Perry v. W.Va. Correctional Industries et al

Filing 91

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 84 MAGISTRATE JUDGES REPORT AND RECOMMENDATION, OVERRULING 86 THE PLAINTIFFS OBJECTIONS, GRANTING IN PART AND DENYING IN PART 41 DEFENDANTS WHITEHEAD AND ZIELINSKYS MOTION TO DISMISS, GRANTING DEFENDANTS 44 49 HAHN AND JANISZEWSKIS MOTION TO DISMISS, AND GRANTING DEFENDANT LEES MOTION TO DISMISS. This case shall PROCEED only as to the claims against defendants Robert Whitehead and Don Zielinsky alleging violations of equal protectio n, and this Court will enter a separate scheduling order with regard to those claims. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/28/2018. (copy to Pro Se Plaintiff via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 3/28/2018: # 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
AFFIRMING AND ADOPTING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
OVERRULING THE PLAINTIFF’S OBJECTIONS,
GRANTING IN PART AND DENYING IN PART
DEFENDANTS WHITEHEAD AND ZIELINSKY’S MOTION TO DISMISS,
GRANTING DEFENDANTS HAHN AND JANISZEWSKI’S MOTION TO DISMISS,
AND GRANTING DEFENDANT LEE’S MOTION TO DISMISS
The pro se1 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.

1

The magistrate judge recommended that the motion to

“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).

dismiss filed by Robert Whitehead and Don Zielinsky (ECF No. 41) be
granted, in part and denied in part.

More specifically, the

magistrate

plaintiff’s

judge

recommended

that

the

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

2

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.

3

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

4

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.
at 22.

ECF No. 41-1

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.

5

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.
Whitehead

and

ECF Nos. 61-63.

Zielinsky,

the

In response to defendants

plaintiff

6

first

cites

the

well

accepted

principle

that

pleading filed pro se.

the

Court

must

liberally

construe

a

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

7

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 to
dismiss by Cecilia Janiszewski and Jerry Hahn.
Defendants Whitehead and Zielinsky filed a reply (ECF No. 66)
and assert that in support of his claim based upon an “unsafe work
environment,” the plaintiff’s only allegation is that he was
injured on a piece of machinery because he did not have sufficient
training and/or because the machinery was “old and outdated, the

8

safety features are broke and/or bypassed.”

ECF No. 66 at 1.

Defendants state that plaintiff does not allege that anyone acted
intentionally or even recklessly, and he does not allege that
anyone knew about the alleged problem with the machinery or took
any

affirmative

action

to

cause

his

injury.

Accordingly,

defendants Whitehead and Zielinsky reiterate their position that
the allegations surrounding this claim support a negligence claim
at best.

In addition, defendants reiterate their argument in

support of qualified immunity.

With respect to his claim of

discrimination due to hostile work environment, defendants argue
that the plaintiff fails to cite any law or precedent indicating
that homosexuals are, in fact, a protected class.

Furthermore,

they note that plaintiff’s complaint does not allege that any
similarly situated heterosexual inmates received the raise that he
felt he should have been given.

Accordingly, defendants argue

plaintiff simply has not asserted a viable discrimination claim.
With respect to his retaliation claim, defendants reiterate that as
an inmate, the plaintiff has no constitutional or any other right
to be employed and completely failed to address this issue.
Defendant Jamie Lee filed a reply (ECF No. 65) and states that
plaintiff has not addressed the issue of failure to exhaust, and as
it is fatal to plaintiff’s claim, the complaint against her should
be dismissed.
malpractice

Defendant Lee argues plaintiff has abandoned his

claims

and

such

claims

9

should

be

dismissed

with

prejudice, and reiterates her argument that any claim of deliberate
indifference on her part should be dismissed.
This civil action was referred to the United States Magistrate
Judge for initial review and report and recommendation pursuant to
Local Rule of Prisoner Litigation Procedure 2.
Magistrate

Judge

recommendation.

Robert

W.

ECF No. 84.

Trumble

entered

United States
a

report

and

The magistrate judge found that

plaintiff has not pleaded, let alone shown, that the defendants
knew about and disregarded an excessive risk to his health or
safety, and that their actions constitute a deliberate indifference
to his safety, and that plaintiff has asserted a negligence claim
that fails to state a cause of action under the Eighth Amendment
that should be dismissed.

