Freeman v. Kirisits et al

Filing 43

DECISION AND ORDER granting 25 Motion to Modify; denying 23 Motion to Amend or Correct; denying 24 Motion for reconsideration. Signed by Hon. Michael A. Telesca on 5/18/17. (Copy of this Decision and Order sent by first class mail to Plaintiff.) (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Dwayne Freeman,
Plaintiff,
16-CV-06668
DECISION AND ORDER

-v-

Christopher Kirisits, Phil
Griffin, Colomba Misseritti,
Doug Lee, Cynthia Crowell,
Linda Gray, Lidia Colak,
Thomas Rinaldo, Andrew Cuomo,
and Rochester Psychiatric
Center,
Defendants.

I.

Introduction
Plaintiff Dwayne Freeman (“plaintiff” or

“Freeman”), former

employee of defendant Rochester Psychiatric Center (“RPC”), an
agency of the New York State Office of Mental Health (“OMH”),
brings this pro se action pursuant to 42 U.S.C. § 1983 and Section
504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 701 et seq.,
seeking monetary, declaratory and injunctive relief for violations
of his federal civil rights.

The complaint alleges that plaintiff

was unlawfully suspended without paid and later terminated after he
requested a reasonable accommodation to be exempt from working in
RPC’s geriatric unit because it exacerbated his documented anxiety
disorder.
Defendants filed a motion to dismiss the complaint for lack of
subject-matter jurisdiction pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure on December 2, 2016.

For

the reasons stated in the Court’s February 6, 2017 Decision and
Order (Docket No. 17), it denied defendants’ motion to dismiss
plaintiff’s employment discrimination claim pursuant to § 504 of
the Rehabilitation Act against defendant RPC only and granted the
motion to dismiss the complaint in all other respects.

On March 3,

2017, plaintiff filed a motion for reconsideration of the Court’s
Decision and Order (Docket No. 24), a motion to amend the complaint
(Docket No. 23), and a motion to modify his motion to amend by
adding a declaration clause (Docket No. 25).
II. Factual Background
The parties’ familiarity with the facts and history of this
case,

which

are

set

forth

more

thoroughly

in

the

Court’s

February 6, 2017 Decision and Order, is assumed.
Plaintiff was employed by RPC as a Mental Hygiene Therapy Aide
from July 3, 2000 to April 18, 2016.

Plaintiff asserts that he

developed an anxiety disorder related to working conditions and
events that had occurred when he was assigned to the geriatric unit
(or “E-1 Unit”).

In January or February 2015, plaintiff submitted

a written request for a “reasonable accommodation” that relieved
him of any duties on the E-1 Unit, at the recommendation of his
therapist.

His therapist opined that plaintiff was at risk of

having angry outbursts if he was subjected to working with the
geriatric residents.

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On February 3, 2015, plaintiff refused several orders to
report to the E-1 Unit and requested to be assigned to another
unit.

He was questioned in the Personnel Office and sent home

later that day.

On February 19, 2015, plaintiff was informed that

he was being suspended without pay pending the outcome of a
termination proceeding resulting from his insubordination.

In his

complaint, plaintiff alleges that all charges related to his
alleged insubordination were based on documented medical reasons.
Following notice of the disciplinary charges against him, both
an expedited hearing and a full-length pre-termination hearing were
held.

Plaintiff was found guilty of insubordination as charged,

and he was ultimately terminated by RPC. Plaintiff filed an action
against RPC and several individual RPC employees on October 11,
2016, alleging various violations of his procedural and substantive
due rights, the Equal Protection Clause, and Section 504 of the
Rehabilitation Act.
III. Discussion
A.

Motion to Reconsider

The standard for granting a motion for reconsideration is
strict and will generally be denied “unless the moving party can
point to controlling decisions or data that the court overlooked.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
The Court has throughly considered the arguments raised by
plaintiff in his motion and notes that they were previously raised

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in his original memorandum of law in response to defendants’ motion
to dismiss the complaint.

