Abraham v. The Marcus Corporation

Filing 30

MEMORANDUM AND ORDER- The Motion to Dismiss (Filing No. 19 ) submitted by Defendant The Marcus Corporation is granted; The Plaintiff Gary L. Abrahams action is dismissed, with prejudice; and A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (Copy e-mailed to pro se party) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GARY L. ABRAHAM,
Plaintiff,

8:15CV308

vs.
MEMORANDUM AND ORDER
THE MARCUS CORPORATION,
Defendant.

This matter is before the Court on the Defendant’s Motion to Dismiss (Filing No.
19). For the reasons discussed below, the motion will be granted.
BACKGROUND
Plaintiff Gary L. Abraham (“Abraham”) filed a pro se Complaint (Filing No. 1)
against The Marcus Corporation (“Marcus”), and later filed a pro se Amended Complaint
(Filing No. 12). He purports to assert claims based on race discrimination in violation of
42 U.S.C. § 1981; race and sex1 discrimination in the offering of public accommodations
in violation of Neb. Rev. Stat. §§ 20-132 to 20-143; breach of contract; retaliation in
violation of Neb. Rev. Stat. § 20-136; discrimination based on disability (hypertension) in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213; and
denial of access to public accommodations in violation of the ADA.2
All claims are based on a narrow set of factual allegations: Abraham is an
African-American male residing in the state of Nebraska.

1

He suffers from

In his Amended Complaint, Abraham appears to present claims on behalf of his female
companion. In his brief (Filing No. 21) in opposition to Marcus’s Motion to Dismiss, however, he contends
that he is presenting claims only on his own behalf. (Id. ¶ 2.)
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The Amended Complaint sets out eight claims for relief, but two are duplicative.

hypertension.3 On July 20, 2015, he slipped and fell in a stairwell located in a movie
theater located in Omaha, Nebraska.4

The theater was owned and operated by

Marcus, a corporation having its principal place of business in Wisconsin. Abraham told
an assistant manager about the fall, and Abraham was given an ice bag for his knee
and one complimentary movie ticket.

Two days later, Abraham returned to the

premises to speak to a manager, noting that he had gone to a doctor, obtained x-rays,
and was taking prescription pain medication. The manager gave Abraham vouchers for
two entrees from the theater’s menu to compensate Abraham for two meals he
purchased but did not consume on the day of his fall. Abraham and his female guest,
who was also African-American, ordered two brisket sandwiches and french fries,
specifying that the meals were to be without salt. When they began to consume their
meals, they detected salt.

They complained to the Marcus food and beverage

supervisor, and demanded a “refund” for their meals. The supervisor was rude and
declined to make a refund.
STANDARD
“To survive a motion to dismiss, the factual allegations in a complaint, assumed
true, must suffice ‘to state a claim to relief that is plausible on its face.’” Northstar
Indus., Inc. v. Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). “[A]lthough a complaint need not include detailed factual allegations, ‘a
3

Abraham also filed an affidavit stating that he is a disabled veteran, suffering from anxiety
disorder. (Filing No. 16-2.)
4
Abraham makes no allegations of negligence on the part of Marcus or any of its agents or
employees.

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plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.’” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629–
30 (8th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “Instead, the complaint must set
forth ‘enough facts to state a claim to relief that is plausible on its face.’” Id. at 630
(quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks
omitted).

“Courts must accept . . . specific factual allegations as true but are not

required to accept . . . legal conclusions.” Outdoor Cent., Inc. v. GreatLodge.com, Inc.,
643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451,
459 (8th Cir. 2010)) (internal quotation marks omitted). When ruling on a defendant’s
motion to dismiss, a judge must rule “on the assumption that all the allegations in the
complaint are true,” and “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very
remote and unlikely.’” Twombly, 550 U.S. at 555, 556 (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)). The complaint, however, must still “include sufficient factual
allegations to provide the grounds on which the claim rests.” Drobnak v. Andersen
Corp., 561 F.3d 778, 783 (8th Cir. 2009).

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DISCUSSION
Abraham’s allegations are frivolous and he fails to state any claim on which relief
can be granted. Liberally construing all allegations in Abraham’s Amended Complaint,
and drawing all reasonable inferences in his favor, the Court concludes that Marcus is
not liable to Abraham under any of Abraham’s theories of recovery.
In Marcus’s briefs (Filing Nos. 11 and 25) in support of its Motion to Dismiss,
defense counsel attempted to make some sense of Abraham’s claims, thoroughly
parsing the elements of each potential claim and demonstrating why this Court would
lack jurisdiction, or Abraham would lack standing, or the allegations would fail to present
claims on which relief could be granted. The Court appreciates the diligence and
patience demonstrated by defense counsel.
Although Abraham paid a filing fee in this case and is not proceeding in forma
pauperis, the Court concludes that the mandate of 28 U.S.C. § 1915(e)(2) is applicable:
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . . (B) the
action . . . is frivolous . . . .” Accordingly,
IT IS ORDERED:
1. The Motion to Dismiss (Filing No. 19) submitted by Defendant The Marcus
Corporation is granted;
2. The Plaintiff Gary L. Abraham’s action is dismissed, with prejudice; and
3. A separate Judgment will be entered.

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Dated this 4th day of December, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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