DRISCOLL v. TROPICANA ATLANTIC CITY CORP.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT DRISCOLL, No. 1: 22-cv-05157-NLH-SAK

Plaintiff,

v.

OPINION

TROPICANA ATLANTIC CITY CORP.

d/b/a Tropicana Hotel and

Casino located at 2831

Boardwalk in Atlantic City,

New Jersey 08410 & (2)

Caesars Entertainment, Inc.,

Defendants.

APPEARANCES:

ROBERT DRISCOLL

2715 BOARDWALK, 1511

ATLANTIC CITY, NJ 08401

Plaintiff appearing pro se.

HILLMAN, District Judge

This case arises from Plaintiff Robert Driscoll’s

allegations that his roommate has suffered violations of the

Americans with Disabilities Act (“ADA”) and various civil rights

laws by Defendants Tropicana Atlantic City Corp. (“Tropicana”)

and Caesars Entertainment, Inc. The matter is presently before

the Court because Plaintiff, appearing pro se, has applied to

proceed in forma pauperis (“IFP”) and the Court must screen this

complaint before allowing the case to proceed. The Court will

grant Plaintiff’s IFP application but will dismiss Plaintiff’s

claims without prejudice with leave to amend.

BACKGROUND

Plaintiff lives with a roommate, Jessica Berk (“Berk”), in

a retirement community located next to the Tropicana, which is a

place where Plaintiff regularly shops, eats, and utilizes their

facilities for “hygiene” and entertainment purposes such as

gambling and IMAX. (ECF No. 1 at 2). Plaintiff asserts that he

and Berk are disabled. (Id. at 1-2). Plaintiff then alleges

several incidents where the staff of the Tropicana violated

Berk’s right to access public accommodations because of her

disability. Plaintiff asserts that he has explained to the

staff of the Tropicana Berk’s disabilities, and despite his

efforts she has endured discriminatory behavior from Defendants.

(Id. at 3). Plaintiff asserts that on “several occasions” the

security personnel of the Tropicana have “harassed” Berk “due to

her appearance due to her disability” and further complains of

her being issued tickets. (Id. at 4). Plaintiff says that he

was “scorned” for attempting to interfere with the staff when

witnessing these events. (Id. at 5).

Plaintiff describes an incident where he witnessed Berk

being “harassed” because she brought her service dog into the

Tropicana. (Id. at 4). Plaintiff also alleges specifically

that on or about March 26, 2022, Plaintiff accompanied Berk

while shopping in the Tropicana when she was accused of

panhandling “based on her appearance, which is related to her

disability.” (Id. at 5). Plaintiff asserts that she was not

panhandling. (Id.). Plaintiff further describes that he

witnessed Berk being harassed, insulted for her disabilities,

and “paraded in front of crowds of people” which “wasn’t very

pleasant to him” and “embarrassed him.” (Id. at 6). She was

then “subject to brutal force” by security and placed in

handcuffs. (Id.). Plaintiff alleges that he witnessed Berk in

“excruciating pain and hyperventilating.” (Id.). The Atlantic

City Police arrived and told the security personnel that they

had to loosen and then uncuff Berk because she was in pain.

(Id.). Plaintiff asserts that she was further detained in an

interior holding area. (Id. at 7). Thereafter Plaintiff

alleges that Defendants charged Berk with “defiant trespass.”

(Id.).

Plaintiff asserts that Berk did not violate any laws and

that the “gang-like attack” was “offensive” to Plaintiff because

he is a disabled activist and that the staff was negligent,

careless, and reckless in the way they treated him when trying

to help Berk. (Id. at 7, 9). Plaintiff alleges that this

incident was the result of Defendants’ “history of harassment,”

their failure to train and manage their staff as to disability

law and proper protocols to reduce excessive force while

evicting patrons, and a “philosophy of management staff

convenience over the hospitality needs, safety, and well-being

of guests.” (Id. at 7-9). Plaintiff asserts that Berk suffered

a variety of injuries and damages due to Defendants’ conduct.

(Id. at 11).

Separately, Plaintiff claims that he finds it difficult to

enter the Tropicana because it does not have handicapped access

from the boardwalk and suffers “embarrassment” from this

“architectural fault.” (Id. at 9).

DISCUSSION

I. Subject Matter Jurisdiction

The Court has subject matter jurisdiction over this matter

pursuant to 28 U.S.C. § 1331, as Plaintiff has asserted his

claims under the ADA.

