Ogan v. Newport Cafe et al

Filing 7

OPINION AND ORDER: Plaintiff's application to proceed IFP 2 is GRANTED. Plaintiff's motion to appoint counsel 3 is DENIED with leave to refile. Plaintiff's Complaint 1 is DISMISSED with leave to amend. Plaintiff shall have thirty (30) days in which to file an amended complaint. Plaintiff is advised that failure to timely file an amended complaint will result in entry of a judgment of dismissal without further notice. Signed on 11/14/2023 by Judge Ann L. Aiken. (Deposited in outgoing mail to pro se party on 11/14/2023.) (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

Civ. No. 6:23-cv-00452-AA

RYAN E. OGAN,
v.

Plaintiff,

OPINION & ORDER

NEWPORT CAFE; DAVID SEE;
Defendants.
_______________________________________
AIKEN, District Judge.
Pro Se Plaintiff Ryan. E. Ogan, seeks leave to proceed in forma pauperis
(“IFP”) in this action. ECF No. 2. For the reasons set forth below, Plaintiff’s IFP
application is GRANTED. However, Plaintiff’s Complaint, ECF No. 1, is DISMISSED
with leave to amend. Plaintiff’s request for pro bono counsel, ECF No. 3, is DENIED
with leave to refile.
BACKGROUND
On March 29, 2023, Plaintiff filed a civil Complaint, ECF No. 1., along with an
application for leave to proceed IFP, ECF No. 2. The Complaint names as Defendants
the Newport Cafe, a business operating as a restaurant located in Newport, Oregon,
and David See, the proprietor of the restaurant in his individual capacity.
Plaintiff asserts that the basis of his claims arose from an incident at
Defendants’ restaurant on August 25, 2022. Plaintiff alleges he attempted to dine at

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the Newport Café, when an employee “thought [Plaintiff] was drunk and hesitated to
seat [him].” Compl. at 4. Plaintiff claims that, as he walked out of the restaurant,
he mumbled the word “asshole” and that an employee followed him outside. Id.
Plaintiff maintains that “three or four more [employees] joined the confrontation,”
and “eventually” Plaintiff was “head-butted in the cheekbone.” Id.
LEGAL STANDARD
Generally, all parties instituting any civil action in United States District
Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP
statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for
meaningful access to federal courts despite their inability to pay the costs and fees
associated with that access. To authorize a litigant to proceed IFP, a court must make
two determinations. First, a court must determine whether the litigant is unable to
pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess
whether the action is frivolous, malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune to such relief.
28 U.S.C. § 1915(e)(2)(B).
With regard to the second of these determinations, district courts have the
power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the
complaint on the defendants and must dismiss a complaint if it fails to state a claim.
Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal

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pleading standards, the complaint must include a short and plain statement of the
claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 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. The
plausibility standard . . . asks for more than a sheer possibility that a defendant has
acted unlawfully.”

Id.

The court is not required to accept legal conclusions,

unsupported by alleged facts, as true. Id.
Pro se pleadings are held to less stringent standards than pleadings by
attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should
construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of
any doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.
1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the
complaint and the opportunity to amend, unless the complaint’s deficiencies cannot
be cured by amendment. Id.
DISCUSSION
Plaintiff brings his claim under Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, asserting “reasonable accommodation [at] a public entity.” Compl. at
6. Plaintiff states that he was assaulted because he was “perceived . . . as drunk.”
Id. Liberally construed, the Court reads Plaintiff’s claim as one under Title III of the
ADA, which prohibits discrimination against individuals on the basis of disability “in