It is well settled that “a motion to

reconsider should not be granted where the moving party seeks
solely to relitigate an issue already decided." Shrader, 70 F.3d at
257.

Not only is plaintiff seeking to relitigate issues that have

already been reviewed by this Court, the motion to reconsider does
not assert any controlling decisions or data overlooked by the
Court that could “reasonably be expected to alter the conclusion
reached” in its Decision and Order. Shrader, 70 F.3d at 257.
Consequently, Plaintiff’s motion for reconsideration of the
Court’s February 6, 2017 Decision and Order is denied.
B.

Motion to Amend the Complaint

In his related application, plaintiff has filed a motion
seeking leave to amend the complaint in an attempt to allege, among
other things, facts establishing his possession of a property right
in

his

continued

employment under

bargaining agreement (“CBA”).

the

terms

of

a

collective

The Court has reviewed the proposed

pleadings, which repeat the allegations of the original complaint
apart from additional facts and documents concerning the terms of
his employment under the collective bargaining agreement.

The

Court denies plaintiff leave to file an amended complaint for the
reasons stated below.
As an initial matter, the Court denies plaintiff’s motion for
leave to amend as to plaintiff’s Equal Protection Clause claims in

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counts 17, 18, 19, and 20 of the proposed amended complaint for the
reasons stated in the February 6, 2017 Decision and Order. See Self
v. LaValley, No. 9:10-CV-1463 GTS/TWD, 2012 WL 7810950, at *13
(N.D.N.Y. Dec. 27, 2012) (holding that a proposed amended complaint
repeating many of the claims raised in the original complaint is
subject

to

dismissal),

report

and

recommendation

adopted,

No. 9:10-CV-1463 GTS/TWD, 2013 WL 1294448 (N.D.N.Y. Mar. 27, 2013).
The

Court

further

denies

plaintiff

leave

to

amend

his

substantive due process claims because the proposed pleadings
mirror the substantive due process claims raised in the original
complaint.

Moreover, such claims

are based on the same facts and

circumstances underlying plaintiff’s procedural due process claims.
In any event, the Court further finds that both the original
complaint and the proposed amended complaint fail to allege any
conduct so egregious that it “goes beyond merely offending some
fastidious squeamishness or private sentimentalism and can fairly
be viewed as so brutal and offensive to human dignity as to shock
the conscience.” Smith ex rel. Smith v. Half Hollow Hills Cent.
Sch. Dist., 298 F.3d 168, 173 (2d Cir. 2002).

The most severe

conduct alleged is that three of the defendants “led the Arbitrator
to believe” that the E-1 Unit was no louder or noisier than any
other RPC unit.

This conduct, if true, falls well short of

anything so brutal and offensive to human dignity as to shock the
conscience,

as

does

defendants’

5

implementation

of

plaintiff’s

unpaid

suspension.

Consequently,

leave

to

amend

plaintiff’s

substantive due process claims is denied.
With respect to plaintiff’s procedural due process claims, the
Court agrees with plaintiff that it is well settled “that a
collective

bargaining

agreement

may

give

rise

to

a

property

interest in continued employment.” Ciambriello v. Cty. of Nassau,
292 F.3d 307, 314 (2d Cir. 2002).

“A person’s interest in [such]

a benefit constitutes a ‘legitimate claim of entitlement’ if it is
supported by contractual or statutory language that might be
invoked at a hearing.” Danese v. Knox, 827 F. Supp. 185, 190
(S.D.N.Y. 1993) (quoting Perry v. Sindermann, 408 U.S. 593, 601
(1972).

“[A]n express restriction on the right to discharge, and

not simply an implied limitation, is essential.” McCarthy v. Bd. of
Trustees of Erie Cmty. Coll., 914 F. Supp. 937, 942 (W.D.N.Y.
1996)(citing Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 336
(1987) (emphasis in original).
The Court finds that although the procedural due process
allegations largely mirror those of the original complaint, the
proposed pleadings,
therein,

have

and

the

demonstrated,

additional
at

this

documents

stage

of

incorporated

proceedings,

a

property interest in plaintiff’s continued employment that is
sufficient to satisfy the first prong of the due process analysis.
See

O’Connor

v.

