GEORGE Z. SINGAL, District Judge.
Before the Court are Plaintiff Alla Iosifovna Shuper's Applications to Proceed In Forma Pauperis (ECF Nos. 5, 14 & 18). The Court hereby GRANTS Plaintiff leave to proceed in forma pauperis in this action.
Also before the Court are the Motion for Reconsideration (ECF No. 4) and the Motion to Amend the Motion for Reconsideration (ECF No. 6). Both of these Motions pertain to the Court's November 18, 2014 Order requesting that Plaintiff either pay the filing fee or file a request to proceed in forma pauperis in each of her docketed cases. (
Plaintiff Shuper has also filed an Appeal to the Chief Judge (ECF No. 7). To the extent that Plaintiff Shuper is appealing the Court's November 18, 2014 Order to the Chief Judge, there is no such right to appeal to the Chief Judge, and it is therefore DENIED. As with the Motion for Reconsideration and the Motion to Amend the Motion for Reconsideration, pro se Plaintiff Shuper's Appeal to the Chief Judge was filed in each of her then twenty-four cases.
Plaintiff Shuper has also filed a Motion to Accept the Change in Pro Se Filing, thereby requesting that she be permitted to file documents manually rather than electronically (ECF No. 10). The Court GRANTS the Motion, which has also been filed in each of her cases.
Upon the Court's review of the Complaint, the Court concludes that the case must be dismissed in accordance with 28 U.S.C. § 1915(e)(2). Through the handwritten Complaint, Plaintiff Shuper attempts to bring a case against Walmart Corporation and David G. The Complaint alleges that in October or November of 2013, Plaintiff Shuper visited the Walmart in Falmouth, Maine to pay for a cellular phone and a newspaper. (Compl. at 1, ¶¶ 1, 2.) The Complaint alleges that Plaintiff Shuper's Walmart Card had money on it but that it did not work. (Id. ¶¶ 3, 4.) The Complaint alleges that Plaintiff Shuper asked why her card did not work, when only five minutes prior she put money onto the card and had a receipt for that transaction. (Id. ¶ 5.) Plaintiff Shuper became anxious and raised her voice. (
Liberally construing the Complaint, the Court cannot see any claim against the named Defendants. First, to the extent that Plaintiff Shuper asserts a claim for violations of 42 U.S.C. § 1983, in order to be held liable under § 1983, a defendant must be a state actor.
The Complaint also fails to state a claim for a violation of the Americans with Disabilities Act ("ADA"). Title III
Even assuming that Plaintiff Shuper is disabled and that Walmart is a place of public accommodation, the Complaint fails to state a claim for which relief can be granted. There is no allegation or inference that Walmart denied Plaintiff physical access, refused to sell her any goods or impaired her full enjoyment of the services and goods offered by Walmart because of her disability.
Finally, Title III provides a remedy only to an individual "who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title." 42 U.S.C. § 12188(a)(1) (emphasis added). In short, Title III does not apply to the Complaint, which concerns solely past events that took place in 2012 or 2013 and seeks money damages.
The Complaint also fails to state a claim for violations of the Maine Human Rights Act ("MHRA") because the Court's analysis of the ADA claim applies with equal force to a MHRA claim.
To the extent that the Complaint could be construed to assert any state-based tort claims, the Court declines to exercise supplemental jurisdiction over those claims.
In accordance with 28 U.S.C. § 1915(e)(2), the Court readily finds the present Complaint fails to state any cognizable claim. Therefore, the Complaint must be DISMISSED.
Also before the Court are Plaintiff Shuper's Motions to Amend the Complaint. (ECF Nos.
2 & 22.) Defendant Walmart has filed an opposition to the Motions to Amend. (ECF No. 23.) Plaintiff Shuper's first Motion to Amend alleges that on November 17, 2014, the Pharmacy Manager, Mr. Andrew, refused to assist Plaintiff Shuper in exchanging a product for her eyes and answering her questions about that product. (Mot. to Amend Compl. (ECF No. 2) at Page ID # 5-7.) Plaintiff Shuper's Second Motion to Amend alleges that Plaintiff Shuper returned to the Walmart in Falmouth the day after the events described in the original Complaint and that the Manager, David G., was unable to answer her questions regarding why her card did not work and why she was asked to leave the store. (Mot. to Amend the Amended Compl. (ECF No. 22) at Page ID # 98-102.) Because the Court finds that the Motions to Amend would be futile under Federal Rule of Civil Procedure 15, the Motions to Amend are DENIED.
Finally, before the Court is Plaintiff Shuper's Motion for Leave to Appeal In Forma Pauperis (ECF No. 13). Through Plaintiff Shuper's Motion, she asks this Court to excuse her from paying the filing fees in connection with her November 28, 2014 Notice of Appeal (ECF No. 12). The Court believes that Plaintiff Shuper's November 28, 2014 Notice of Appeal is premature and improper given the procedural posture of her case. As a result, the Court concludes that the present appeal is not taken in good faith as required under 28 U.S.C. § 1915(a)(3) & F.R.A.P. 24(a)(2) & (4). For this reason, the Court DENIES the Motion for Leave to Appeal In Forma Pauperis (ECF No. 13).
The Clerk is directed to DISMISS this action and mail a copy of this Order to Plaintiff Shuper. Additionally, the Court certifies that any appeal from this Order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3).
SO ORDERED.