Freeman v. Rochester Psychiatric Center et al

Filing 85

-CLERK TO FOLLOW UP- ORDER denying 62 Plaintiff's Motion for Injunctive Relief; adopting 84 Report and Recommendations of Honorable Marian W. Payson. Signed by Hon. Michael A. Telesca on 12/2/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DWAYNE FREEMAN,
Plaintiff,

12-CV-6045T
DECISION
and ORDER

v.
ROCHESTER PSYCHIATRIC CENTER, et.

al.

Defendants.
________________________________________

Plaintiff Dwayne Freeman (“Freeman”) proceeding pro
se, brings this employment discrimination action against
several defendants including the Rochester Psychiatric
Center,

a

psychiatric

care

facility

New York State Office of Mental Health,

operated

by

the

claiming that he

was discriminated against on the basis of his race and
sex.

Specifically, plaintiff, a black male, claims that

he has been harassed by white female employees, and that
a female white coworker spread vile rumors about him.

He

claims

of

that

in

response

to

his

complaining

discrimination, he was charged with harassing coworkers.
By motion dated July 24, 2014, Freeman seeks an order
enjoining the defendants from taking any disciplinary
action against him, and prohibiting supervisors from
having face-to-face interactions with him.

On July 28,

2014, I referred plaintiff’s motion to United States
Magistrate

Judge

recommendation.
November

7,

Marian

W.

Payson

for

a

report

and

In a Report and Recommendation dated

2014,

Judge

Payson

recommended

that

plaintiff’s motion be denied on grounds that he had
failed to demonstrate that he was subject to irreparable
harm in the absence of an injunction being issued, or
that he would likely succeed on the merits of his case.
Judge Payson further found that Freeman had failed to
demonstrate the existence of serious questions regarding
the merits of his claim that would constitute a fair
basis for litigation.
Because neither party has filed an objection to the
November 11, 2014 Report and Recommendation, the parties
have waived their rights to de novo review pursuant to
28 U.S.C. § 636(b)(1). U.S. v. Male Juvenile, 121 F.3d 34
(2nd Cir. 1997).

Additionally, the Second Circuit has by

rule adopted the position that where the parties have
received notice of the consequences of failing to object
to a Magistrate Judge’s Report and Recommendation, such
a failure will preclude any further review of a Decision
2

adopting a Magistrate Judge’s Report and Recommendation.
Id.

See also, Small v. Secretary of Health and Human

Services, 892 F.2d 15 (2nd Cir. 1989)(“failure to object
timely to a magistrate’s report operates as a waiver of
any

further

decision”).

judicial

review

of

the

magistrate’s

Accordingly, I may only review Magistrate

Payson’s Report and Recommendation for clear error.
For

the

reasons

set

forth

in

Judge

Payson’s

November 11, 2014 Report and Recommendation, I find that
Judge Payson properly determined that plaintiff is not
entitled to injunctive relief. Accordingly, I adopt Judge
Payson’s Report and Recommendation in its entirety, and
deny plaintiff’s motion for injunctive relief.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A.

Telesca

MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
December 2, 2014

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