OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on the required frivolity review of Plaintiff Daniel Yakkey's ("Plaintiff") Complaint [3] pursuant to 28 U.S.C. § 1915(e)(2)(B).

I. BACKGROUND

On January 12, 2017, Plaintiff, represented by counsel, filed his application for leave to proceed in forma pauperis [1]. On January 13, 2017, Magistrate Judge J. Clay Fuller granted Plaintiff's application, and forwarded Plaintiff's Complaint to the Court for the required frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B).

Plaintiff is a paraplegic and uses a wheelchair for mobility. Plaintiff alleges that, around December 2015, Plaintiff visited Defendant Metro Mart USA ("Metro Mart"), that he was unable to use the restroom because his wheelchair did not fit through the restroom entryway, and that he had to relieve himself in his wheelchair. Plaintiff asserts the following claims: (1) violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 1201 et seq., (2) negligence per se under O.C.G.A. § 51-1-6, and (3) negligent infliction of emotional distress. Plaintiff seeks compensatory damages, attorneys' fees, and injunctive relief to alter the Metro Mart facilities to make them readily accessible to, and usable by, individuals with disabilities.

II. DISCUSSION

A. Legal Standard

A court must dismiss a complaint filed in forma pauperis if at any time the court determines the action is frivolous or malicious or that it fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). "Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6)." Wilkerson v. H&S, Inc., 366 F. App'x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)). Under this standard, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to 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." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

Review for frivolousness, on the other hand, "`accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.'" Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it "has little or no chance of success," that is, when it appears "from the face of the complaint that the factual allegations are `clearly baseless' or that the legal theories are `indisputably meritless.'" Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting Neitzke, 490 U.S. at 327).

B. Analysis

"In order to prevail under Title III of the ADA, a plaintiff generally has the burden of proving: (1) that [plaintiff] is an individual with a disability; (2) that defendant is a place of public accommodation; and (3) that defendant denied [plaintiff] full and equal enjoyment of the goods, services, facilities or privileges offered by defendant (4) on the basis of [plaintiff's] disability." Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1299 (11th Cir. 2005) (quoting Larsen v. Carnival Corp., Inc., 242 F.Supp.2d 1333, 1342 (S.D. Fla. 2003)). Plaintiff alleges that he is an individual with a disability, that Metro Mart provides accommodations to the public and is thus a place of public accommodation, and that Metro Mart denied Plaintiff full and equal enjoyment of its restrooms on the basis of Plaintiff's disability. At this preliminary stage of the case, the Court finds that Plaintiff's ADA claim should be allowed to proceed.

The Court next considers Plaintiff's claim for negligence per se under O.C.G.A. § 51-1-6. Section 51-1-6 provides:

O.C.G. A. § 51-1-6. "Section 51-1-6 allows an individual to assert a tort claim for the violation of a legal duty where a cause of action does not otherwise exist." Higdon v. Jackson, 393 F.3d 1211, 1221 (11th Cir. 2004). In Higdon, the Eleventh Circuit held that, because Title II of the ADA provided the plaintiff a cause of action, which she asserted, Section 51-1-6 did not allow her to pursue duplicative remedies for an alleged violation of federal law. Here, Plaintiff asserts a cause of action under Title III of the ADA, and Section 51-1-6 does not allow her to pursue a duplicative remedy. Accordingly, Plaintiff's negligence per se cause of action under Section 51-1-6 is dismissed.

Turning to Plaintiff's final claim, under Georgia law, for negligent infliction of emotional distress, the plaintiff must allege that the defendant's conduct resulted in "some impact on the plaintiff, and that impact must be a physical injury." Ryckeley v. Calloway, 412 S.E.2d 826 (Ga. 1992). The impact rule has three elements: (1) physical impact to the plaintiff; (2) the impact causes physical injury to the plaintiff; and (3) the physical injury causes the plaintiff's mental suffering or emotional distress. Holbrook v. Stansell, 562 S.E.2d 731, 733 (Ga. Ct. App. 2002). Plaintiff alleges that, because of the Defendants' negligent action, Plaintiff "was forced to sit in pain and discomfort," that he "felt he might damage his bladder" or other organs, "which caused him to fear for his personal safety." (Compl. ¶¶ 32-34). He alleges that he "was unable to continue holding his bladder, and as a result was forced to relieve himself in his wheelchair, causing Plaintiff significant mental anguish and emotional distress." (Id. ¶ 35). It appears Plaintiff alleges he has been physically impacted, that the impact caused him pain, and that the pain caused him mental suffering. In light of these allegations and the preliminary stage of this case, the Court finds that Plaintiff's negligent infliction of emotional distress claim should be allowed to proceed.

