Pinkston v. University of South Florida Board of Trustees et al

Filing 202

ORDER: Plaintiff Rachel Pinkston's objections (Doc. # 184 ) are overruled. The Report and Recommendation (Doc. # 174 ) is accepted and adopted. Pinkston's construed motion for preliminary injunction (Doc. # 160 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 6/15/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RACHEL PINKSTON,
Plaintiff,
v.

Case No. 8:15-cv-1724-T-33TBM

UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES, et al.,
Defendants.
_____________________________/
ORDER
This matter is before the Court on consideration of
United States Magistrate Judge Thomas B. McCoun III’s Report
and Recommendation on Plaintiff Rachel Pinkston’s construed
motion for preliminary injunction (Doc. # 174), entered on
May 18, 2016. Pinkston filed an objection on June 1, 2016.
(Doc. # 184). Defendants University of South Florida Board of
Trustees, Randy Larsen, David Merkler, and Matthew Battistini
filed a response on June 9, 2016. (Doc. # 197). For the
reasons stated herein, the Court accepts and adopts the Report
and Recommendation.
I.

Background
Pinkston instituted this action on July 24, 2015. (Doc.

# 1). Thereafter, Pinkston filed a First Amended Complaint
(Doc. # 18), which was dismissed with leave to amend (Doc. ##

1

133,

134).

Pinkston

subsequently

filed

a

Second

Amended

Complaint.1 (Doc. # 159). In her Second Amended Complaint,
Pinkston

alleges

she

transferred

from

Florida

Memorial

University to USF in the summer session of 2011. (Id. at 2).
While enrolled at USF, Pinkston sought to obtain a bachelor’s
degree in chemistry. (Id.).
Pinkston registered for a basic biochemistry lab course
at USF for which Merkler was the professor and Battistini, a
graduate student, the teaching assistant. (Id. at 3). Both
Merkler
addition,

and

Battistini

Larsen,

the

are

Caucasian

department

chair

males.
of

the

(Id.).

In

chemistry

department, is a Caucasian male, whereas Pinkston is an
African-American female. (Id. at 2-3). Pinkston received a B, a passing grade for the biochemistry lab course, despite
being subjected to the putative discriminatory actions of
Larsen, Merkler, and Battistini. (Id. at 3, 5-8).
Furthermore, Pinkston alleges she met all graduation
requirements and, as such, purchased a graduation robe and
attended the graduation ceremony on May 1, 2015. (Id. at 3-

1

At the time Judge McCoun entered the instant Report and
Recommendation, two motions to dismiss the Second Amended
Complaint were pending; however, those motions have since
been ruled on and the Second Amended Complaint dismissed.
(Doc. ## 166, 167, 198).

2

4). Then, on May 15, 2015, Pinkston was informed that she
would not being receiving a degree. (Id. at 5). Pinkston
alleges Larsen, Merkler, and Battistini changed her grade for
the biochemistry lab course from a B- to a C-, a failing
grade, to “undermine and take away” her degree “as a last act
of retaliation out of desperation.” (Id.).
Simultaneous

to

the

filing

of

her

Second

Amended

Complaint, Pinkston filed a motion for temporary injunction.
(Doc. # 160). The motion for temporary injunction seeks the
entry

of

an

irreparable

Order

harm

“enjoining

from

Defendants

wrongfully

from

withholding

further

Plaintiff’s

well-earned, paid for, unconditional, certified and conferred
degree in Chemistry with an emphasis in Biochemistry,” and
“direct[ing] Defendants to take corrective actions as needed
to

reissue,

deliver,

or

otherwise

reinstate

Plaintiff’s

Bachelor’s degree, earned BCH 3023L course grade of a B-, and
weighted and unweighted grade point average calculation.”
(Id. at 14, ¶¶ 1-2).
The

Court

denied

Pinkston’s

motion

for

temporary

injunction to the extent it sought the entry of a temporary
restraining order and, to the extent it could be construed as
a motion for preliminary injunction, the motion was referred
to Judge McCoun. (Doc. # 161). Judge McCoun entered a Report

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and Recommendation on May 18, 2016, recommending Pinkston’s
construed motion for preliminary injunction be denied. (Doc.
# 174). Pinkston filed an objection, which is now ripe for
consideration. (Doc. # 184).
II.

