Freeman v. Rochester Psychiatric Center et al

Filing 150

ORDER denying 95 Plaintiff's Motion for TRO and adopting 124 Report and Recommendation 124 . Signed by Hon. Michael A. Telesca on 02/26/2016. (ET)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DWAYNE FREEMAN,
Petitioner,
-v-

12-CV-6045
ORDER

ROCHESTER PSYCHIATRIC CENTER,
Superintendent,
Respondent.

Pro se petitioner Dwayne Freeman (“petitioner” or
“Freeman”)

brings

this

action

against

his

employer,

defendant Rochester Psychiatric Center (“RPC”), pursuant
to Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e
et

seq.,

alleging

race

and

gender-based

employment

discrimination and retaliation related to his placement
on unpaid suspension in February 2015 following a dispute
with RPC’s Director of Nursing.
before

this

Court

for

The matter is presently

determination

of

plaintiff’s

Objections to the Report and Recommendation of United
States Magistrate Judge Marian W. Payson pursuant to 28
U.S.C. § 636(b)(1).1

1

Judge Payson filed her Report and

The facts of this case were set forth in Judge Payson’s Report and
Recommendation, and familiarity with those facts is presumed..

Recommendation in which she recommended that this Court
deny Freeman’s motion for injunctive relief in which he
seeks
#124).

payment

from

RPC

during

his

suspension.

(Dkt.

On July 27, 2015, Freeman filed objections to the

Report and Recommendation (Dkt. # 126).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal Rule
of Civil Procedure 72, this Court must make a de novo
determination

of

Recommendation

to

those

portions

which

of

objections

the
have

Report
been

and

made.

However, “in a case where a party makes only conclusory
or general objections, or simply reiterates his original
arguments,

the

Court

reviews

the

Report

and

Recommendation only for clear error.” Butto v. Collecto,
Inc.,

290

F.R.D.

372,

379

(E.D.N.Y.

2013)

(internal

quotation marks omitted).
In his motion, Freeman claims that his loss of pay
during his suspension has deprived him of the ability to
pay his rent and, therefore, he is facing eviction.

The

Report and Recommendation notes that Freeman has not been
served with an eviction notice; he receives approximately
$1600.00 per month in workers’ compensation benefits and
2

supplemental insurance benefits through his union. At
oral argument, Freeman informed the Court that he had
also received a $1500.00 loan from his brother and was
single, with no dependants.

In his Objections to the

Report and Recommendation, Freeman primarily contends
that

(1)

he

has

sufficiently

shown

a

likelihood

of

success on the merits with respect to his complaint, and
(2) he makes conclusory or general assertions that he has
suffered irreparable injury as a result of his unpaid
suspension.

See Objections (Dkt. #126) ¶¶ 5-9, 10-14.

Here, Freeman has simply raised various forms of the
same general arguments made before Judge Payson.

As

noted in the Report and Recommendation, although Freeman
cited the threat of eviction as the primary justification
for

his

requested

injunctive

relief,

there

is

no

indication in his moving papers, his statements at oral
argument, or in his Objections that eviction is imminent
or that he is unable to pay his monthly rent.

Moreover,

it is well settled that financial distress does not
constitute irreparable harm in employee discharge cases
unless truly extraordinary circumstances are shown.” Holt
3

v. Cont'l Grp., Inc., 708 F.2d 87, 90–91 (2d Cir. 1983),
cert. denied, 465 U.S. 1030 (1984). As noted in the
Report and Recommendation, extraordinary circumstances
have not been established here.
do

not

point

to

any

error

Plaintiff’s Objections
in

the

Report

and

Recommendation's legal analysis or identify any facts or
issues

that

were

overlooked.

Therefore,

applies a clear error standard of review.

the

Court

The Court has

reviewed Judge Payson’s comprehensive and well-reasoned
Report

and

Recommendation

and

finds

no

clear

error.

Accordingly, the Objections (Dkt. #126) are denied.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court
accepts and adopts the Report and Recommendation (Dkt.
#124) in its entirety, and, for the reasons stated in the
Report and Recommendation, plaintiff’s motion is denied.2
In

addition,

because

Freeman

has

failed

to

make

a

“substantial showing of a denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), the Court declines to

2

The Court has also received and considered plaintiff’s recent complaints that his
extensive filings in this matter “have been ignored.” After reviewing the approximately 150
docket entries in this case, the Court is satisfied that both the Magistrate Court and the District
Court have been diligent in their responsibilities to the parties.
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issue a certificate of appealability.

The Court hereby

certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good
faith and therefore denies leave to appeal as a poor
person.
SO ORDERED.
S/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

February 26, 2016
Rochester, New York

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