United States District Court, D. Maine
ORDER ON ALL PENDING MOTIONS
GEORGE Z. SINGAL, District Judge.
1. Application To Proceed In Forma Pauperis
Before the Court are Plaintiff Alla Iosifovna Shuper's Applications to Proceed In Forma Pauperis (ECF Nos. 5, 14 & 18). The Court hereby GRANTS Plaintiff leave to proceed in forma pauperis in this action.
2. Motions For Reconsideration
Also before the Court are the Motion for Reconsideration (ECF No. 4) and the Motion to Amend the Motion for Reconsideration (ECF No. 6). Both of these Motions pertain to the Court's November 18, 2014 Order requesting that Plaintiff either pay the filing fee or file a request to proceed in forma pauperis in each of her docketed cases. (See Order (ECF No. 3).) In light of the Court's decision to grant Plaintiff's request to proceed in forma pauperis, the Court finds the requests for reconsideration (ECF Nos. 4 & 6) MOOT. The Court notes that similar motions for reconsideration were filed in each of Plaintiff's then twenty-four cases.
3. Appeal To The Chief Judge
Plaintiff Shuper has also filed an Appeal to the Chief Judge (ECF No. 7). To the extent that Plaintiff Shuper is appealing the Court's November 18, 2014 Order to the Chief Judge, there is no such right to appeal to the Chief Judge, and it is therefore DENIED. As with the Motion for Reconsideration and the Motion to Amend the Motion for Reconsideration, pro se Plaintiff Shuper's Appeal to the Chief Judge was filed in each of her then twenty-four cases.
4. Change In Pro Se Filing Status
Plaintiff Shuper has also filed a Motion to Accept the Change in Pro Se Filing, thereby requesting that she be permitted to file documents manually rather than electronically (ECF No. 10). The Court GRANTS the Motion, which has also been filed in each of her cases.
5. Review Of The Complaint Under 28 U.S.C. § 1915(e)(2)
Upon the Court's review of the Complaint, the Court concludes that the case must be dismissed in accordance with 28 U.S.C. § 1915(e)(2). Through the handwritten Complaint, Plaintiff Shuper attempts to bring a case against Walmart Corporation and David G. The Complaint alleges that in October or November of 2013, Plaintiff Shuper visited the Walmart in Falmouth, Maine to pay for a cellular phone and a newspaper. (Compl. at 1, ¶¶ 1, 2.) The Complaint alleges that Plaintiff Shuper's Walmart Card had money on it but that it did not work. (Id. ¶¶ 3, 4.) The Complaint alleges that Plaintiff Shuper asked why her card did not work, when only five minutes prior she put money onto the card and had a receipt for that transaction. (Id. ¶ 5.) Plaintiff Shuper became anxious and raised her voice. (Id. ¶ 6.) The Complaint alleges that, at that point, a supervisor was called who could not explain why Plaintiff Shuper's Walmart Card did not work and accused Plaintiff Shuper of stealing a newspaper. (Id.) The Complaint further alleges that the Supervisor called security after Plaintiff Shuper asked the Supervisor a question, and that when Plaintiff went to the Pharmacy, the Supervisor told Plaintiff Shuper that she had to leave the store. (Id. ¶¶ 7, 8.) The Complaint alleges that the foregoing course of conduct violated the United States Constitution, the Americans with Disabilities Act and the Maine Human Rights Act. (Id. at Relief.)
Liberally construing the Complaint, the Court cannot see any claim against the named Defendants. First, to the extent that Plaintiff Shuper asserts a claim for violations of 42 U.S.C. § 1983, in order to be held liable under § 1983, a defendant must be a state actor. Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005) (stating that "a plaintiff claiming a § 1983 violation must allege that a person or persons acting under color of state law deprived him of a federal constitutional or statutory right.... If the plaintiff fails to allege facts sufficient to establish... that the defendant or defendants acted under color of state law, then the § 1983 claim is subject to dismissal.") Plaintiff Shuper does not allege that either of the Defendants, Walmart Corporation or David G., are state actors nor do the facts support such a finding. See id. at 4-9 (finding that a private hospital, private healthcare services provider and private physicians were not state actors and could not be held liable under section 1983). Therefore, the Complaint does not state a claim under § 1983.
The Complaint also fails to state a claim for a violation of the Americans with Disabilities Act ("ADA"). Title III of the ADA applies to places of "public accommodation" and provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation[.]" 42 U.S.C. § 12182(a). To state a claim under this provision, a plaintiff must allege that (1) she is disabled within the meaning of the ADA; (2) the defendant owns, leases or operates a place of public accommodation; and, (3) the defendant discriminated against her by denying her a full and equal opportunity to enjoy the services the defendant provides on the basis of her disability. See Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). First, the Complaint does not allege that Plaintiff Shuper is disabled. See Bailey v. Georgia-Pac. Corp., 176 F.Supp.2d 3, 7 (D. Me. 2001) aff'd on other grounds, 306 F.3d 1162 (1st Cir. 2002) ("As an initial step in making out any ADA claim, the Plaintiff must establish that [s]he is a person with a disability.'").
Even assuming that Plaintiff Shuper is disabled and that Walmart is a place of public accommodation, the Complaint fails to state a claim for which relief can be granted. There is no allegation or inference that Walmart denied Plaintiff physical access, refused to sell her any goods or impaired her full enjoyment of the services and goods offered by Walmart because of her disability. See Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 (2d Cir. 1999) opinion amended on denial of reh'g, 204 F.3d 392 (2d Cir. 2000) (stating that "an entity covered by Title III is not only obligated by the statute to provide disabled persons with physical access, but is also prohibited from refusing to sell them its merchandise by reason of discrimination against their disability."). Although Plaintiff Shuper's interactions with Walmart and its staff appear unpleasant, "[u]nfortunately, legislation such as the ADA cannot regulate individuals' conduct so as to ...