Robinson v. Our Lady of Lourdes Memorial Hospital, Inc.

Filing 6

ORDER adopting Report and Recommendations re 4 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Pebbles' Report, Recommendation, and Order (Dkt. No. 4) is ADOPTED in its entirety; and the Court furtherORDERS that Plai ntiff's motion for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and the Court further ORDERS that Plaintiff's complaint in this action is dismissed in all respects, with leave tofile an amended complaint within thirty (30) da ys of the date of this Order; and the Court further ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case, without further order of this Court; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 10/14/14. [copy of order mailed to plaintiff via certified mail/return receipt] (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
NIKITA N. ROBINSON,
Plaintiff,
vs.

3:14-cv-0308
(MAD/DEP)

OUR LADY OF LOURDES MEMORIAL
HOSPITAL, INC.,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

NIKITA N. ROBINSON
P. O. Box 3270
Binghamton, New York 13902
Plaintiff pro se

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff commenced this action pro se on March 21, 2014, against Our Lady of Lourdes
Memorial Hospital, Inc. ("Lourdes"). See Dkt. No. 1. Plaintiff asserts claims pursuant to Title
VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Americans With
Disabilities Act ("ADA"), 42 U.S.C. § 12, 101 et seq.; and 42 U.S.C. § 1983. Plaintiff claims
that, during the course of her employment, she was exposed to unlawful harassment, including at
least one racial remark by an emergency room physician, and that Plaintiff's complaints to
management and human resources personnel at Lourdes were unavailing. See Dkt. No. 1 at 8-13.
Plaintiff's employment at Lourdes was involuntarily terminated on May 15, 2013. See id. at 13.
Plaintiff was not provided a specific reason for the termination, although one Lourdes
administrator indicated that Plaintiff's lack of availability for work was among the reasons for the

decision. See id. Plaintiff also alleges that she had previously requested an accommodation to
her schedule, under the ADA, due to her attention deficit hyperactivity disorder ("ADHD"). See
id. at 13, 22, 25.
In a Report, Recommendation, and Order, Magistrate Judge Peebles granted Plaintiff's
application to proceed in forma pauperis and reviewed the sufficiency of the complaint. See Dkt.
No. 4. As to Plaintiff's section 1983 claim, the report found that Plaintiff failed to plausibly
allege any state action and, therefore, the claim is subject to dismissal. See id. at 10. Further,
Magistrate Judge Peebles found that Plaintiff failed to allege plausible facts demonstrating that
she is disabled within the meaning of the ADA. See id. at 11-13. Finally, with respect to
Plaintiff's Title VII claims, Magistrate Judge Peebles found that they are subject to dismissal for
two reasons: (1) "[P]laintiff fails to allege that she is African American or may otherwise be
considered part of a protected class for purposes of Title VII[;]" and (2) "although it is explicitly
alleged that a physician made a derogatory remark about black people, there are no other
allegations that suggest the harassment [P]laintiff allegedly endured was because of her race." Id.
at 14–15. Finally, Magistrate Judge Peebles recommended that, in light of her pro se status,
Plaintiff be afforded an opportunity to amend her complaint to correct the identified deficiencies.
See id. at 16-17.
In a letter dated May 27, 2014, Plaintiff claims that she has written and audio evidence
which substantiates her claims "regarding the work environment and the reason(s) for [her]
termination on May 15, 2013." Dkt. No. 5. Plaintiff additionally addresses other evidence that
she will be able to provide, including a statement from her psychiatrist on how the hostile work
environment and her termination impacted her mental health. See id. In this letter, Plaintiff does
not provide specific details regarding the evidence she can provide and does not specifically
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address the deficiencies Magistrate Judge Peebles discussed in his Report, Recommendation, and
Order. See id.
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
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is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Upon a review of Magistrate Judge Peebles' thorough and well-reasoned Report,
Recommendation and Order, Plaintiff's submissions and the applicable law, the Court finds no
clear error in Magistrate Judge Peebles' recommendations and hereby affirms and adopts the
Report, Recommendation and Order as the opinion of the Court. Although Plaintiff indicates that
she has evidence substantiating her claims, she makes this assertion in an entirely conclusory
fashion, which fails to address the deficiencies discussed in Magistrate Judge Peebles' report.
In light of Plaintiff's pro se status, the Court will afford Plaintiff an opportunity to amend
her complaint. If Plaintiff decides to amend her complaint, she must clearly set forth the facts
that give rise to the claim, including, when possible, the dates, times, and places of the alleged
underlying acts, as well as each individual who committed each alleged wrongful act. In addition,
the revised pleading should allege facts demonstrating the specific involvement of each of the
named Defendants that allegedly deprived Plaintiff of her constitutional rights in sufficient detail
to establish that they were connected to those deprivations. See Bass v. Jackson, 790 F.2d 260,
263 (2d Cir. 1986). Finally, Plaintiff is informed that any such amended complaint will replace
the existing complaint, and must be a wholly integrated and complete pleading that does not rely
upon or incorporate by reference any pleading or document previously filed with the Court. See
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Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (quotation omitted).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Pebbles' Report, Recommendation, and Order (Dkt. No.
4) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and the Court further
ORDERS that Plaintiff's complaint in this action is dismissed in all respects, with leave to
file an amended complaint within thirty (30) days of the date of this Order; and the Court further
ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of
this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case,
without further order of this Court; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff in
accordance with the Local Rules.
Dated: October 14, 2014
Albany, New York

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