre c tio n s v. Thompson, 490 U.S. 454, 460 (1989). The magistrate judge c o n c lu d e d that plaintiff could not establish that the state had interfered with any lib e rty or property interest. T h e property interest allegedly deprived here was plaintiff's interest in a p a rtic u la r prison job. Plaintiff argues that the magistrate judge erred in concluding th a t he lacks a property interest in that job. He insists that prison officials are limited in when they can remove a plaintiff from his job, and that he therefore has an e n title m e n t to work in the bakery that qualifies as a property interest. A prisoner seeking to raise a due process claim when deprived of prison e m p lo ym e n t must "have either a liberty or a property interest in" the job assignment. 5

J a m e s v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989). The Third Circuit Court of A p p e a ls has stated that "[w]e do not believe that an inmate's expectation of keeping a particular prison job amounts to a `property' or `liberty' interest entitled to protection u n d e r the due process clause." Bryan v. W e rn e r, 516 F.2d 233, 240 (3d Cir. 1975). Since plaintiff's complaint here is that he was deprived of a particular prison job, he la c k s a protected property or liberty interest in that job and cannot make out a due p ro c e s s claim. The court will overrule the objection on this point. E q u a l Protection P la in tiff contends as well that defendants violated his right to equal protection of the law under the Fourteenth Amendment by removing him from his position b e c a u s e he was a homosexual. "The Equal Protection Clause of the Fourteenth A m e n d m e n t commands that no State shall `deny to any person within its jurisdiction th e equal protection of the laws,' which is essentially a direction that all persons s im ila rly situated should be treated alike." City of Clerburne v. Clerburne Living C e n te r, 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). "To prevail on an equal protection claim, a plaintiff must present evidence that s/he h a s been treated differently from persons who are similarly situated." Williams v. M o rto n , 343 F.3d 212, 221 (3d Cir. 2003). Here, plaintiff has alleged that he lost his job because defendants d is c rim in a te d against him on the basis of his sexual preference. He contends that o th e r similarly situated people did not suffer the same treatment. Assuming that

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p la in tiff could prove such discrimination occurred and that the defendants' m o tiva tio n s for their actions could not survive the level of Fourteenth Amendment s c ru tin y required in such instances, plaintiff could prevail on this claim. As such, the c o u rt will decline to adopt the report and recommendation on this point and sustain th e plaintiff's objection. C o n c l u s io n F o r the reasons stated above, the court will adopt the report and re c o m m e n d a tio n in part. The court will adopt the magistrate judge's re c o m m e n d a tio n that plaintiff's due process claim be dismissed. The court will not a d o p t the magistrate judge's recommendation that the plaintiff's entire claim be d is m is s e d altogether, however. Plaintiff's equal protection claim is not frivolous, and th e court will remand the case to the magistrate judge, grant the plaintiff's motion to p ro c e e d in forma pauperis and direct the magistrate judge to order service of the c o m p la in t on the defendants.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHRISTOPHER JAMES DESAVAGE, : No. 3:09cv1204 Plaintiff : : (Judge Munley) : v. : (Magistrate Judge Mannion) : BRENDA GROVE, : D. MACEACHERN, : H. GLORIOSO, : CONNIE GREEN, : R.M. LAWLER, : ZURYBIDA, : TINA HICKS-KERN, and : DORINA VARNER, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 6th day of August 2009, the plaintiff's objections (Doc. 9 ) to the report and recommendation of Magistrate Judge Malachy E. Mannion (Doc. 6 ) are SUSTAINED IN PART and OVERRULED IN PART, as follows: 1 ) The plaintiff's due process claims are DISMISSED; 2 ) The plaintiff's motion to proceed in forma pauperis (Doc. 2) is GRANTED; 3) The case is REMANDED to the magistrate judge for proceedings consistent w ith this opinion; 4 ) The magistrate judge is DIRECTED to order service of the complaint on the d e fe n d a n ts . 8

B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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