ECF No. 84 at 15.

The magistrate judge also found that plaintiff has made
factual allegations that give rise to a plausible claim for a
denial of equal protection.

The magistrate judge states that

although defendants Whitehead and Zielinsky may be able to defeat
these claims with evidence demonstrating that the plaintiff was not
entitled to a Level 5 pay raise, or that there were legitimate
reasons for requiring him to resign or be fired, they have chosen
not to do so.

Therefore, at this early stage of the proceedings,

dismissal of these two claims is not warranted.

ECF No. 84 at 17.

As to plaintiff’s final claim, the magistrate judge found that
except for naming Cecilia Janiszewski and Jerry Hahn as defendants,

10

the only other specific reference he makes to either is that: “Dr.
Jerry Hahn never treated my hand.

He nor Administrator Cecilia

Janiszewski (or their subordinates) let me see a specialist to
treat my hands.”

ECF No. 16 at 17.

Therefore, as noted by Hahn

and Janiszewski in their motion to dismiss, his allegations against
them amount to no more than a disagreement with the professional
judgment and course of treatment selected by these healthcare
providers

and

do

not

rise

to

the

level

of

a

plausible

constitutional claim, and accordingly, they should be dismissed as
defendants.

Additionally the magistrate judge found that to the

extent a grievance attached to plaintiff’s complaint could be
construed as exhausting any claims against medical providers, it
was filed two months before defendant Lee began her employment as
the Administrator of Wexford at NCF, and therefore cannot be
construed as exhausting his claims against this defendant.

The

magistrate judge noted that plaintiff did not respond to this
allegation by Ms. Lee and has offered no argument that would
indicate that he was prevented from exhausting a grievance against
her, and therefore, plaintiff’’s claim against Ms. Lee is subject
to dismissal for failure to exhaust administrative grievances.
Furthermore, the magistrate judge notes that plaintiff’s only
statement with respect to Ms. Lee is that she “runs medical for
Wexford and that is who would have got my letters, and never let me
see anyone for pain or treatment.”

11

ECF No. 16 at 17.

There is no

allegation that Ms. Lee personally treated the plaintiff, ever
examined his hand or ever prescribed any medications.

Moreover,

Ms. Lee did not become employed as the Administrator of Wexford
until July 20, 2015, more than two years after the plaintiff’s hand
injury in March 2013.

In fact, Wexford did not begin providing

medical care at the NCF until March 1, 2015.

The plaintiff’s

complaint contains no allegations that would suggest that his
medical condition became worse after that date.
if

the

plaintiff

had

exhausted

his

Accordingly, even

administrative

grievances

against Ms. Lee, his complaint as to her is subject to dismissal
for failure to state a claim for relief.
For the foregoing reasons, 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.
extent

that

the

The magistrate judge stated that to 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

12

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 magistrate judge stated that “[w]ithin fourteen (14) days
after being served with a copy of this report and recommendation,
any party may file with the Clerk of Court written objections
identifying those portions of the recommendation to which objection
is made and the basis for such objections.

A copy of any

objections shall also be submitted to the United States District
Judge.

Failure to timely file objections to this recommendation

will result in waiver of the right to appeal from a judgment of
this Court based upon such recommendation.

28 U.S.C. § 636(b)(1);

Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir.
1984), cert. denied, 467 U.S. 1208 (1984) (emphasis in original).
The plaintiff filed objections to the magistrate judge’s
report and recommendation on February 14, 2018.

ECF No. 86.

The

docket reflects a return receipt was filed as service accepted by
the plaintiff on January 1, 2018.

ECF No. 85.

However, plaintiff

explains at the conclusion of his “reply and objections” to the
magistrate

judge’s

report

and

recommendation

that

“Northern

Correctional Facility has been on lockdown for numerous days over
13

the past two weeks, and by such there was no reasonable access to
a law library which caused a delay in te reply and objections being
researched and presented.

However, such reply and objections were

completed by the Court’s deadline and presented accordingly” and
dated as “2-9-18.”

ECF No. 86-1 at 1.

