Pierce v. Greene, CIVIL ACTION NO.: 2:20-cv-7
| Decision Date | 16 December 2020 |
| Docket Number | CIVIL ACTION NO.: 2:20-cv-7 |
| Parties | SAM PIERCE, Plaintiff, v. TYRONE GREENE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
Plaintiff filed this action, asserting claims under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.1 Doc. 5 at 3. This matter is before the Court for a frivolity screening under 28 U.S.C. § 1915A. For the reasons stated below, I RECOMMEND the Court DISMISS Plaintiff's Complaint, as amended, in its entirety. Because I have recommended dismissal of all of Plaintiff's claims, I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff leave to proceed in forma pauperis on appeal. I DENY Plaintiff's Motion for Leave to Proceed in Forma Pauperis in this Court. Doc. 2.
Plaintiff claims he attempted to dine at the restaurant Defendant J's Fish & Chicken, but J's Fish & Chicken's owner and employees refused to let Plaintiff into the restaurant because his service dog was with him. Doc. 5-1 at 4. Plaintiff has a service dog to assist him following a stroke. Doc. 5-2 at 1. Plaintiff alleges he ate once at Defendant J's Fish & Chicken with no problem, but when he returned to the restaurant, Defendant Monica Washington, the owner, "chewed [him] out" because he was accompanied by his service dog. Id. Additionally, his waiter, Defendant Tyrone Greene, refused to serve Plaintiff unless Plaintiff put a blanket down for his dog. Id. On November 27, 2019, Plaintiff returned to the restaurant a third time, and Defendant Mr. J LNU told him he could not dine at the restaurant. Id.
A federal court is required to conduct an initial screening of all complaints filed by prisoners and plaintiffs proceeding in forma pauperis. 28 U.S.C. §§ 1915A(a), 1915(a). During the initial screening, the court must identify any cognizable claims in the complaint. 28 U.S.C. § 1915A(b). Additionally, the court must dismiss the complaint (or any portion of the complaint) that is frivolous, malicious, fails to state a claim upon which relief may be granted, or which seeks monetary relief from a defendant who is immune from such relief. Id. The pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993).
A claim is frivolous under § 1915(e)(2)(B)(i) if it is "without arguable merit either in law or fact." Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)). In order to state a claim upon which relief may be granted, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state a claim, a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not" suffice. Twombly, 550 U.S. at 555.
Plaintiff complains Defendants refused him service because of his disability and made it difficult for him and his service dog to dine at Defendant J's Fish & Chicken (a restaurant), violating Title II of the ADA and the Rehabilitation Act. Doc. 5-1 at 3; Doc. 5-2 at 1. Because "causes of action under Title II of the ADA and the Rehabilitation Act are essentially identical," the Court will consider the claims simultaneously. R.W. v. Bd. of Regents of the Univ. Sys. of Ga., 114 F. Supp. 3d 1260, 1282 (N.D. Ga. 2015) (quoting Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998)); Wilson v. Smith, 567 F. App'x 676, 678-79 (11th Cir. 2014); Badillo v. Thorpe, 158 F. App'x 208, 214 (11th Cir. 2005) ().
Title II of the ADA prohibits public entities from discriminating against disabled individuals. See 42 U.S.C § 12132; Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Under Title II of the ADA, a plaintiff must plead and ultimately show three elements:
(1) that he is a qualified individual with a disability; (2) that he was excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and(3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability.
Am. Ass'n of People with Disabilities v. Harris, 647 F.3d 1093, 1101 (11th Cir. 2011).
Plaintiff's contention that a private business, Defendant J's Fish & Chicken, and its employees denied him service does not set forth a violation of Title II of the ADA. "Only public entities are liable for violations of Title II of the ADA." Hunt v. Warden, 748 F. App'x 894, 898 (11th Cir. 2018); see 42 U.S.C. § 12132 (). Defendants are not public entities and cannot be held liable under Title II.
Likewise, § 504 of the Rehabilitation Act states: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a); Bd. of Regents, 114 F. Supp. 3d at 1282. That is, the Rehabilitation Act only applies to programs or activities receiving federal financial assistance. Defendants are not a program or activity receiving such assistance, and thus, cannot be sued under the Rehabilitation Act.
Accordingly, I RECOMMEND the Court DISMISS Plaintiff's Complaint, as amended.
II. Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff has not yet filed a notice of appeal, it is proper to address these issues in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) ().
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous and not brought in good faith if it is "without arguable merit either in law or fact." Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff's claims, there are no non-frivolous issues to raise on appeal, and an appeal on these claims would not be taken in good faith. Thus, the Court should DENY Plaintiff in forma pauperis status on appeal.
For the reasons set forth above, I RECOMMEND the Court DISMISS Plaintiff's Complaint, as amended, in its entirety. Because I have recommended dismissal of all of Plaintiff's claims, I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff leave to proceed in forma pauperis on appeal. I DENY Plaintiff's Motion for Leave to Proceed in Forma Pauperis in this Court. Doc. 2.
Any objections to this Report and Recommendation shall be filed within 14 days of today's date. Objections shall be specific and in writing. Any objection that the MagistrateJudge failed to address a contention raised in the Complaint must be included. Failure to file timely, written objections will bar any later challenge or review of the Magistrate Judge's factual findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro Dade Police Dep't Station #4, No. 17-11264, 2020 WL 6039905, at *4 (11th Cir. Oct. 13, 2020). To be clear, a party waives all rights to challenge the Magistrate Judge's factual findings and legal conclusions on appeal by failing to file timely, written objections. Harrigan, 2020 WL 6039905, at *4; 11th Cir. R. 3-1. A copy of the objections must be served upon all other parties to the action.
Upon receipt of Objections meeting the specificity requirement set out above, a United States District Judge will make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not meeting the specificity requirement set out above will not be considered by a District Judge. A party may not appeal a Magistrate Judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or...
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