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiff's ADA and negligent infliction of emotional distress claims are ALLOWED TO PROCEED.

IT IS FURTHER ORDERED that Plaintiff's negligence per se claim is DISMISSED under 28 U.S.C. § 1915(e)(2)(B).

The Clerk is DIRECTED to send Plaintiff copies of a USM 285 form, summons, and initial disclosures form. Plaintiff is DIRECTED to complete the USM 285 form, the summons, and the initial disclosures form and return one for Defendant to the Clerk of Court within twenty (20) days of the entry date of this Order. The Clerk is DIRECTED to resubmit this action to the undersigned if Plaintiff fails to comply. Plaintiff is warned that if he fails to provide accurate address information to the Clerk of Court for Defendant or fails to return the forms to the Clerk of Court within twenty (20) days of the entry date of this Order, this action may be dismissed for failure to obey a lawful order of the Court. See LR 41.3 A.(2), N.D. Ga.

Upon receipt of the forms by the Clerk, the Clerk is DIRECTED to prepare a service waiver package for Defendant. The service waiver package must include, two (2) Notices of Lawsuit and Request for Waiver of Service of Summons (prepared by the Clerk), two (2) Waiver of Service of Summons forms (prepared by the Clerk), an envelope addressed to the Clerk of Court with adequate first class postage for use by Defendant for return of the waiver form, one (1) copy of the Complaint, one (1) copy of the initial disclosures form, and one (1) copy of this Order. The Clerk shall retain the USM 285 forms and the summons.

Upon completion of the service waiver package, the Clerk is DIRECTED to complete the lower portion of the Notice of Lawsuit and Request for Waiver form and to mail the service waiver package to Defendant. Defendant has a duty to avoid unnecessary costs of serving the summons. If Defendant fails to comply with the request for waiver of service, the Defendant must bear the costs of personal service unless good cause can be shown for failure to return the Waiver of Service form.

In the event Defendant does not return the Waiver of Service form to the Clerk of Court within thirty-five (35) days following the date the service waiver package was mailed, the Clerk is DIRECTED to prepare and transmit to the USMS a service package. The service package must include the USM 285 form, the summons, and one (1) copy of the Complaint. Upon receipt of the service package, the USMS is DIRECTED to personally serve Defendant. The executed waiver form or the completed USM 285 form shall be filed with the Clerk.

SO ORDERED.

DOCUMENTS ASSOCIATED WITH CIVIL CASES PENDING IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

I. INITIAL DISCLOSURES

A. Plaintiffs Initial Disclosures.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ________________ DIVISION

PLAINTIFF'S INITIAL DISCLOSURES

(1) State precisely the classification of the cause of action being filed, a brief factual outline of the case including plaintiffs contentions as to what defendant did or failed to do, and a succinct statement of the legal issues in the case.

_______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________

(2) Describe in detail all statutes, codes, regulations, legal principles, standards and customs or usages, and illustrative case law which plaintiff contends are applicable to this action.

_______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________

(3) Provide the name and, if known, the address and telephone number of each individual likely to have discoverable information that you may use to support your claims or defenses, unless solely for impeachment, identifying the subjects of the information. (Attach witness list to Initial Disclosures as Attachment A.)

(4) Provide the name of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. For all experts described in Fed.R.Civ.P. 26(a)(2)(B), provide a separate written report satisfying the provisions of that rule. (Attach expert witness list and written reports to Initial Disclosures as Attachment B.)

(5) Provide a copy of, or a description by category and location of, all documents, data compilations, and tangible things in your possession, custody, or control that you may use to support your claims or defenses unless solely for impeachment, identifying the subjects of the information. (Attach document list and descriptions to Initial Disclosures as Attachment C.)

(6) In the space provided below, provide a computation of any category of damages claimed by you. In addition, include a copy of, or describe by category and location of, the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered, making such documents or evidentiary material available for inspection and copying as under Fed.R.Civ.P. 34. (Attach any copies and descriptions to Initial Disclosures as Attachment D.)

_______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ __________________________________________________________________________

(7) Attach for inspection and copying as under Fed.R.Civ.P. 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy the judgment. (Attach copy of insurance agreement to Initial Disclosures as Attachment E.)

(8) Disclose the full name, address, and telephone number of all persons or legal entities who have a subrogation interest in the cause of action set forth in plaintiffs cause of action and state the basis and extent of such interest.

_______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ __________________________________________________________________________

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.