Plaintiff “objects to the report and recommendation that the
motion to dismiss filed by Robert Whitehead and Don Zielinsky be
granted in part” and states in support that “claim one, regarding
an unsafe work environment is a viable claim as it is a claim of
negligence.” ECF No. 86 at 2. Plaintiff contends that “Had Robert
Whitehead and Don Zielinsky taken the precautionary measures of
properly training the plaintiff in the safe operations of the
dangerous

machine,

considerably less.
issues).”

the

danger

of

injury

would

have

been

(Plus they knew several machines had safety

ECF No. 86 at 2.

Plaintiff also objects “to the

recommendation to dismiss the claims against Jerry [Hahn], Jamie
Lee and Cecilia Janiszewski for failure to state a claim upon which
relief may be granted.”

ECF No. 86 at 3.

Plaintiff asserts that

“the claim of a deliberate indifference to a serious medical
condition/need is also a viable claim for relief as the deliberate
indifference was caused by the virtue of their inactions, and, or
inactions after the plaintiff was in fact seriously injured and
disabled

by

the

dangerous

machinery

at

N.C.F.

correctional

industries, and by such, plaintiff is not, and has not withdrawn

14

any assertions of medical negligence.” ECF No. 86 at 3. Plaintiff
also notes his objection to footnote 5 on page 18 of the magistrate
judge’s report and recommendation which deals with examples of what
does or does not constitute a serious injury, stating that “the
injuries suffered by the plaintiff is one diagnosed as mandating
treatment and was so obvious that even a lay person would have
recognized the need for a doctor’s attention.”

ECF No. 86 at 3.

Plaintiff adds at the bottom of page three that there is an
“ongoing grievance against ‘Medical’ - still not getting treated should not have to file “new” grievance every time new staff
member!

Jamie Lee was in charge when suit was filed.”

ECF No. 86

at 3.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.

As to those findings to which

objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
the

report

and

28

Because the plaintiff filed objections to

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo as to those findings to
which objections were made.
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true,

15

to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

This plausibility

standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff has stated a claim
that makes it plausible he is entitled to relief.

Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556
U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.

Discussion

Because the plaintiff filed objections to the report and
recommendation,

this

Court

reviews

the

magistrate

judge’s

recommendation de novo as to those findings to which objections
were made.
For the reasons stated below, this Court adopts and affirms
the report and recommendation of the magistrate judge in its
entirety.
A.

Unsafe Work Environment
Plaintiff “objects to the report and recommendation that the

motion to dismiss filed by Robert Whitehead and Don Zielinsky be
granted in part” and states in support that “claim one, regarding
an unsafe work environment is a viable claim as it is a claim of
negligence.”

ECF No. 86 at 2.

Plaintiff contends that “[h]ad

Robert Whitehead and Don Zielinsky taken the precautionary measures
of properly training the plaintiff in the safe operations of the
dangerous

machine,

the

danger

16

of

injury

would

have

been

considerably less. (Plus they knew several machines had safety
issues).”

ECF No. 86 at 2.

Prison officials may violate the Eighth Amendment to the
United States Constitution if they are deliberately indifferent to
an inmate’s safety.

See Young v. City of Mt. Ranier, 238 F.3d 567,

575 (4th Cir. 2001) (explaining that the deliberate indifference
standard for claims alleging inadequate medical care is also
applicable when prison officials fail to protect inmates from other
sources of harm).

However, to prevail on an Eighth Amendment

claim, a plaintiff must show that the defendants knew about and
disregarded an excessive risk to his health or safety, and that
their actions constitute a deliberate indifference to his safety.
Farmer v. Brennen, 511 U.S. 825, 837 (1994).

Eighth Amendment

liability cannot be based on simple negligence or lack of due care,
but rather requires some sort of conscious disregard of a serious
and imminent risk of harm.

Id. at 835-39.

In short, the United

States Supreme Court has made clear that only the unnecessary and
wanton infliction of pain implicates the Eighth Amendment.
v.

Seiter,

501

insufficient.

U.S.

294,

297

(1994).