Discussion
After conducting a careful and complete review of the

findings and recommendations, a district judge may accept,
reject

or

modify

Recommendation.

28

the

magistrate

U.S.C.

§

judge’s

636(b)(1);

Report

and

Williams

v.

Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459
U.S. 1112 (1983). In the absence of specific objections, there
is

no

requirement

that

a

district

judge

review

factual

findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993), and the court may accept, reject or modify,
in whole or in part, the findings and recommendations. 28
U.S.C.

§

636(b)(1)(C).

The

district

judge

reviews

legal

conclusions de novo, even in the absence of an objection. See
Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32
(S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th Cir. 1994) (Table).
To begin, Pinkston’s factual objections are too generic
to sustain her burden. As the court stated in United States
v. Schultz, “[a]fter a magistrate judge has issued a report

4

and recommendation under § 636(b)(1)(B), a party that wishes
to preserve its objection must clearly advise the district
court and pinpoint the specific findings that the party
disagrees

with.”

565

F.3d

1353,

1360

(11th

Cir.

2009)

(emphasis added). Rather than pointing to a specific finding,
Pinkston generally objects to Judge McCoun’s “recitation of
events which occurred prior to the establishment of the status
quo.” (Doc. # 184 at ¶ 1).
In a similar vein, Pinkston objects on the basis that
Judge McCoun “base[d] his analysis on, in part, documents
wrongfully submitted as attachments to declarations provided
by

Defendants,”

which

Pinkston

argues

are

inadmissible

evidence. (Id. at ¶ 3). Putting aside the generality of the
objection, Pinkston’s argument ignores the fact that a court
“may rely on affidavits and hearsay materials which would not
be admissible evidence for a permanent injunction” at the
preliminary injunction stage. Levi Strauss & Co. v. Sunrise
Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).
As for Pinkston’s objections to Judge McCoun’s legal
conclusions,
objections

those
are,

in

too

are

reality,

unpersuasive.
merely

an

Pinkston’s

amalgamation

of

conclusory arguments and expressions of disagreement. For
example, Pinkston objects to Judge McCoun’s conclusion that

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Pinkston failed to demonstrate an irreparable injury in the
absence of a preliminary injunction by simply concluding that
her rights under the Fourth, Fifth, and Fourteenth Amendments
are being violated. (Doc. # 184 at ¶ 4). However, Pinkston
provides no citation——to a fact in the record or case from
any court——demonstrating that money damages are inadequate to
compensate her for any delay in receiving her degree, if in
fact she prevails in this suit.
Thus, after conducting a careful and complete review of
the findings, conclusions and recommendations, and giving de
novo review to matters of law, the Court accepts the factual
findings and legal conclusions of the magistrate judge and
the recommendation of the magistrate judge. In so doing, the
Court

notes

that

“[i]n

this

Circuit,

‘a

preliminary

injunction is an extraordinary and drastic remedy not be
granted unless the movant clearly establishe[s] the “burden
of persuasion”’ as to each of the four prerequisites” and the
“grant of [a] preliminary injunction ‘is the exception rather
than the rule’ . . . .” Siegel v. LePore, 234 F.3d 1163, 1176
(11th

Cir.

2000)

(citations

and

omitted).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:

6

original

alterations

(1)

Plaintiff Rachel Pinkston’s objections (Doc. #

184) are OVERRULED.
(2)

The Report and Recommendation (Doc. # 174) is

ACCEPTED and ADOPTED.
(2)

Pinkston’s construed motion for preliminary

injunction (Doc. # 160) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
15th day of June, 2016.

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