Rose v. Walmart Corp.

• Docket Number: Civil Action 21-CV-4092
• Decision Date: 19 January 2022
• Parties: JIMI ROSE, Plaintiff, v. WALMART CORPORATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

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JIMI ROSE, Plaintiff, v. WALMART CORPORATION, et al., Defendants.

Civil Action No. 21-CV-4092

United States District Court, E.D. Pennsylvania

January 19, 2022

MEMORANDUM

JEFFREY L. SCHMEHL, J.

This matter comes before the Court by way of a Complaint (ECF No 2) submitted by pro se Plaintiff Jimi Rose, a prolific litigant in this Court, against Walmart Corporation and several Walmart employees. Also before the Court is Rose's Motion for Leave to Proceed In Forma Pauperis (ECF No. 1). Because it appears that Rose is unable to pay the filing fee, the Court will grant him leave to proceed in forma pauperis. For the following reasons, Rose's federal claims will be dismissed with prejudice for failure to state a claim pursuant to 28 U.S.C § 1915(e)(2)(B)(ii), and his state law claims will be dismissed for lack of jurisdiction without prejudice to Rose's right to proceed in an appropriate state court.

I. FACTUAL ALLEGATIONS^[1]

In the Complaint, Rose describes that he “has 2 bad lungs, a bad heart, high blood pressure, sugar diabetes and a bad kidney, ” and explains that in the spring and early summer of 2020 he was “having a very hard and difficult time dealing with the pandemic” and “lived his life in fear.” (See ECF No. 2, ¶ 19.)^[2] He feared of “being infected with the Coronavirus[, ]” so much so that he “sprayed his home inside and out with bleach every week to protect himself and his minor son[.]” (Id at ¶ 20.) Rose went to the Walmart “store located at 1091 Mill Creek Rd[.]” in Allentown, Pennsylvania on or about May 7, 2020. (Id. ¶ 18.) He and his minor son “were standing in the checkout line, ” when they “encountered a . . . woman who was only about 2 feet in front of them[.]” (Id. ¶ 24.) Rose asserts that the woman said to a man accompanying her that “his sister had . . . coronavirus” and that the woman then “tried to get” the man to stand closer to Rose and his son. (Id. ¶ 24.) Rose further alleges that the woman stated that “she believed she may contracted the coronavirus” herself. (Id. ¶ 25.)

Upon hearing “these remarks, . . . [Rose claims that he] hit the panic button in his mind and became so terrified that . . . [he] did not know which way to turn.” (Id. ¶ 26.) Rose contends that in his panicked state, he “arrived at the self-checkout stand” and “just started ringing things up, ” but that he “did not know what he was ringing up.” (Id. ¶ 27.) Rose alleges that he simply “wanted to get out of harm's way” and “to get out of the Walmart store and out of danger[, ]” presumably that posed by the woman and the man who were standing too close and potentially, as Rose perceived it, infected with coronavirus. (Id. ¶¶ 24-27.) At that time, Rose claims that he “was having a panic attack and did not have his medicine with him[, ]” which caused him to just begin “ringing [his] items up in a fashion that he had no way of knowing what he was doing right or wrong” because “[a]ll . . . [Rose] wanted to do was get away from the two people.” (Id. ¶¶ 27-28.) Rose alleges that because he was “in terrible fear for his life and the life of his minor son[, ]” he “did not ring up the items correctly” and determined that they “would have to go to the service counter to re ring the items” in question. (Id. ¶ 29.) Rose alleges that he then “proceeded to walk to the service desk so he could re ring the items . . . that he may have missed or rang up several times” but that his “extremely hyper” son who “suffers from ticks and stimming” started going to the door. (Id. ¶¶ 30-32.) At that point, Rose claims that he “called his son back to bring the cart to him so . . . [Rose] could go to the service counter and pay for the items.” (Id. ¶ 32.) However, Rose alleges that “a Black Security Guard stopped . . . [Rose's] . . . son and took possession of the shopping cart” while Rose's son was walking to him. (Id. ¶ 33.)