Mere

Wilson

negligence

is

See Daniels v. Williams, 474 U.S. 327, 328 (1986);

Young, 238 F.3d at 575.
This Court has conducted a de novo review of the portion of
the magistrate judge’s report and recommendation concerning the

17

plaintiff’s

claim

against

defendants

Whitehead

and

Zielinsky

regarding an unsafe work environment.
This

Court

finds

that

plaintiff

has

failed

to

show,

specifically as to the gold foil stamping machine press, that
defendants Whitehead and Zielinsky knew about and disregarded an
excessive risk to plaintiff’s health or safety.
that

defendants’

actions

do

not

indifference to plaintiff’s safety.

This Court finds

constitute

a

deliberate

Plaintiff has merely asserted

a negligence claim that fails to state a cause of action under the
Eighth Amendment.

Accordingly, plaintiff’s unsafe workplace claim

is subject to dismissal.
B.

Discrimination Based on Sexual Orientation
This Court notes no objection by the plaintiff to the portion

of the magistrate judge’s report and recommendation concerning the
plaintiff’s claims against defendants Robert Whitehead and Don
Zielinsky as to violations of equal protection based on the
plaintiff’s sexual orientation.

The magistrate judge correctly

determined that plaintiff has made factual allegations that give
rise to a plausible claim for a denial of equal protection.

The

magistrate judge correctly found that, at this time, the record
shows that these defendants have offered no evidence to refute the
plaintiff’s claims that he was entitled to a Level 5 pay raise, or
that there were no legitimate reasons for requiring him to resign
or

be

fired.

Therefore,

as

the

18

magistrate

judge

correctly

determined, at this early stage of the proceedings, dismissal of
these two claims is not warranted.

This Court finds no error in

any of the above determinations of the magistrate judge and thus
upholds his rulings.
C.

Deliberate Indifference
Plaintiff objects “to the recommendation to dismiss the claims

against Jerry [Hahn], Jamie Lee and Cecilia Janiszewski for failure
to state a claim upon which relief may be granted.”

ECF No. 86

at

deliberate

3.

Plaintiff

asserts

that

“the

claim

of

a

indifference to a serious medical condition/need is also a viable
claim for relief as the deliberate indifference was caused by the
virtue of their inactions, and, or inactions after the plaintiff
was in fact seriously injured and disabled by the dangerous
machinery at N.C.F. correctional industries, and by such, plaintiff
is

not,

and

negligence.”

has

not

withdrawn

ECF No. 86 at 3.

any

assertions

of

medical

Plaintiff also notes his objection

to footnote 5 on page 18 of the magistrate judge’s report and
recommendation which deals with examples of what does or does not
constitute a serious injury, stating that “the injuries suffered by
the plaintiff is one diagnosed as mandating treatment and was so
obvious that even a lay person would have recognized the need for
a doctor’s attention.”

ECF No. 86 at 3.

Plaintiff adds at the

bottom of page three that there is an “ongoing grievance against
‘Medical’ - still not getting treated - should not have to file

19

“new” grievance every time new staff member!
charge when suit was filed.”
The

Eighth

Amendment’s

Jamie Lee was in

ECF No. 86 at 3.
prohibition

of

cruel

and

unusual

punishments covers “the treatment a prisoner receives in prison and
the conditions under which he is confined,” Helling v. McKinney,
509 U.S. 25, 31 (1993), including the provision of medical care.
Farmer

v.

Brennan,

511

U.S.

825,

832

(1994).

“[A]

prison

official’s ‘deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.’”

Scinto v. Stansberry, 841

F.3d 219, 225 (4th Cir. 2016) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)).

To state a claim for an Eighth Amendment

violation, a prisoner must establish that: (1) “the deprivation
alleged [was], objectively, ‘sufficiently serious’” and (2) the
“prison officials acted with a ‘sufficiently culpable state of
mind.’”

Id. (alteration in original) (internal quotation marks

omitted) (quoting Farmer, 511 U.S. at 834).
Under the first “objective” prong, an official’s actions are
“sufficiently serious” if the deprivation is “extreme,” “meaning
that it poses a serious or significant physical or emotional injury
resulting from the challenged conditions, or a substantial risk of
such serious harm resulting from . . . exposure to the challenged
conditions.” Id. (internal quotation marks omitted) (alteration in
original). Where the prisoner alleges deprivation of medical care,

20

the prisoner must establish “a ‘serious’ medical need that has
either been diagnosed by a physician as mandating treatment or
. . . is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.”

