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Desavage v. Grove

August 6, 2009


The opinion of the court was delivered by: Judge Munley


Before the court are plaintiff's objections (Doc. 9) to the report and recommendation of Magistrate Judge Malachy E. Mannion (Doc. 6), which proposes that we dismiss the plaintiff's complaint with prejudice.


This case arises out of plaintiff's employment while a prisoner at the Pennsylvania State Correctional Institution, Huntingdon. (See Complaint (Doc. 1) (hereinafter "Complt.")). Plaintiff alleges that on January 14, 2009 he began work in the bakery at the prison. (Id.). The "steward" temporarily in charge of the bakery on that day informed plaintiff that he would not be scheduled to work on Thursdays or Fridays. (Id.). As January 15, 2009 was a Thursday, plaintiff did not show up for work. (Id.). When the regular steward, Brenda Grove, returned to work that day, she 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, but did so out of a discriminatory motive. (Id.).

Plaintiff wrote to his unit manager, managers in the food service department, and an employment manager to complain of this treatment. (Id.). One of the food service managers he wrote, Glorioso, responded by pointing out that plaintiff had no right 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 because she felt uncomfortable around him. (Id.). Plaintiff disputes this explanation because he had worked around Grove for four years and she had never found his behavior 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, however, but was soon transferred back to the kitchen. (Id.). While plaintiff did not return to the bakery, he still worked around the very staff member, Grove, who had earlier complained about his work. (Id.). Plaintiff filed another grievance based on this situation. (Id.). In the meantime, Superintendent Lawler denied plaintiff's grievance, and plaintiff appealed that decision. (Id.). Major Hannah denied plaintiff's second grievance as plaintiff awaited the results of his first appeal, finding no evidence of discrimination. (Id.). The prison eventually denied this grievance as well. (Id.). Plaintiff appealed. (Id.). State prison administrators denied both grievances. (Id.). Plaintiff insists that favoritism in job assignments and unfair firings and job assignments continue under Brenda Grove's management. (Id.). Plaintiff contends that Grove's discrimination towards him comes because of the influence of Grove's favored inmates, who introduced "question or hatred towards homosexuals or outright hatred towards me." (Id.).

Plaintiff's complaint, filed June 24, 2009, seeks action from the court to prevent the alleged discrimination he faces, as well as monetary damages against all of the named defendants. In addition to his complaint, plaintiff filed a motion for leave to proceed in forma pauperis ("IFP"). (Doc. 2). After plaintiff filed his complaint, the magistrate judge provided an initial screening to determine whether plaintiff's motion to proceed IFP should be granted. (Doc. 6). The magistrate judge construed plaintiff's claims as founded in due process and concluded that the complaint should be dismissed. Plaintiff had no property interest in particular prison employment, the magistrate judge found, and he thus had no due process claim. Moreover, he does not allege that defendants' behavior constituted cruel and unusual punishment, and thus could not bring a claim on those grounds. After the magistrate judge issued his report and recommendation, the plaintiff filed objections, bringing the case to its present posture.


Plaintiff filed his complaint pursuant to 42 U.S.C. § 1983. This court therefore has jurisdiction pursuant to 18 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

Legal Standard

In disposing of objections to a magistrate judge's report and recommendation, the 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. Carlson, 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 magistrate judge with instructions. Id.

Under 28 U.S.C. § 1915(d), the court is permitted "to consider whether an in forma pauperis complaint is frivolous or malicious before authorizing issuance of the summons and service of the complaint." Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). The court may "dismiss as frivolous claims based on an indisputably meritless legal theory and whose factual contentions are clearly baseless." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). Courts undertake such an evaluation before service of the complaint.


Plaintiff objects to the magistrate judge's findings that he cannot make out either a due process or an equal protection claim. The court ...

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