Catman Jr v. McDonalds Corporation

Filing 13

ORDER OF DISMISSAL. ORDERED that the Complaint and the action are dismissed as legally frivolous. IFP on appeal is denied, by Judge Lewis T. Babcock on 2/29/2016. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02472-GPG

NORMAN RICHARD CATMAN JR.,
Plaintiff,
v.
McDONALD=S CORPORATION, and
AFRICAN AMERICAN EMPLOYEE WEARING BLUE SHIRT, and
ALL OTHERS FOUND CULPABLE,
Defendants.

ORDER OF DISMISSAL

Plaintiff Norman Richard Catman Jr. initiated this action by filing pro se a pleading
titled, ACivil Suit for Damages,@ ECF No. 1, and a Motion to File In Forma Pauperis, ECF
No. 3. Magistrate Judge Gordon P. Gallagher found the filings deficient and directed
Plaintiff to cure the deficiencies by filing his claims and his request to proceed pursuant to
28 U.S.C. ' 1915 on proper Court-approved forms. Plaintiff complied with Magistrate
Judge Gallagher=s directive and was granted leave to proceed pursuant to ' 1915.
Magistrate Judge Gallagher then reviewed the merits of Plaintiff=s claims and found that
Plaintiff had failed to comply with Fed. R. Civ. P. 8. Plaintiff was directed to amend the
Complaint and to state a short and plain statement of the grounds for the Court=s
jurisdiction, the claims he raises, and the type of relief he seeks.
The envelope sent to Plaintiff that contained the Order to Amend was returned to
the Court and marked AReturn to Sender Refused Unable to Forward.@ Plaintiff, in the

meantime, submitted a Notice of Change of Address. As a result, the Order to Amend
was resent to Plaintiff at the new address. Plaintiff was given an additional thirty days to
amend the Complaint. On January 22, 2016, Plaintiff submitted a handwritten pleading
that states jurisdiction, his claim, and his demand for relief. The pleading is not
submitted on a Court-approved form as Plaintiff was directed to do. Nonetheless, the
Court will review the merits of the Complaint below.
The Court must construe the Complaint liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Complaint reasonably can be read
Ato state a valid claim on which the plaintiff could prevail, [the Court] should do so despite
the plaintiff=s failure to cite proper legal authority, his confusion of various legal theories,
his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.@ Hall, 935 F.2d at 1110. However, the Court does not act as an
advocate for a pro se litigant. See id.
Pursuant to ' 1915(e)(2)(B)(i), the Court must dismiss the action if Plaintiff=s claims
are frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of
a legal interest that clearly does not exist or asserts facts that do not support an arguable
claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). For the reasons stated
below, the Court finds Plaintiff=s claims are legally frivolous and will dismiss the action.
In the January 22, 2016 pleading, Plaintiff asserts that his rights were violated
pursuant to ATitle 42 The Public Health and Welfare-Subchapter II-Public services [Title II]
Sec. 12132 Discrimination [Section 202] and also ADA and Code of Federal Reg '

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36.202.@

ECF No. 11 at 2. Plaintiff further asserts he is a disabled veteran who, on

September 13, 2015, was denied service at a McDonald=s restaurant by an employee,
because his service dog was not wearing a vest, and he then was told to leave the
restaurant or the employee would call the police, after which Plaintiff left. Id. at 2-3.
Plaintiff seeks compensatory and punitive damages for the embarrassment, paranoia,
delusions, and anxiousness he suffered, and for his inability to take his psychotic
medication. Id. 3-4.
Plaintiff=s reliance on Title II is misplaced. Title II of the ADA provides that "no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity." 28 U.S.C. ' 12132. Also,
section 794 of the Rehabilitation Act (Amendment of Rehabilitation Act of 1973,
' 504) prohibits discrimination against an individual with disabilities by the recipient of
federal financial assistance and creates a private right of action in favor of such an
individual injured by a violation. 29 U.S.C. ' 794. Pursuant to 42 U.S.C. ' 12131(1)(B) a
public entity is "any department, agency, special purpose district, or other instrumentality
of a State or States or local government." Neither McDonald=s Corporation nor its
employees are public entities. Plaintiff=s claims raised pursuant to Title II are improperly
asserted against McDonald=s or its employees.
Furthermore, even if the Court construes Plaintiff=s claim as filed pursuant to Title
III, the claim is legally frivolous. Title III of the ADA prohibits discrimination against the
disabled in public accommodations. See 42 U.S.C. ' 12182(a). However, pursuant to

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42 U.S.C. ' 12188(a), Plaintiff=s sole remedy for a Title III claim is injunctive relief.@
Phillips v. Tiona, 508 F. App=x 737, 754 (10th Cir. 2013); see also Powell v. Nat=l Bd. of
Med. Exam=rs, 364 F.3d 79, 86 (2d Cir. 2004) (AA private individual may only obtain
injunctive relief for violations of a right granted under Title III; he cannot recover
damages.@). Plaintiff seeks compensatory and punitive damages. Therefore, Plaintiff
failed to assert a proper claim for relief, and the instant action will be dismissed.
Furthermore, the Court certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any appeal
from this Order would not be taken in good faith and therefore in forma pauperis status will
be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he also must pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint and the action are dismissed as legally frivolous
pursuant to 28 U.S.C. ' 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

29th

day of

February

, 2016.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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