Id. (alteration in

original) (internal quotation marks omitted).
Under the second “subjective” prong, prison officials must
have acted with deliberate indifference. Id. “To prove deliberate
indifference, plaintiffs must show that ‘the official kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety.’”

Id.

(alterations in original) (quoting Farmer, 511 U.S. at 297).
“[T]he plaintiff must show that the official was ‘aware of facts
from which the inference could be drawn that a substantial risk of
serious harm exist[ed], and . . . dr[ew] th[at] inference.’”

Id.

(alterations and emphasis in original) (quoting Farmer, 511 U.S. at
297).

Where the prisoner alleges deprivation of medical care, the

prisoner must show “the official’s actual subjective knowledge of
both the inmate’s serious medical condition and the excessive risk
posed by the official’s action or inaction.”

Id. at 226 (internal

quotation marks omitted) (brackets omitted).

The prisoner must

prove either that the official had actual knowledge of the medical
condition and risk or that the risk was obvious.
claim

for

deliberate

indifference

requires

Id.
more

Moreover, a
than

mere

negligence, as “deliberate indifference describes a state of mind
more blameworthy than negligence,” Farmer, 511 U.S. at 835, and

21

“even officials who acted with deliberate indifference may be ‘free
from liability if they responded reasonably to the risk.’” Scinto,
841 F.3d at 226 (quoting Farmer, 511 U.S. at 844).
In its de novo review of plaintiff’s claim of deliberate
indifference to a serious medical need against defendants Jerry
Hahn, Jamie Lee, and Cecilia Janiszewski, this Court finds that
plaintiff’s

allegations

Plaintiff’s

argument

against

amounts

Hahn

to

a

and

Janiszewski

disagreement

with

fail.
the

professional judgment and course of treatment selected by these
healthcare providers, and does not rise to the level of a plausible
constitutional claim. The magistrate judge correctly noted that to
the extent a grievance attached to plaintiff’s complaint could be
construed as exhausting any claims against medical providers, it
was filed two months before defendant Lee began her employment as
the Administrator of Wexford at NCF, and therefore cannot be
construed

as

exhausting

his

claims

against

this

defendant.

Plaintiff makes no allegation that Ms. Lee personally treated the
plaintiff,
medications.

ever

examined

his

hand

or

ever

prescribed

any

Accordingly, this Court finds that even if the

plaintiff had exhausted his administrative grievances against Ms.
Lee, his complaint as to her is subject to dismissal for failure to
state a claim for relief.

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IV.

Conclusion

For the reasons set forth above, the magistrate judge’s report
and recommendation (ECF No. 84) is AFFIRMED and ADOPTED.
Accordingly, the motion to dismiss filed by Robert Whitehead
and Don Zielinsky (ECF No. 41) is GRANTED IN PART and DENIED IN
PART. More specifically, plaintiff’s claim one regarding an unsafe
work environment is DISMISSED WITH PREJUDICE for failure to state
a claim upon which relief may be granted.

To the extent that the

plaintiff attempts to include defendants Robert Whitehead and Don
Zielinsky in his claim four, regarding medical care, the same is
DISMISSED WITH PREJUDICE. However, defendants Robert Whitehead and
Don Zielinsky motion to dismiss is DENIED as to plaintiff’s claims
two and three alleging violations of equal protection, and a
scheduling order will be entered by separate order. The motions to
dismiss filed by defendants Jerry Hahn and Cecilia Janiszewski (ECF
No. 44) and defendant Jamie Lee (ECF No. 49) are GRANTED, and the
claims against these three defendants are DISMISSED WITH PREJUDICE
for failure to state a claim upon which relief may be granted.
Plaintiff’s objections to the report and recommendation (ECF No.
86) are OVERRULED.
This

case

shall

PROCEED

only

as

to

the

claims

against

defendants Robert Whitehead and Don Zielinsky alleging violations
of

equal

protection,

and

this

Court

will

scheduling order with regard to those claims.

23

enter

a

separate

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.
DATED:

March 28, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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