SCOTT v. GIANT EAGLE MARKET et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 3/2/18. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PATRICIA A. SCOTT,

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Plaintiff,

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V.

GIANT EAGLE MARKET ET AL,
Defendants.

2: l 7-cv-00289

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MEMORANDUM OPINION
Mark R. Hornak, United States District Judge

Pending before the Court are two Motions to Dismiss - the first is a Motion to Dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6) filed by Defendant Giant Eagle
Market ("Giant Eagle") and the second is a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) filed by Defendant Pittsburgh Police Department Zone 4 Station ("City of
Pittsburgh"). 1 For the reasons that follow, both motions will be granted.
I.

BACKGROUND

On March 8, 2017, Plaintiff Patricia A. Scott ("Scott") filed a complaint against Giant
Eagle and the City of Pittsburgh alleging violations of the Americans with Disabilities Act of 1990
("ADA"), specifically 42 U.S.C. § 12131and42 U.S.C. § 12101 et seq. She seeks $1,000,000 in
punitive damages.
On May 1, 2016, while Scott was seated in the restaurant section of a Giant Eagle, a Giant
Eagle employee rushed up to her and whispered in her ear that she needed to leave the store. (ECF

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Both Defendants assert that they have been improperly identified. Defendant Giant Eagle Market explains that it
should have been identified as Giant Eagle, Inc., (ECF No. 16 at I), and Defendant Pittsburgh Police Department Zone
4 Station asserts that it is not a separate legal entity and that the City of Pittsburgh is the proper party, (ECF No. 17 at
I).

No. 5 ~III). The employee then left without any further explanation. (Id.) After Scott remained
in the store, the Giant Eagle employee returned a second time and reiterated that Scott needed to
leave the store and, again, left without any further explanation. (Id.) Thereafter, a security guard
walked into the restaurant and hostilely asked Scott whether the "supervisor", i.e., the Giant Eagle
employee, had asked her to leave. (Id.) Scott responded by asking that the supervisor and the
security guard provide her with a legal explanation as to why she was being asked to leave. (Id.)
The security guard and the supervisor refused to do so, and the security guard then told her he was
going to call the police. (Id.)
When two police officers employed by the City of Pittsburgh arrived, they asked Scott for
her store receipt, which she provided and which demonstrated that she had purchased her food in
the store. (Id.) The police officers then showed the receipt to the security guard; however, the
guard still insisted that Scott leave the store. (Id.) Plaintiff argues that because she was ejected
from Giant Eagle she was deprived of the opportunity to charge her smart phone, the opportunity
to charge her wheelchair, and she was excluded from using a "public entity". (Id.)
On May 12, 2017, Giant Eagle filed a Motion to Dismiss pursuant to FED. R. Crv. P.
12(b)(l) and 12(b)(6), (ECF No. 15), and a brief in support thereof, (ECF No. 16). The City of
Pittsburgh filed a Motion to Dismiss pursuant to FED. R. Crv. P. 12(b)(6), (ECF No. 17), and brief
in support thereof, (ECF No. 18). Scott filed a response in opposition on May 26, 2017, adding
new facts to her claim and making reference to for the first time "Section 1983," asserting a "breach
of trust" by the police. (ECF No. 26). 2

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Scott cannot raise a new claim in her reply brief, nor can that serve to amend her pleading. Monroe v. City of Hoboken,
No. 11-2566, 2012 WL 1191177, at *14, n.2 (D.N.J. Apr. 10, 2012). Additionally, as explained later in this
Memorandum Opinion, when considering a FED. R. CIV. P. 12(b)(6) motion, the Court cannot consider new facts
outside of her Complaint.

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II.

LEGALSTANDARDS
A.