Despite Rose's attempts to explain that he was heading to the service counter to pay for the items and that he had money, Rose alleges that the “security guard instructed . . . [Rose] to follow him to a holding area for people they intend to arrest.” (Id. ¶¶ 34, 36.) Rose claims that he and his son were then taken to a holding area that was no more than 2.5 feet wide with a camera directly in his face where they spent several hours with the security guard and “his associate” - neither of whom wore a mask - who “kept blowing their breath” in the faces of Rose and his son. (Id. ¶¶ 38-39.) Later, a state police officer arrived and told Rose that “he was not going to take” Rose “to jail because of the pandemic, and that . . . [Rose] would receive a citation in the mail of when to appear in Court[.]” (Id. ¶ 46.) “Instead, a warrant was [subsequently] issued for . . . [Rose's] arrest[.]” (Id. ¶ 47.)

With respect to his alleged arrest, public records reflect that Rose entered a guilty plea on October 22, 2020 to one count of retail theft by under ringing in violation of 18 Pa. S. A. § 3939(a)(4). See Commonwealth v. Rose, MJ-31302-NT-0000399-2020 (C.P. Lehigh County). A few weeks later, on or about November 3, 2020, Rose filed a motion in the Lehigh County Court of Common Pleas seeking to withdraw his guilty plea. See Commonwealth v. Rose, CP-39-MD-0001962-2020, (C.P. Lehigh County). Rose's motion to withdraw his guilty plea was denied on or about December 10, 2020. See id. Rose appealed this decision, among other rulings by the Lehigh County Court of Common Pleas, and his appeal remains pending at this time. Id.

Based on these allegations, Rose brings this action for “‘Federal Civil Rights Violations'” including alleged violations of his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. (ECF No. 2 at ¶¶ 1, 9, 77, 100, 107.) Rose seeks $5 million in punitive damages and $5 million in nominal damages against Defendants for “irreparable harm and mistreatment of . . . [Rose] while acting in their official capacity and at all times relevant violating the laws of the State of Pennsylvania.” (Id. at 16.)

II. STANDARD OF REVIEW

The Court will grant Rose leave to proceed in forma pauperis because it appears that he is not capable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “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) (quotations omitted). “At this early stage of the litigation,' ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,' ‘draw[] all reasonable inferences in [the plaintiff's] favor,' and ‘ask only whether [that] complaint, liberally construed, . . . contains facts sufficient to state a plausible [] claim.'” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Rose is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F. 4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION

Rose repeatedly alleges that the Complaint in this case is one for “‘Federal Civil Rights Violations[, ]” (see, e.g., ECF No. 2 ¶¶ 1-7, 9-11, 13-17), and asserts that his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments were violated.^[3] (See id. ¶¶ 1, 9, 77, 100, 107.) Rose specifically cites 42 U.S.C. §§ 1981, 1985, 1986, 1988 as a basis for his claims, (see id. ¶ 6), and while he does not explicitly state that he seeks to bring his claims in this action pursuant to 42 U.S.C. § 1983, the Complaint, liberally construed, can fairly be said to raise such claims.^[4] The Court address each in turn.

A. Rose's Claims Under § 1981

Section 1981 provides that

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C § 1981. This Reconstruction-era statute, along with several others, was enacted to effectuate the aims of the Thirteenth and Fourteenth Amendments to the Constitution. Brown v. Philip Morris Inc., 250 F.3d 789, 796-97 (3d Cir. 2001) (noting that the legislative history of § 1981, derived from the Civil Rights Act of 1866 and from the reenactment of Section 1 of the 1866 Act in 1870, makes clear Congress's intent to enact “sweeping legislation implementing the [T]hirteenth [A]mendment to abolish all the remaining badges and vestiges of the slavery system”) (quoting Mahone v. Waddle, 564 F.2d 1018, 1030 (3d Cir. 1977)). To state a claim under § 1981, a plaintiff “must allege facts in support of the following elements: (1) [that plaintiff] is a member of a racial minority; (2) intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in the statute[, ] which includes the right to make and enforce contracts ....” Brown, 250 F.3d at 797 (alterations in original) (quoting Yelverton v. Lehman, No. Civ. A. 94-6114 1996 WL 296551, at *7 (E.D. Pa. June 3,...