Perry v. W.Va. Correctional Industries et al
Filing
178
MEMORANDUM OPINION AND ORDER GRANTING 119 DEFENDANTS MOTION FOR SUMMARY JUDGMENT, DENYING 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 MOTIONS IN LIMINE AND 177 MOTION TO AMEND/CORREC T CASE CAPTION AS MOOT. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket. Should plaintiff choose to appeal, he is ADVISED that he must file a notice of appeal within 30 days after the date of the entry of the j udgment. The Clerk is DIRECTED to enter a judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 12/13/2018. (copy to Pro Se Plaintiff via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 12/14/2018: # 1 Certified Mail Return Receipt) (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JASON A. PERRY,
Plaintiff,
v.
Civil Action No. 5:15CV139
(STAMP)
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
I.
Procedural History
The pro se1 plaintiff, Jason A. Perry (“Perry”), a state
inmate, filed this civil rights matter pursuant to 42 U.S.C. § 1983
against
the
environment;
defendants
(2)
raising
hostile
work
four
claims:
environment
(1)
unsafe
based
on
work
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
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
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.
More 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.
This 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
Whitehead (“Whitehead”) and Don Zielinsky (“Zielinsky”).
Robert
ECF
No. 92.
Defendants 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
2
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).
reply
to
the
plaintiff’s
response
in
Defendants filed their
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).
The contentions of the parties are now fully briefed and
defendants’ pending motion for summary judgment (ECF No. 119) is
ripe for disposition.
II.
Applicable Law
Under 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.
3
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
4
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))).
In 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 light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
III.
Discussion
The only remaining claims in this civil action are plaintiff’s
Claim 2 and Claim 3, which are asserted against defendants Robert
Whitehead
and
Don
Zielinsky.
These
remaining
claims
are
discrimination due to hostile work environment based on sexual
preference and discrimination based upon retaliation.
5
This Court
construes plaintiff’s claims as equal protection violations based
on sexual preference.
In the instant case, plaintiff alleges that he was given a pay
raise from Level 3 to only Level 4.
He further alleges that the
failure to get a Level 5 raise was the result of his asking
defendant Zielinsky to cut back on the jokes and comments because
he was gay. Moreover, he indicates that other workers had received
raises.
He further alleges that he was “set up” for firing in
retaliation for his complaints regarding, among other things, gay
jokes and comments made by defendant Zielinsky.
Finally, the
plaintiff maintains that other inmates who have done worse things
than throw out items without permission were given only verbal
warnings or probation.
Plaintiff alleges that after filing a
grievance and explaining his sexual orientation to stop the jokes
and comments, things became tense in his work area.
contends
complaints
that
on
retaliatory
actions
took
the
issues,
the
safety
place
gay
Plaintiff
following
jokes
and
his
other
discrimination issues.
By way of background, plaintiff Perry was initially brought
into the program by Correctional Industries on February 25, 2014,
on a probationary status, and it was “common knowledge that
inmate[] Perry [was] gay[.]”
ECF No. 120-3 at 1, Whitehead Aff.
¶ 2, ECF No. 120-4 at 23.
Perry’s direct supervisor was Don
Zielinsky
and
Robert
Whitehead
6
was
the
superintendent
of
Correctional Industries and Zielinsky’s direct supervisor. ECF No.
120-3, Whitehead Aff. ¶ 7.
Within one month after his hiring, on March 25, 2014, Perry
was promoted to pay grade 1.
Id. at ¶ 3.
Less than a month after
that, Perry was again promoted to pay grade 3.
Id. at ¶ 4.
was then promoted to pay grade 4 on October 21, 2014.
Perry
Id. at ¶ 6.
During this time, Perry was promoted to new and higher employment
positions, and was ultimately promoted to the position of “camera
room
clerk”.
Id.
at
¶
5.
At
all
times
pertinent
to
the
plaintiff’s claims, Correctional Industries had between 40 to 50
inmates in this program.
In October 2014, the only Correctional
Industries employee to receive such a promotion to Level 4 in
Zielinsky’s section was Perry.
Id. at ¶ 8.