Pro Se Litigants

Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards

than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If
the court can reasonably read the pleadings to state a valid claim on which the litigant could prevail,
it should do so despite the litigant's failure to cite proper legal authority, confusion of legal
theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements.
Boag v. MacDougall, 454 U.S. 364, 364 (1982); United States ex rel. Montgomery v. Brierley, 414

F.2d 552, 555 (3d Cir. 1969) (providing a petition prepared by a prisoner may be inartfully drawn
and should be read "with a measure of tolerance"); Freeman v. Dep't ofCorrections, 949 F.2d 360,
361 n.1 (10th Cir. 1991 ). Under our liberal pleading rules, during the initial stages of litigation, a
district court should construe all allegations in a complaint in favor of the complainant. Gibbs v.
Roman, 116 F.3d 83, 86 (3d Cir. 1997) (overruled on other grounds). Because Scott is a prose

litigant, this Court will consider facts and make inferences where appropriate.
B.

Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(l)

Under FED. R. C1v. P. l 2(b)(1 ), "a court must grant a motion to dismiss if it lacks subjectmatter jurisdiction to hear a claim." In re Schering Plough Corp. Intron/Temodar Consumer Class
Action, 678 F.3d 235, 243 (3d Cir. 2012). "A motion to dismiss for want of standing is ... properly

brought pursuant to Rule l 2(b )(1 ), because standing is a jurisdictional matter." Ballentine v.
United States, 486 F.3d 806, 810 (3d Cir. 2007).

In evaluating a challenge to subject matter jurisdiction under Rule 12(b)(1 ), a court first
must determine whether the movant presents a facial or a factual attack. See Davis v. Wells Fargo,
824 F.3d 333, 346 (3d Cir. 2016). The distinction is important because it determines how the

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complaint must be reviewed. See Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891
(3d Cir. 1977). A facial attack "challenges subject matter jurisdiction without disputing the facts
alleged in the complaint, and it requires the court to 'consider the allegations of the complaint as
true."' Davis, 824 F.3d at 346 (citation omitted).

A factual challenge "attacks the factual

allegations underlying the complaint's assertion of jurisdiction, either through the filing of an
answer or 'otherwise present[ing] competing facts."' Id. (citation omitted). Here, Giant Eagle
makes a facial challenge because it has not disputed the validity of Scott's factual claims in its
Motion to Dismiss. In essence, Giant Eagle contends that the allegations of the complaint, even
accepted as true, are insufficient to establish Article III standing as to Scott's Title III claim.
In considering a facial challenge to standing, courts are to apply the same standard as on
review of a Rule 12(b)(6) motion for failure to state a claim. See Petruska v. Gannon Univ., 462
F.3d 294, 299 n. l (3d Cir. 2006) (explaining "that the standard is the same when considering a
facial attack under Rule 12(b)(1) or a motion to dismiss for failure to state a claim under Rule
12(b)(6)") (citation omitted).
C.

Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

When reviewing a Rule l 2(b )( 6) motion, the Court must "accept all factual allegations as
true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). Plaintiff's factual allegations must "raise a right to

relief above the speculative level" and state a plausible claim for relief to survive a motion to
dismiss. Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A well-pleaded complaint may
not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is

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improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal
citation and quotation omitted). The Court need not accept as true any unsupported conclusions,
unsupported inferences, and "threadbare recitals of the elements of a cause of action." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).

III.

ANALYSIS
A.

Title III

Defendant Giant Eagle argues that Scott has failed to plead sufficient facts to establish
standing to bring an ADA Title III claim or, alternatively, if she has standing, that she has not pied
sufficient facts to set forth a Title III claim and seeks punitive damages, which are unavailable
under Title III.
Title III provides: "No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). A Title III claim is
limited to private owners or lessors of property and is not a remedy against the State or its officers. 3
Heine v. Comm 'r of the Dep 't of Cmty. Affairs of the State of NJ., 2016 WL 7042069, at *9 n.11

(D. N.J. Dec. 1, 2016). The statute does not specifically define "discrimination" but rather sets
forth "broad categories of conduct 'that constitute discrimination for purposes of the general rule
found in 42 U.S.C. § 12182(a)."' McGann v. Cinemark USA, Inc., 873 F.3d 218, 222 (3d Cir.
2017) (quoting§ 12182(a)). One of which describes discrimination as
the imposition or application of eligibility criteria that screen out or tend to screen
out an individual with a disability or any class of individuals with disabilities from
fully and equally enjoying any goods, services, facilities, privileges, advantages, or
accommodations, unless such criteria can be shown to be necessary for the

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Thus, to the extent Plaintiff seeks to assert a Title III claim against the City, it fails as a matter of !av..

