Mendez v. McDonalds Resturant

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS ;(1)The report and recommendation of Judge Arbuckle, (Doc. 4), is ADOPTED IN ITS ENTIRETY.(2)The plaintiffs motion to proceed in forma pauperis, (Doc. 1), is GRANTED.(3)The plaintiffs complaint is DISMISSED W ITHOUT PREJUDICE.(4)The plaintiff shall file an amended complaint on or before January 2, 2019.(5)The instant action is REMANDED to Judge Arbuckle for consideration of the plaintiffs amended complaint and for any necessary pre-trial matters. ORDER REFERRING CASE to Magistrate Judge William I. Arbuckle; Amended Pleadings due by 1/2/2019.Signed by Honorable Malachy E Mannion on 12/10/18. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RITA MENDEZ,

:
Plaintiff

MCDONALD’S RESTAURANT,
Defendant

CIVIL ACTION NO. 3:18-391

:

v.

:

(MANNION, D.J.)
(ARBUCKLE, M.J.)

:
:
ORDER

Pending before the court is the report of Magistrate Judge William I.
Arbuckle which recommends that the plaintiff’s application to proceed in forma
pauperis be granted and her complaint be dismissed without prejudice. (Doc.
4). Although the plaintiff filed correspondence subsequent to Judge Arbuckle’s
report, (Doc. 5, Doc. 6), she has not filed any substantive objections to the
report.
By way of relevant background, the plaintiff filed the instant action, pro
se, on February 6, 2018, alleging that she is a disabled person suffering from
Type II Diabetes. (Doc. 1, Attachment 1). The plaintiff alleges that, on
December 20, 2017, her blood sugar was low and she needed something to
eat. As a result, the plaintiff alleges that she went into a McDonald’s
restaurant in Stroudsburg, Pennsylvania, to get something to eat. Although
there was no one else in line, the plaintiff alleges that the cashier ignored her
and did not ask her if she wanted to order anything, even after the plaintiff

informed the cashier that she had low blood sugar. The plaintiff apparently
became light headed and passed out. Even after she passed out, the plaintiff
alleges that the cashier failed to help her. The plaintiff alleges in her complaint
that the cashier’s actions created a health risk because her sugar level was
low. In addition, the plaintiff alleges that she suffered embarrassment. The
plaintiff is seeking monetary and injunctive relief.
In giving the plaintiff’s complaint preliminary consideration pursuant to
the provisions of 28 U.S.C. §1915(e)(2)1, Judge Arbuckle finds that, even
liberally construing the plaintiff’s pro se complaint, the complaint fails to state
a claim upon which relief can be granted. In this regard, Judge Arbuckle notes
that the complaint fails to comply with Fed.R.Civ.P. 8, in that it does not set
forth a “short and plain statement of the cause of action and a claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Specifically, Judge
Arbuckle observes that nowhere in the plaintiff’s complaint does she identify
a cause of action under any state or federal law or set forth any well-pleaded
facts to support any legal claims against McDonald’s. To the extent that the
plaintiff was contemplating a claim under the Americans with Disabilities Act
(“ADA”), based upon her allegations of disability, Judge Arbuckle notes that

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The plaintiff has filed a motion to proceed in forma pauperis, (Doc. 1),
which Judge Arbuckle recommends be granted.
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the plaintiff failed identify that claim in her complaint and further failed to plead
any facts which would support such a claim. Given this, Judge Arbuckle
recommends that the plaintiff’s complaint be dismissed, without prejudice, to
allow the plaintiff an opportunity to file an amended complaint which properly
identifies her claim(s) and sets forth well-pleaded facts which comply with the
requirements of Fed.R.Civ.P. 8.
When no objections are filed to a report and recommendation, the court
should, as a matter of good practice, “satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.” Fed. R. Civ.
P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give
some review to every report and recommendation)). Nevertheless, whether
timely objections are made or not, the district court may accept, not accept,
or modify, in whole or in part, the findings or recommendations made by the
magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.
The court has reviewed the reasons presented by Judge Arbuckle in
support of his recommendation and agrees with the sound reasoning that led
Judge Arbuckle to the conclusions in his report. The court agrees that, as
presented, the plaintiff’s complaint fails to state a claim upon which relief can

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be granted. As such, the undersigned finds no clear error on the face of the
record and will adopt Judge Arbuckle’s report in its entirety.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1)

The report and recommendation of Judge Arbuckle, (Doc.
4), is ADOPTED IN ITS ENTIRETY.

(2)

The plaintiff’s motion to proceed in forma pauperis, (Doc.
1), is GRANTED.

(3)

The plaintiff’s complaint is DISMISSED WITHOUT
PREJUDICE.

(4)

The plaintiff shall file an amended complaint on or before
January 2, 2019.

(5)

The instant action is REMANDED to Judge Arbuckle for
consideration of the plaintiff’s amended complaint and for
any necessary pre-trial matters.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: December 10, 2018
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2018 ORDERS\18-391-01.wpd

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