From 2011 until Perry
resigned, five employees worked in the position of “camera room
clerk.”
Id.
Of the four previous “camera room clerks,” only one
employee was given a promotion to pay grade 5, and that was after
ten full months on the job and he took over the position from two
employees.
Id.
As to the other “camera room clerks,” Perry was
the only one to reach pay grade 4, while the others only made it to
pay grade 3.
Id.
In a grievance concerning his work place finger injury dated
May 5, 2015 - seven months after being promoted to pay grade 4 Perry specifically stated: “Good people to work for in industries,
just poor training and old equipment.”
7
ECF No. 16-1 at 2.
This
grievance was rejected, however, as it was untimely, and plaintiff
voiced no complaints about his numerous promotions at that time.
On
July
9,
2015,
Perry
was
found
to
be
printing
distributing a flyer for employees and personal use.
120-3, Whitehead Aff. ¶¶ 13, 14.
and
ECF No.
It is against policy for
Correctional Industries employees to print materials for personal
use and violating this rule can be an immediately terminable
offense.
Id.
Perry was given a verbal warning.
Id. at ¶ 16.
Four days later, on July 13, 2015, Perry was caught throwing
away items which were property of the state without permission.
Id. at ¶ 17.
Kodak
The items that Perry threw away were as follows:
Negative
Processor
[operator/parts
manual],
Enco
Plate
Processor [operator/parts manual], 2 Camera Platemaker Manuals
[operator/parts manual], 2 Loupes Magnifiers, 2 Instruction Sheets,
Resolution Chart, Empty Binder.
Id.
These items were worth
several hundred dollars and some were still in use at the time
plaintiff threw them away.
Id. at ¶ 20.
When faced with the option to be terminated and permanently
barred from working for Correctional Industries, or to resign and
be eligible to return to work after 30 days if an opening existed,
Perry resigned.
Id. at ¶ 21; ECF No. 120-3 at 13.
However,
instead of waiting the 30-day period to return to work in the
Prison Industries, plaintiff applied for and was hired as a kitchen
worker on July 29, 2015.
ECF No. 143-3.
8
On August 20, 2015,
plaintiff resigned from his position as a kitchen worker.
Id.
On
September 24, 2015, plaintiff then applied for and was hired as a
Janitor in D l Pod.
Id.
In response to defendants’ motion, plaintiff presents several
“objections” stating that defendants’ arguments are inaccurate and
misleading.
Perry asserts, among other things, that Zielinsky
stated that “once [Perry] proved [Perry] could do the job, [he]
would go to a level 5.”
ECF No. 121-1.
Plaintiff adds that
defendants fail to explain why the gay jokes continued to be made
while he worked there and also fail to explain why he was not asked
to resign earlier when he “printed many things” and “[threw] away
several things before.”
ECF No. 121-1.
Following its review of the fully briefed motion, the parties’
supplemental briefing, and the memoranda and affidavits submitted
by the plaintiff and the defendants, and for the reasons set forth
below, this Court finds that plaintiff has failed to make the
requisite showing for an equal protection violation claim in that
plaintiff has failed to establish that he was treated differently
than similarly situated individuals and has failed to even make a
prima facie showing of the basic elements of his asserted claims.
Thus, plaintiff’s claims fail, and defendants’ motion for summary
judgment (ECF No. 119) is granted.
The
Equal
Protection
Clause
of
the
Fourteenth
Amendment
provides that a state may not “deny to any person within its
9
jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1.
To that end, the Equal Protection Clause provides that
“all persons similarly situated should be treated alike.”
City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Generally, in order to establish an Equal Protection Claim, a
plaintiff
must
first
demonstrate
that
he
has
been
treated
differently from others with whom he is similarly situated and that
the unequal treatment was the result of intentional or purposeful
discrimination.
Prisoners are protected under the Equal Protection Clause from
“invidious discrimination.”
(1974).
Wolff v. McDonnell, 418 U.S. 539, 556
To prove a claim under the Fourteenth Amendment that he
has been denied equal treatment, an inmate must first show that “he
has been treated differently from others with whom he is similarly
situated . . . .”
Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.
2002); see also Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.