Pierson,

426

F.3d

187,

196

(2d

Cir.

2005).

However, the second step of the Court’s due process inquiry “asks
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what process was due to the plaintiff, and . . . whether that
constitutional minimum was provided” here.

Narumanchi v. Bd. of

Trs. of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988) (citing
Mathews v. Eldridge, 424 U.S. 319, 333-34 (1976)). Defendants
contend that “plaintiff’s reliance on the collective bargaining
agreement actually shows no deprivation of a vested property right
and an extensive amount of process.” (Docket No. , p. 5).

The

Court agrees.
“When reviewing alleged procedural due process
violations, the Supreme Court has distinguished between
(a) claims based on established state procedures and (b)
claims based on random, unauthorized acts by state
employees. In the latter case, the Due Process Clause of
the Fourteenth Amendment is not violated when a state
employee intentionally deprives an individual of property
or liberty, so long as the State provides a meaningful
postdeprivation remedy.”
Hellenic Am. Neighborhood Action Comm. v. City of N.Y., 101 F.3d
877, 880 (2d Cir. 1996)(internal citations omitted).
The allegations contained in counts one, six and eight of the
proposed

pleadings

assert

that

plaintiff

was

deprived

of

an

adequate pre-deprivation hearing (counts one and six) and prompt
post-deprivation proceedings (count eight).

Plaintiff further

alleges that during his pre-termination hearing, he was: prevented
from invoking the discretion of the “final decision maker” (counts
two and seven); prevented from presenting a defense (counts three
and four); and subjected to a vague determination of guilt (count
five).

The remaining procedural due process claims allege that

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defendants relied on an unconstitutionally-vague “potential danger”
provision of Article 33 of the CBA when they suspended him without
pay prior to his termination (counts 22 through 24).
With

respect

to

“Factual Statement”
complaint

the

pre-deprivation

contained

establishes

that

in
he

hearing

plaintiff’s
was

claims,

proposed

afforded

notice

the

amended
of

the

disciplinary charges against him and a pre-termination hearing
during which he was represented by counsel, his testimony was
taken, and he was able to present evidence. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546, 547-48 (1985) (holding that
“all the process that is due is provided by a pretermination
opportunity

to

respond,

administrative procedures.”).

coupled

with

post-termination

Plaintiff’s other claims concerning

the hearing itself are devoid of any facts that could be liberally
construed to give rise to due process violations.

To the extent

that the proposed pleadings can be construed to assert a procedural
due process violation based on his unpaid suspension due to the
“potential danger” provision, plaintiff has not set forth any facts
to satisfy either step of the Court’s due process analysis.
Further, the only reference a violation of plaintiff’s postdeprivation rights is the brief mention of his pre-termination
hearing held on February 11, 2016 in count eight of the proposed
amended complaint. The Court notes, however, that plaintiff’s pre-

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termination hearing has no bearing on the existence of posttermination procedures.
For these reasons, the Court finds that plaintiff has failed
to sufficiently allege that he was deprived of his procedural due
process rights.
demonstrate

Although an amended complaint may be able to

plaintiff’s

property

interest

in

his

continued

employment pursuant to a “just cause” provision of the CBA, the
proposed pleadings fail to allege a violation of his constitutional
due process rights.

Consequently, plaintiff’s motion for leave to

amend the complaint as to these claims is denied.

In light of the

foregoing, the Court denies plaintiff’s motion for leave to file an
amended complaint in its entirety.

This action will therefore

proceed in accordance with the Court’s February 6, 2017 Decision
and Order.
IV.

Conclusion
For the reasons set forth above, plaintiff’s motion to modify

(Docket No. 25) is granted. Plaintiff’s motion for reconsideration
(Docket No. 24) and his motion for leave to file an amended
complaint (Docket No. 23) are denied in all respects.
IT IS SO ORDERED.
S/Michael A. Telesca
______________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

May 18, 2017
Rochester, New York

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