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prov1s10n of the goods, services,
accommodations being offered[.]

facilities,

privileges,

advantages,

or

42 U.S.C. § 12182(2)(A)(i).

Standing
Article III of the Constitution limits the scope of federal judicial power to the adjudication
of "cases" or "controversies." U.S. CONST., art. III, § 2. "[T]he standing question is whether the
plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant [her]
invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on
[her] behalf." Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186,
204 (1962)).
It is well-established that the "irreducible constitutional minimum" of standing consists of

three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "The plaintiff must
have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v.

Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560-61). "The plaintiff bears the
burden of proving standing." Finkelman v. Nat'! Football League, 877 F.3d 504, 511 (3d Cir.
2017). At the pleading stage, the plaintiff must "clearly ... allege facts demonstrating" each
element. Spokeo, 136 S.Ct. at 1547 (quoting Warth, 422 U.S. at 518) (alteration in original).
Although there are three required elements of constitutional standing, the Third Circuit has
emphasized that "the injury-in-fact element is often determinative." Toll Bros., Inc. v. Twp. of

Readington, 555 F.3d 131, 138 (3d Cir. 2009); see also Spokeo, 136 S.Ct. at 1547 (observing that
injury-in-fact is the "[fJirst and foremost" of standing's three elements) (internal citation and
quotation omitted). To establish an injury-in-fact, a plaintiff must show that she suffered "an
invasion of a legally protected interest" that is "concrete and particularized" and "actual or
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imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (internal citation and quotation
omitted).
The only remedy available in a Title III case is prospective injunctive relief; monetary
damages are not available. Anderson v. Macy's, Inc., 943 F. Supp. 2d 531, 538 (W.D. Pa. 2013).
Therefore, Scott's request for punitive damages is improper, and will be dismissed with prejudice.
"Because the remedy for a private ADA Title III violation is injunctive relief, courts look
beyond the alleged past violation and consider the possibility of future violations." Id. A plaintiff
"seeking prospective injunctive relief must demonstrate a real and immediate threat of injury in
order to satisfy the injury in fact requirement." Id. (internal citation and quotation omitted). The
plaintiff "must show that he or she is likely to suffer future injury from the defendant's illegal
conduct." Doe v. Nat 'l Bd. of Med. Examiners, 210 F. App'x 157, 159-60 (3d Cir. 2006).
In determining whether a plaintiff has standing under Title III, courts focus on "the
likelihood of the plaintiffs return to the place of public accommodation," which
requires consideration of "(l) the plaintiffs proximity to the defendant's place of
public accommodation; (2) the plaintiffs past patronage; (3) the definiteness of the
plaintiffs plan to return; and (4) the plaintiffs frequency of nearby travel."
Mizic v. Pacious, Civ. Action No. 17-5023, 2017 WL 5593320, at *4 (E.D. Pa. Nov. 20, 2017)
(quoting Wittmann v. Island Hosp. Mgmt., No. Civ. 09-3698, 2011 WL 689613, at *5 (D.N.J. Feb.
18, 2011 )). "The four-factor test is one of totality, and a finding in favor of [the plaintiff] does not
require alignment of all four factors." Anderson, 943 F. Supp. 2d at 539 (quoting Harty v.
Burlington Coat Factory of Pa., L.L.C., No 11-01923, 2011WL2415169, at *4 (E.D. Pa. June 16,
2011)) (alteration in original).
Although not all four factors need to be satisfied in order for a plaintiff to plead an injuryin-fact, Scott's Complaint does not demonstrate that she will suffer any future injury from
Defendants' conduct. The only relevant information Scott provided is that she lives in Heidelberg,