2001).
“In order to meet this requirement, a plaintiff must set
forth ‘specific, non-conclusory factual allegations that establish
improper motive.’”
Boyd v. United States, 2016 WL 8731785, at *9
(N.D. W. Va. May 20, 2016), report and recommendation adopted, 2016
WL 4005861 (N.D. W. Va. July 26, 2016), appeal dismissed, 678 F.
App’x 122 (4th Cir. 2017) (quoting Williams v. Hanson, 326 F.3d
569, 584 (4th Cir. 2003)).
If he makes this showing, the court
10
proceeds to determine whether the disparity in treatment can be
justified under the requisite level of scrutiny.
Id.
In a prison context, this level of scrutiny is “whether the
disparate treatment is reasonably related to [any] legitimate
penological
interests.”
Veney,
293
F.3d
at
732
(internal
quotations omitted); Moss v. Clark, 886 F.2d 686, 690 (4th Cir.
1989).
To state an Equal Protection claim, a plaintiff must plead
sufficient facts to satisfy each requirement.
Veney, 293 F.3d 726
at 731.
Plaintiff is proceeding pro se and therefore the Court is
required to liberally construe his pleadings.
Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520-1
(1972) (per curiam); Erikson v. Pardus, 551 U.S. 89, 94 (2007); Loe
v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574
F.2d 1147 (4th Cir. 1978).
true
unwarranted
However, this Court need not accept as
inferences,
unreasonable
conclusions,
or
arguments. E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P’ship, 213
F.3d 175, 180 (4th Cir. 2000).
Here, Perry has not demonstrated either that he was treated
differently from other similarly situated prisoners, or that his
alleged unequal treatment was the result of discriminatory intent.
As an initial matter, defendants briefly argue that Perry’s
Claim 2 fails for failure to exhaust his administrative remedies in
that plaintiff’s Claim 2 relates to alleged actions that took place
11
regarding his promotion and failure to promote to Level 5 in 2014.
Defendants argue that Perry did not file his grievance as it
relates to these actions until July 14, 2015.
ECF No. 16-1 at 3-4.
As this is outside the time frame to file a grievance, defendants
assert that Claim 2 fails for failure to exhaust his administrative
remedies.
Upon review, this Court finds that although Perry did not file
his grievance related to being “forced” to resign his position at
Prison Industries until July 14, 2015 (ECF No. 16-1 at 3-4),
Perry’s grievance was not rejected as being outside of the time
frame, but rather, was accepted and denied.
The Warden’s decision
to deny Perry’s grievance was then accepted and affirmed by the
Commissioner.
If Perry’s grievance was outside of the time frame
to file, the Central Office for Grievance Review could have
rejected the grievance as untimely.
It did not do so.
Thus,
because Perry’s claim was accepted and then denied and affirmed,
this Court will construe Perry’s grievance as timely and analyze
plaintiff’s claim on the merits.
The law is well established that a prisoner does not have a
constitutionally protected right to work while incarcerated, or to
remain in a particular job once assigned.
Boyles v. West Virginia
Department of Corrections, 2013 WL 5728143 (N.D. W. Va.) at *2.
“Prisoner work assignments are matters within the discretion of
prison officials, and denial of employment does not, in and of
12
itself, abridge any constitutional right of the inmate.
Id.
(citing Johnson v. Krable, 862 F.2d 314, 1988 WL 119136 at *1 (4th
Cir. 1988)).
The same is true about a prisoner’s pay grade or any
benefit that stems from the prison job, such as an apprenticeship
program.
See Goodman v. McBride, 2007 WL 1821090 *2 (S.D. W. Va.
June 22, 2007) (“If an inmate has no constitutionally protected
interest in maintaining a particular job assignment, then, a
fortiori, he has no constitutionally protected interest in any
benefit
that
assignment.”).
may
stem
from
maintaining
a
particular
job
However, if a prison program is offered, no
prisoner may be treated differently in terms of access to that
program on the basis of his or her race or national origin, because
“the Constitution prohibits prison supervisors from using race as
a factor in determining which prisoners can participate in which
programs.”
