Weese et al v. Kalamazoo Metro Transit Service

Filing 10

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 8 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAN WEESE and
CHERYL SULT-WEESE,
Plaintiffs,
-vKALAMAZOO METRO TRANSIT SERVICE,
Defendant.

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No. 1:17-cv-747
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
COMPLAINT
This matter comes before the Court on a Report and Recommendation issued by the
Magistrate Judge.
Plaintiffs Dan Weese and Cheryl Sult-Weese filed this civil rights complaint against
the Kalamazoo Metro Transit Service. Plaintiffs are proceeding without the benefit of an
attorney. Plaintiffs were granted leave to file their complaint in forma pauperis, which allows
them to file their lawsuit without paying a filing fee. When the filing fee is waived, however,
courts are required to review the pleadings. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The magistrate judge reviewed the complaint and issued a report recommending that
the complaint be dismissed for failure to state a claim on which relief may be granted. (ECF
No. 8.) Plaintiffs have since filed a document which this Court is treating as their objections
to the Report and Recommendation. (ECF No. 9.) Because Plaintiffs’ are proceeding
without the benefit of an attorney, this Court must liberally construe their filings. See Boswell

v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Owens v. Keeling, 461 F.3d 763, 776 (6th Cir.
2006) (citing Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005)).
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b). Only those objections that are specific are entitled to a de
novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam).
Succinctly, Plaintiffs assert their rights under the Americans with Disabilities Act
(ADA) were violated by the Kalamazoo Metro Transit Authority. Plaintiffs claim to be
disabled and contend that the bus driver refused to accommodate them. Specifically, the
bus driver would not permit them to bring their grocery cart on the bus. In order to use the
bus after shopping, Plaintiffs are forced to unload or reload their cart, which is very stressful.
The magistrate judge identified three deficiencies in the complaint, which
undermined any claim Plaintiffs might have: (1) Plaintiffs failed to describe their disabilities,
(2) Plaintiffs failed to allege the connection between their disabilities and the bus driver’s
actions, and (3) the statute Plaintiffs cited protects individuals from discrimination based on
race, color, or national origin.
In their objection, Plaintiffs address only the first omission. Plaintiffs explain that they
both suffer from post-traumatic stress disorder (PTSD) and that Cheryl suffers from
“pseduoserizures.” (PageID.26). An individual is disabled under the ADA if he or she

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suffers from a mental or physical impairment that substantially limits one or more of her
major life activities, has a record of the impairment, or is regarded as having the impairment.
42 U.S.C. § 12101(2)(A). Although the term “disability” under the ADA must be construed
broadly, 42 U.S.C. § 12102(4)(A), an individual’s disability is determined on a case-by-case
basis, Sebest v. Campbell City School District Board of Education, 94 F. App’x 320, 326–
27 (6th Cir. 2004).
Plaintiffs’ explanation here is likely sufficient to overcome the first factual hurdle
identified by the magistrate judge. The Court may assume that Plaintiffs’ PTSD constitutes
a disability for the purpose of the ADA. See, e.g., Novak v. Bd. of Trustees of Southern

Illinois Univ, 777 F.3d 966, 975 (7th Cir. 2015) (involving a noting the parties did not dispute
that the plaintiff’s PTSD diagnosis was sufficient to establish that he suffered from a disability
under the ADA).
Plaintiffs have not, however, overcome the second factual hurdle identified by the
magistrate judge. The complaint contains no factual assertions suggesting that the bus driver’s
actions were based on Plaintiffs’ disability or that the bus driver acted based on his or her
perception of Plaintiffs’ disability. Put simply, the bus driver’s directions to Plaintiffs about
their groceries and grocery cart had nothing to do with their disabilities. The ADA does not
insulate disabled individuals from all conduct that makes their lives more stressful or
complicated. See, e.g., Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1052 (5th
Cir. 1998) (concluding that the ADA did not protect an employee from termination after
that employee had loud and disruptive outbursts at work, even though the employee asserted
that his emotional outbursts were caused by his PTSD). Here, the conduct of which

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Plaintiffs’ complain is not because of their disability. Certainly, complying with the bus
driver’s directions would be stressful and that Plaintiffs’ PTSD might make the stressful
situation worse. But, those facts are insufficient to allege discrimination because of a
disability.
Because the Court has concluded that the complaint fails to state a claim, and will
dismiss the lawsuit, the Court must consider whether any appeal would be taken in good
faith. See 28 U.S.C. § 1915(a)(3). The standard is an objective one. See Coppedge v. United

States, 369 U.S. 438, 445 (1962). When any appeal would present a frivolous issue, the
appeal is not taken in good faith. Id. The same concerns that require the Court to find that
the complaint fails to state a claim also require the Court conclude any appeal would not be
taken in good faith.
For these reasons, the Report and Recommendation (ECF NO. 8) is ADOPTED as
the Opinion of this Court. Plaintiffs’ claims are DISMISSED.
IT IS SO ORDERED.
Date: October 16, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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