Ramos v. 35/WCD CENTURY SOUTH K/C, LTD
ORDER GRANTING 1 Motion for Leave to Proceed in forma pauperis and ORDER that Plaintiff's Complaint be filed without prepayment of fees or costs. FURTHER ORDER that the Clerk issue summons and the United States Marshal Service attempt service. Signed by Judge Susan Hightower. (jv2)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
35/WCD CENTURY SOUTH K/C,
Case No. 1:22-CV-681-RP-SH
Before the Court are Plaintiff’s Application to Proceed In District Court Without Prepaying
Fees or Costs (Dkt. 1) and Complaint (Dkt. 1-2), both filed July 8, 2022. The District Court referred
this case to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), Federal Rule of Civil
Procedure 72, Rule 1 of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas, and the Court Docket Management Standing Order for United States
District Judge Robert Pitman. Dkt. 2.
Motion to Proceed In Forma Pauperis
Plaintiff Joey Ramos, who is represented by counsel, seeks leave to file his Complaint without
having to pay the filing fee. After reviewing his Application and financial affidavit in support, the
Court finds that Plaintiff is indigent. Accordingly, the Court hereby GRANTS Plaintiff in forma
pauperis status. This indigent status is granted subject to a later determination that the action
should be dismissed if the allegation of poverty is untrue or the action is found frivolous or
malicious pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff is advised that although he has been granted
leave to proceed in forma pauperis, the Court may, in its discretion, impose costs of court at the
conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
Accordingly, the Court HEREBY GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis
(Dkt. 1) and ORDERS his Complaint to be filed without prepayment of fees or costs or giving
security therefor, pursuant to 28 U.S.C. § 1915(a)(1).
II. Section 1915(e)(2) Frivolousness Review
Because Plaintiff has been granted leave to proceed in forma pauperis, the Court is required
by standing order to review his Complaint under § 1915(e)(2). A district court may summarily
dismiss a complaint filed in forma pauperis if it concludes that the action is (1) frivolous or
malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
In deciding whether a complaint states a claim, “[t]he court’s task is to determine whether the
plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s
likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387
(5th Cir. 2010). “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. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. The Court must “accept as true the allegations of the complaint, together with any reasonable
inferences that may be drawn therefrom.” Ryland v. Shapiro, 708 F.2d 967, 969 (5th Cir. 1983).
Plaintiff, who is disabled and uses a wheelchair, alleges that in March 2022, he “attempted to
but was deterred from patronizing and/or gaining equal access as a disabled patron to the Century
South Shopping Center located at 801 E William Cannon Dr., Ste 200, Austin, TX 78745” (the
“Property”). Dkt. 1-2 ¶ 9. Plaintiff alleges that physical barriers to access and dangerous conditions
on the Property precluded his access to the Property. Id. ¶ 22. Plaintiff alleges that he visited the
Property as a patron and as a “tester” and advocate for the disabled. Id. ¶ 7. Plaintiff alleges that
he lives within 30 miles of the Property and intends to revisit it. Plaintiff filed this lawsuit against
Defendant 35/WCD Century South K/C, Ltd., the “owner, lessor and/or operator/lessee” of the
Property, for declaratory and injunctive relief under Title III of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12181. Id. ¶ 10.
Title III of the ADA prohibits discrimination “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). Discrimination under this section includes “a
failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). To state a claim under Title III of the ADA based on
a failure to remove architectural barriers, a plaintiff must allege that (1) he is disabled; (2) the
defendant owns, leases, or operates a place of public accommodation; (3) the plaintiff encountered
architectural barriers prohibited under the ADA; and (4) the removal of the barriers is readily
achievable. Prim v. Stein, 6 F.4th 584, 595 (5th Cir. 2021); Kramer v. Brodie Oaks Ctr., Ltd.,
No. A-13-CA-670 LY, 2014 WL 690629, at *6 (W.D. Tex. Feb. 21, 2014).
The Court finds that Plaintiff’s allegations are sufficient at this stage of the case to avoid
dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B). Accordingly, the undersigned does
not recommend that the District Court dismiss this case under Section 1915(e)(2)(B).
The Court GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (Dkt. 1) and ORDERS
his Complaint to be filed without prepayment of fees or costs or giving security therefor, pursuant
to 28 U.S.C. § 1915(a)(1). The Court FURTHER ORDERS that the Clerk issue summons and
ORDERS the United States Marshals Service to attempt service in this case without pre-payment
of a service fee.
It is FURTHER ORDERED that the Clerk REMOVE this case from the Magistrate Court’s
docket and RETURN it to the docket of the Honorable Robert Pitman.
SIGNED on July 28, 2022.
UNITED STATES MAGISTRATE JUDGE
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