Brown v. Summer, 701 F. Supp. 762, 764 (D. Nev. 1988).
Likewise, if an inmate is denied a prison work assignment simply
because of his sexual orientation, his Equal Protection rights may
have been violated.
Brown v. Summer, 701 F. Supp. 762, 764 (D.
Nev. 1988); see also Johnson, 862 F.2d 314.
This Court finds no evidence that Perry was intentionally or
purposefully discriminated against as an employee of Correctional
Industries on the basis of his sexual preference as a homosexual
inmate. Rather, there is ample evidence, and the record before the
Court conclusively shows, that Perry was asked to resign from his
13
job, and did so voluntarily, after receiving a verbal warning from
his supervisor for improperly printing items for personal use and
then disposing of state property by throwing items contained within
the shop in the trash.
Ultimately the decision to ask Perry to
resign
result
was
not
the
of
intentional
or
purposeful
discrimination, but rather was based upon a legitimate and nondiscriminatory reason.
To the extent plaintiff argues that the
defendants refused to promote him to a Level 5 pay raise, and that
there were no legitimate reasons for requiring him to resign or be
fired, this Court finds plaintiff’s argument to be unavailing.
Plaintiff’s requested resignation was a function of the fact that
within a four-day period, Perry broke the rules and did so in a
manner that was increasing in severity.
This Court has reviewed the affidavits submitted by the
plaintiff in this action.
First, this Court finds that the
affidavits of Brian Sine (ECF No. 152), Brian Dement (ECF No. 153)
and Jeff White (ECF No. 158) were submitted past the extended
deadlines for briefing and discovery and are ultimately untimely.
Second, this Court finds that these affidavits were submitted by
the plaintiff after this Court entered an order directing the
parties to end briefing in this matter and were not filed as
attachments
No. 144.
to
the
parties’
earlier
extensive
briefing.
ECF
Third, this Court finds that all of the affidavits are
conclusory and based upon unwarranted inferences. See ECF No. 111
14
(Sutherland Aff.); ECF No. 120-4 (Wilson Aff. and Anderson Aff.);
ECF No. 121 (Perry Aff.); ECF No. 152 (Sine Aff.); ECF No. 153
(Dement Aff.); ECF No. 158 (White Aff.). Lastly, to the extent any
of the affidavits submitted by plaintiff were properly attached to
the briefing and timely filed, this Court finds that they do not
create a genuine issue as to any material fact. ECF No. 121 (Perry
Aff.)
This Court finds that defendants have submitted ample evidence
that shows Perry was, in fact, promoted several times within
Correction Industries by his supervisors.
Moreover, defendants
have submitted ample evidence demonstrating that the plaintiff was
not entitled to a Level 5 pay raise, and that there were legitimate
reasons for requiring him to resign or be fired.
rehiring
of
plaintiff
also
demonstrates
the
discrimination based on his sexual preference.
The repeated
lack
of
any
This Court finds
that plaintiff’s homosexuality played no role in his resignation or
failure to receive a Level 5 raise.
As to each of the issues raised by Perry, this Court finds
that the plaintiff fails to present evidence sufficient to show
that he was treated differently from other similarly situated
individuals
or
that
he
was
treated
differently
than
others
similarly situated as the result of intentional discrimination and
offers only general, conclusory factual allegations with little
specificity in support of his claims.
15
Plaintiff fails to meet his
burden
in
opposing
summary
judgment
and,
therefore,
summary
judgment is warranted.
IV.
Conclusion
For the reasons set forth above, the defendants’ motion for
summary
judgment
violations
of
as
equal
to
plaintiff’s
protection
Claims
(ECF
No.
2
and
119)
3
alleging
is
GRANTED.
Defendants’ motions in limine (ECF Nos. 159, 160, 161, 162, 163,
164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, and
176) and defendants’ motion to amend/correct case caption (ECF No.
177) are DENIED AS MOOT.
It is further ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit,
he is ADVISED that he must file a notice of appeal with the Clerk
of this Court within 30 days after the date of the entry of the
judgment order.
Fed. R. App. P. 4(a)(1)(A).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
16
DATED:
December 13, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
17
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