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the full and equal enjoyment” of the goods or services offered by a place of public
accommodation. 42 U.S.C. §12182(a). Under Title III of the ADA, it is unlawful
discrimination to deny individuals with disabilities the opportunity to “participate in
or benefit from the goods, services, facilities, privileges, advantages, or
accommodations of an entity.” 42 U.S.C. § 12182(b)(1)(A)(i).
In the Ninth Circuit, to prevail on an ADA Title III claim, “the plaintiff must
show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a
private entity that owns, leases, or operates a place of public accommodation; and (3)
the plaintiff was denied public accommodations by the defendant because of her
disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citations
omitted). To prevail on such a claim, Plaintiff must allege facts to support each
element of the claim.
The first element requires Plaintiff to provide factual allegations that he is
protected by the ADA as a person with a disability. A disability under the ADA is
defined as a person with a physical or mental impairment that substantially limits
one or more life activities. 42 U.S.C.A. § 12102(1)(A). The definition also includes
those who have a history or record of such an impairment, or those who are perceived
by others as having such an impairment. Id. The second element provides that the
defendant is a private entity that owns, leases, or operates a place of public
accommodation. The ADA includes a “restaurant, bar, or other establishment serving
food or drink” as a category of public accommodation, among others. 42 U.S.C.A. §
12181(7)(B). Lastly, Plaintiff must have been denied public accommodations by the

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defendant because of a disability. The ADA provides several different ways in which
a public accommodation can be deemed discriminatory, including the denial of entry,
failure to make reasonable modifications for individuals with disabilities, providing
unequal service, or other discriminatory practices. 42 U.S.C. § 12182(b)(1)–(2).
To summarize, Title III of the ADA provides that individuals may not be
discriminated against due to a disability or perceived disability in a public place. To
prove this, the individual must have a disability as defined by the ADA, and the place
in which the incident occurred must have failed to provide reasonable accommodation
to allow him the full and equal enjoyment of the public place because of the disability.
Here, the Complaint does not allege a disability as defined under the ADA or
how the public entity failed e to accommodate plaintiff based on a disability. And
Plaintiff does not allege any policy or practice that fails to accommodate people with
a disability. Plaintiff has not pled facts sufficient for the court—or Defendants—to
infer how the incident violated the ADA. Plaintiff describes a physical altercation
that started because he was drunk or because Defendants thought he was drunk, and
being drunk or perceived as drunk is not a disability under the ADA.
Plaintiff seeks damages of $200,000, for his injuries and emotional and
psychological damage. Compl. at 4. However, monetary damages are not recoverable
under Title III of the ADA—only injunctive relief is available. Wander v. Kaus, 304
F.3d 856, 858 (9th Cir. 2002) (citing 42 U.S.C. § 12188(a)(1)). Injunctive relief is a
type of remedy in which a party is restrained from doing something or is compelled
to take action in a certain way—it does not include monetary compensation. If

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Plaintiff is seeking to press criminal charges for the physical altercation, this is not
the proper vehicle. Only the state can bring criminal charges. Wayte v. U.S., 470 U.S.
598, 607 (1985) (citations omitted).
Plaintiff’s Complaint falls below the federal pleading standards and must be
dismissed. As Plaintiff is pro se, dismissal shall be with leave to amend, and Plaintiff
shall have thirty days from the date of this Order in which to file an amended
complaint. In drafting the amended complaint, Plaintiff should bear in mind that the
Court does not know anything about Plaintiff’s case or the specific claims other than
what is included in the complaint.
Plaintiff also requests pro bono counsel. ECF No. 3. There is no constitutional
right to counsel in a civil case where, as here, a litigant's liberty is not at issue. See
Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). A court may request, but cannot
compel, counsel to appear pro bono on a plaintiff's behalf. See 28 U.S.C. § 1915(e)(1);
Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989). The
Court's discretion to appoint pro bono counsel is governed by several factors,
including a plaintiff's likelihood of success on the merits and ability to articulate the
claims in light of their complexity. A plaintiff must also show “exceptional
circumstances” that support the appointment of counsel. Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991). At this time, the Court does not find that exceptional
circumstances warrant appointment of counsel. Plaintiff’s motion is DENIED with
leave to refile.

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CONCLUSION
For the reasons set forth above, Plaintiff’s application to proceed IFP, ECF No.
2, is GRANTED. Plaintiff’s motion to appoint counsel, ECF No. 3, is DENIED with
leave to refile. Plaintiff’s Complaint, ECF No. 1, is DISMISSED with leave to amend.
Plaintiff shall have thirty (30) days in which to file an amended complaint. Plaintiff
is advised that failure to timely file an amended complaint will result in entry of a
judgment of dismissal without further notice.

It is so ORDERED and DATED this

14th

day of November 2023.

/s/Ann Aiken
ANN AIKEN
United States District Judge

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