PAUL M. WARNER, Chief Magistrate Judge.
District Judge Tena Campbell referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).
At the outset, the court recognizes that Plaintiff Michael C. Sussman ("Plaintiff") is proceeding pro se in this case. Consequently, the court will construe his pleadings liberally. See e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
The following facts are taken from the court's liberal reading of Plaintiff's complaint, which is generally vague and difficult to decipher. On June 26, 2018, Plaintiff alleges that he was refused service at a restaurant owned by Defendant in Sugarhouse, Utah, because he submitted online guest surveys or comments about employees at the restaurant. Plaintiff contends that, on that day, he had a conversation with a restaurant employee identified as "Mark Park" ("Park"). Plaintiff alleges that during that conversation, Park "refused [Plaintiff] service," "trash talked [Plaintiff] to an extreme," and "informed [Plaintiff] of his permanent criminal trespass status."
Based on those allegations Plaintiff's complaint purports to assert the following five causes of action: fraud, violations of Title II of the Civil Rights Act, violations of the Utah Civil Rights Act, violations of Plaintiff's due process rights, and violations of the Americans with Disabilities Act ("ADA").
A defendant may challenge a claim through a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when a court lacks subject matter jurisdiction. A court lacks subject matter jurisdiction over civil actions if the Plaintiff cannot satisfy the requirements of Article III standing, which are injury-in-fact, causation, and redressability. See Petrella v. Brownback, 697 F.3d 1285, 1293 (10th Cir. 2012).
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim for 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 court should "assume the factual allegations are true and ask whether it is plausible that the plaintiff is entitled to relief." Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). Thus, "the complaint must give the court reason to believe that this plaintiff has reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis omitted).
In conducting the analysis of Defendant's motion, the court is mindful that Plaintiff is proceeding pro se in this case and that "[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also, e.g., Ledbetter, 318 F.3d at 1187. At the same time, however, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant," Bellmon, 935 F.2d at 1110, and the court "will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam). Further,
Bellmon, 935 F.2d at 1110 (citations omitted).
Defendant first argues that Plaintiff lacks standing in this case. Defendant also argues that Plaintiff's complaint fails to state any claims upon which relief may be granted. The court will address those arguments in turn.
The federal judicial power extends only to cases and controversies. See U.S. Const. Art. III. For a case or controversy to be justiciable, it must involve "questions presented in an adversary context and . . . capable of resolution through the judicial process." Mass. v. Envtl. Prot. Agency, 549 U.S. 497, 516 (2007) (quotations and citation omitted). The three requirements of Article III standing — injury-in-fact, causation, and redressability — ensure that the parties to any litigation have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of the issues upon which the court so largely depends for illumination." Id. at 517 (quotations and citation omitted). It is the plaintiff's burden to demonstrate these requirements are met. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Each of these requirements "must be established before a federal court can review the merits of the case." Consumer Data Indus. Ass'n v. King, 678 F.3d 898, 902 (10th Cir. 2012). As for the requirement of injury-in-fact, the injury alleged by the Plaintiff must be "concrete and particularized." Summers, 555 U.S. at 493.
The court concludes that Plaintiff lacks Article III standing to bring this lawsuit because he has not suffered an injury-in-fact. As a threshold matter, Plaintiff fails to allege how he has been injured by Defendant. In the complaint, Plaintiff alleges that because he submitted guest surveys online, he was "refused service, trash talked to an extreme, and informed of his permanent criminal trespass status."
As noted above, Plaintiff's complaint purports to assert the following five causes of action: (A) fraud, (B) violations of Title II of the Civil Rights Act, (C) violations of the Utah Civil Rights Act, (D) violations of Plaintiff's due process rights, and (E) violations of the Americans with Disabilities Act ("ADA"). Based upon the following analysis, the court concludes that this action should be dismissed for failure to state any claims upon which relief can be granted.
Pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, to properly allege fraud, Plaintiff "must state with particularity the circumstances constituting fraud or mistake." Fed R. Civ. P. 9(b). The Utah Supreme Court has set forth the elements of fraud as follows:
Crookston v. Fire Ins. Exch., 817 P.2d 789, 800 (Utah 1991) (alterations in original).
Plaintiff's fraud claim is based on his conclusory allegation that he "was defrauded."
Title II of the Civil Rights Act protects an individual's "full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation" free of discrimination based on race, color, religion, or national origin. 42 U.S.C. § 2000a(a). To plead a prima facie case of Title II public accommodation discrimination, a plaintiff must show that he: "(1) is a member of a protected class, (2) attempted to exercise the right to full benefits and enjoyment of a place of public accommodation, (3) was denied those benefits and enjoyment, and (4) was treated less favorably than similarly situated persons who are not members of the protected class." McCoy v. Homestead Studio Suites Hotels, 390 F.Supp.2d 577, 584-85 (S.D. Tex. 2005).
Plaintiff has not alleged that he is a member of a protected class, nor has he alleged that he was treated less favorably than a similarly situated person outside of any protected class. In fact, it is not even clear from the complaint whether Plaintiff is claiming discrimination based on race, color, religion, or national origin. Consequently, he has not alleged facts sufficient to plead a plausible Title II claim. Moreover, his own allegations further make clear that any adverse actions about which he is complaining were taken because of his actions with respect to guest surveys, and not because of Plaintiff's membership in any class protected by Title II. Accordingly, the court concludes that Plaintiff fails to state a claim for violations of Title II of the Civil Rights Act.
The relevant portion of the Utah Civil Rights Act provides:
Utah Code § 13-7-3.
Although Plaintiff's complaint purports to assert a claim for violations of the Utah Civil Rights Act, Plaintiff has failed to allege any specific facts showing discrimination against him on the basis of his race, color, sex, religion, ancestry, or national origin, nor has he pled any specific facts from which such discrimination may reasonably be inferred. Thus, for the same reasons that Plaintiff fails to state a claim under Title II of the Civil Rights Act, he also fails to state a claim under the Utah Civil Rights Act.
Plaintiff's complaint does not explain how he claims that Defendant has violated his rights under the Due Process clause of the Fourteenth Amendment. Regardless of the nature of Plaintiff's intended theory in this regard, this claim must be dismissed because, as the Tenth Circuit has explained, "the Due Process Clause of the Fourteenth Amendment by its plain language applies only to state action," and "private action itself is never cognizable under § 1983." Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 927-28 (10th Cir. 2012). Simply put, Plaintiff cannot assert a due process claim against Defendant because Defendant is not a state actor. Therefore, Plaintiff fails to state a claim for violations of his due process rights.
Although Plaintiff does not specify which title of the ADA he relies upon, it appears, based on the other claims listed in the complaint, that he is attempting to assert a claim under Title III of the ADA, which prohibits discrimination based on disability by places of public accommodation.
While Plaintiff attempts to plead that he is disabled within the meaning of the ADA by claiming that Park had "the perception of an emotional disability in connection with the Plaintiff,"
Based on the foregoing, it is hereby recommended that Defendant's motion to dismiss
Copies of this Report and Recommendation are being sent to all parties, who are hereby notified of their right to object. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). The parties must file any objection to this Report and Recommendation within fourteen (14) days after being served with a copy of it. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object may constitute waiver of objections upon subsequent review.