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PA and that this incident occurred at a Giant Eagle in Shadyside, PA, which is about 12 miles
away. (ECF No. 1 ~ 1). Scott has failed to discuss at all her past patronage at the Shadyside
Market District, the specific definiteness of any plan to return, and the past and anticipated
frequency of her travel nearby. Therefore, Scott has failed to demonstrate that she has standing to
pursue the Title III claim.
Failure to State a Claim

"To state a claim of disability discrimination under Title III of the ADA, a plaintiff must
show ( 1) discrimination on the basis of a disability, (2) in the full and equal enjoyment of goods,
services, facilities, privileges, advantages or accommodations of any place of public
accommodation; (3) by the public accommodation's owner, lessor or operator."' Mizic, 2017 WL
5593320, at *4 (internal citation and quotation omitted); see 42 U.S.C. § 12182(a). A disability
under the ADA is defined as "(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment. ... " 42 U.S.C. § 12102(1). A plaintiff is discriminated
based on her disability if she is discriminated based on misconduct that stems from her disability.
Locastro v. Cannery Casino Resorts, LLC, No. 13cv0168, 2013 WL 1748347, at *3 (W.D. Pa.

Apr. 23, 2013). A private entity is considered a public accommodation where the entity is "a
restaurant, bar, or other establishment serving food or drink" or where the entity is a "grocery
store". 42 U.S.C. 12181(7)(8), (E).
Scott's Complaint fails to allege sufficient facts supporting a Title III claim that she was
discriminated on the basis of a disability and that she was deprived of the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations of any place of public
accommodation. While she makes reference to her use of an electric mobility chair, and her using

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an electrical outlet to charge it, her Complaint fails to show that any conduct of Giant Eagle was
because of a "disability."
B.

ADA Title II

Defendants Giant Eagle and the City of Pittsburgh argue that Scott's ADA Title II claim
fails because Giant Eagle is not a public entity.
"Title II of the ADA prohibits discrimination against the disabled in public services,
programs, and activities." Disability Rights NJ, Inc. v. Comm 'r, NJ Dep 't of Human Servs., 796
F.3d 293, 301 (3d Cir. 2015). "To state a prima facie case, a plaintiff must show that [s]he is a
'qualified individual with a disability'; that [s]he was excluded from a service, program, or activity
of a public entity; and that [s]he was excluded because of [her] disability." Id. (quoting 42 U.S.C.
§ 12132). A "public entity" includes "(A) any State or local government; (B) any department,

agency, special purpose district, or other instrumentality of a State or States or local government;
and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in
section 24102(4) of Title 49)." 42 U.S.C. § 12131. Scott alleges the same Title II violation against
both Defendants, and that she was unlawfully excluded from Giant Eagle, a public entity. Giant
Eagle is a grocery store and not a public entity within the meaning of the statute. Thus, because
Giant Eagle is not a public entity, Defendants Giant Eagle and the City of Pittsburgh's 4 motions to
dismiss with regard to this claim will be granted with prejudice.
IV.

CONCLUSION
For the above reasons, both Motions to Dismiss will be GRANTED. If Scott wants to

pursue her Title III claim against Giant Eagle knowing that monetary damages are not available

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The Complaint's Title Ill assertion as to the City Police appear to be wholly derivative of her assertions as to Giant
Eagle, and would fall on that ground alone. Further, the Complaint makes no fact-based allegation that the City Police
acted as alleged because of Plaintiffs claimed disability, or more accurately, that they responded to a call to Giant
Eagle in her situation in any differential manner.

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and that she can only potentially recover prospective injunctive relief, Scott may file an Amended
Complaint paying particular attention to the deficiencies as highlighted above in this memorandum
opinion. Leave to amend will not be granted as to Scott's Title II claim because pursuing this
claim is futile. See Cessna v. REA Energy Cooperative, Inc., 258 F.Supp.3d 566, 595 (W.D. Pa.
2017).
An appropriate order will issue.

~===-Mark R. Hornak
United States District Judge

Dated: March 2, 2018
cc: All counsel of record

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