CARMAN v. PSEG

Filing 4

OPINION. Signed by Judge John Michael Vazquez on 3/2/17. (cm )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SUSAN CARMAN,
Plaintiff

Civil Action No. 17-3 82
V.

OPINION

P$E&G,
Defendant.

John Michael Vazguez, U.S.D.J.

Plaintiff seeks to bring this action informapauperis pursuant to 28 U.S.C.

§ 1915. D.E.

3. For the reasons discussed below, the Court GRANTS Plaintiffs application to proceed informa
pauperis but the complaint is DISMISSED without prejudice pursuant to 28 U.S.C.

§

l915(e)(2)(B) for failing to state a claim upon which relief can be granted.
Under

§ 1915, this Court may excuse a litigant from prepayment of fees when the litigant

“establish[es] that he is unable to pay the costs of his suit.1’ Walker v. People Express Airlines,
Inc., $86 F.2d 59$, 601 (3d Cir. 1989). Plaintiff sufficiently establishes her inability to pay, and

the Court grants her application to proceed in forma pauperis without prepayment of fees and
costs.
However, when allowing a plaintiff to proceed in forma pattperis, the Court must review
the complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 28 U.S.C.

§ 1915(e)(2).
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When considering dismissal under

§ 1915(e)(2)(B)(ii) for failure to state a claim on which

relief can be granted, the Court must apply the same standard of review as that for dismissing a
complaint under Federal Rule of Civil Procedure 12(b)(6). Schreane v. Seana, 506 Fed. App’x
120, 122 (3d Cir. 2012). To state a claim that survives a Rule 12(b)(6) motion to dismiss, a
complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twornblv, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbat, 556 U.S. 662, 678 (2009).
Because Plaintiff is proceeding pro Se, the Court construes the pleadings liberally and holds them
to a less stringent standard than those filed by attorneys. Haines

i’.

Kerner, 404 U.S. 519, 520

(1972). “The Court need not, however, credit a pro se plaintiffs ‘bald assertions’ or ‘legal
conclusions.’” D ‘Agostino v. CECOM RDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J.
Sept. 10, 2010).
This case is, in essence, a billing dispute between Plaintiff and Defendant PSEG. Plaintiff
alleges that in attempting to resolve her billing dispute with Defendant, PSEG violated her rights
under the Americans with Disabilities Act (“ADA”). See Compi. at 1, D.E. 1. Plaintiff contends
that she is a long term epileptic and, therefore, this disabled. Id. Plaintiff further asserts that PSEG
violated the ADA because it failed to make reasonable public accommodations by maintaining a
utilities bill on her account (Id.
issues (Id.

¶ 4), refusing to abide by signed agreements and resolve the billing

¶ 6), bringing suit against Plaintiff and filing motions in court (Id. ¶J 7-8), and installing

a “digital smart meter” in her building (Id.

¶ 9).

Although Plaintiff fails to clarify under which provision of the ADA she brings suit, she
fails to state any ADA claim. Title I of the ADA pertains to employment discrimination. See

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Lavia v. Penn. Dep ‘t of Corrs., 224 F.3d 190, 19$ (3d Cir. 2000). Because Plaintiffs complaint

clearly does not involve employment discrimination, Title us inapplicable. Title II of the ADA
“prohibits discrimination against the disabled in public services, programs, and activities.”
Disability Rights N.J. Inc. v. Comm ‘r, N.J Dep ‘t ofHuman Servs., 796 F.3d 293, 301 (3d Cir.

2015). To state a claim under Title II, a plaintiff must establish, in part, that she was excluded
from a service, program, or activity of a public entity because of her disability. Id. (citing 42
U.S.C.

§ 12132). In this instance, Plaintiff fails to allege that PSE&G excluded her from any of

the stated categories because of her epileptic condition. Consequently, Plaintiffs complaint does
not state a claim under Title II of the ADA.
Finally, Pursuant to Title III of the ADA, “it is unlawful for a public accommodation to
discriminate against an individual on the basis of disability in the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations.” Regents ofMercers burg
Coil. v. Republic Franklin Ins. Co., 45$ F.3d 159, 164 (3d Cir. 2006) (citing 42 U.S.C.

§ 12182(a)).

The Third Circuit views a “public accommodation,” which is defined through a list of twelve
categorical examples, as a physical place. Bowers v. Nat ‘1 Collegiate Athletic Ass ‘n, 9 F. Supp.
2d 460, 483 (3d Cir. 1998); Peoples v. Discover Fin. Servs., Inc., 387 F. App’x 179, 183-84 (3d
Cir. 2010). Thus, discrimination under Title III pertains to an individual’s ability to access or
enjoy the goods and services provided at a physical place. 42 U.S.C.
“a potential defendant must be a person who owns, leases

.

.

.

,

§ 121$2(b)(2). In addition,

or operates a place of public

accommodations.” Bowers,9 F. Supp. 2d at 480 (quoting 42 U.S.C.

§ 12 182(a); 2$ C.F.R. Pt. 36,

app. B at 613). Here, Plaintiff does not allege that she was denied access to or the enjoyment of
goods or services offered at any physical place or that PSEG owns, leases or operates a place of
public accommodation. As a result, Plaintiff fails to state a claim under Title III of the ADA. The

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Court also notes that to state an ADA claim a plaintiff must plead that she is a qualified individual
with a disability. See, e.g., Disability Rights N.i, Inc., 796 F.3d at 301. Plaintiff also fails to
adequately plead this element. Plaintiffs complaint, therefore, is dismissed pursuant to 28 U.s.c.

§ 191 5(e)(2)(B) for failing to state a claim upon which relief can be granted.
When dismissing a case brought by a pro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, which affords a plaintiff with leave to amend.
Grayson v. Mayview State Hosp., 293 f.3d 103, 110-11 (3d Cir. 2002). The district court may

deny leave to amend only if(a) the moving party’s delay in seeking amendment is undue, motivated
by bad faith, or prejudicial to the non-moving party or (b) the amendment would be futile. Adams
v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). At this point, the Court cannot conclude that
Plaintiffs claims are futile. Therefore, the Court shall provide Plaintiff thirty (30) days to file an
amended complaint that cures the deficiencies set forth herein. If Plaintiff does not submit an
amended complaint curing these deficiencies within thirty days, the dismissal will then be with
prejudice. A dismissal with prejudice means that Plaintiff will be precluded from filing any future
suit against Defendant concerning the allegations in the complaint. An appropriate form of Order
accompanies this Opinion.

Dated: March 2nd, 2017

JOHN 1\4ICHAEL VAZ9XJ1EZ1JJ.S.D.J.

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