II. Plaintiff’s IFP Application

Pursuant to Local Civil Rule 54.3, the Clerk shall not be

required to enter any suit, file any paper, issue any process,

or render any other service for which a fee is prescribed,

unless the fee is paid in advance. Under certain circumstances,

however, this Court may permit an indigent plaintiff to proceed

in forma pauperis.

A pro se plaintiff wishing to proceed in forma pauperis

must fill out form “AO 239 (Rev. 01/15) Application to Proceed

in District Court Without Prepaying Fees or Costs.” The form

requires the plaintiff to “[c]omplete all questions in this

application,” and “[d]o not leave any blanks.” In addition, “if

the answer to a question is ‘0,’ ‘none,’ or ‘not applicable

(N/A),’ write that response.” The form contains twelve

questions, and many questions contain numerous subparts, which

are utilized by the Court to determine a plaintiff’s indigency.

Finally, as part of the application, the plaintiff must swear

under penalty of perjury that the information contained in the

application is true.

Plaintiff’s IFP application states, under penalty of

perjury, that his monthly expenses are greater than his total

monthly income, (ECF No. 1 at 13-17). While Plaintiff does have

some liquid assets available to pay the filing fee at this time

in his checking account, his net negative monthly cash flow

suggests those funds may be required for necessities such rent

and food each month. Id. Therefore, the Court finds that

Plaintiff is essentially indigent and may proceed in forma

pauperis.

III. Standard for Screening Complaints Filed IFP

Although § 1915 refers to “prisoners,” federal courts apply

§ 1915 to non-prisoner IFP applications. See Hickson v. Mauro,

No. 11-6304, 2011 WL 6001088 at *1 (D.N.J. Nov. 30, 2011)

(citing Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th

Cir. 2005)) (“Section 1915(a) applies to all persons applying

for IFP status, and not just to prisoners.”). Once IFP status

has been granted, a court must follow the screening provisions

of the IFP statute. The screening provisions of the IFP statute

require a federal court to dismiss an action sua sponte if,

among other things, the action is frivolous or malicious, or if

it fails to comply with proper pleading standards. See 28

U.S.C. § 1915(e)(2)(B)(i)-(iii); Ball v. Famiglio, 726 F.3d 448,

452 (3d Cir. 2013); Martin v. U.S. Dep’t of Homeland Sec., No.

17-3129, 2017 WL 3783702 at *1 (D.N.J. Aug. 30, 2017) (“Federal

law requires this Court to screen Plaintiff’s Complaint for sua

sponte dismissal prior to service, and to dismiss any claim if

that claim fails to state a claim upon which relief may be

granted under Fed. R. Civ. P. 12(b)(6) and/or to dismiss any

defendant who is immune from suit.”).

As indicated, this Court must follow the Rule 12(b)(6)

standard in considering a pro se complaint. Pro se complaints

must be construed liberally, and all reasonable latitude must be

afforded the pro se litigant. Estelle v. Gamble, 429 U.S. 97,

107 (1976). But pro se litigants “must still plead the

essential elements of [their] claim and [are] not excused from

conforming to the standard rules of civil procedure.” McNeil v.

United States, 508 U.S. 106, 113 (1993) (“[W]e have never

suggested that procedural rules in ordinary civil litigation

should be interpreted so as to excuse mistakes by those who

proceed without counsel.”); Sykes v. Blockbuster Video, 205 F.

App’x 961, 963 (3d Cir. 2006) (finding that pro se plaintiffs

are expected to comply with the Federal Rules of Civil

Procedure).

When screening a complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6), a court must accept all well-pleaded

allegations in the complaint as true and view them in the light

most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d

347, 351 (3d Cir. 2005). It is well settled that a pleading is

sufficient if it contains “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2).

“While a complaint [scrutinized under] Rule 12(b)(6) motion

to dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do ....” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (alteration in original) (citations

omitted) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957);

Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247,

251 (7th Cir. 1994); Papasan v. Allain, 478 U.S. 265, 286

(1986)).

A district court asks “not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claim.” Twombly, 550 U.S. at 563 n.8,

(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also

Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the

pleading standard for ‘all civil actions’ ....”); Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal ... provides

the final nail in the coffin for the ‘no set of facts’ standard

that applied to federal complaints before Twombly.”). A

complaint should be dismissed “if the plaintiff is unable to

plead ‘enough facts to state a claim to relief that is plausible

on its face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550

U.S. at 570).

IV. Analysis

A threshold issue is whether, on the face of the Complaint,

the Plaintiff has standing because without standing a court does

not have a case to hear. “No principle is more fundamental to

the judiciary’s proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to

actual cases or controversies.” Simon v. E. Ky. Welfare Rights

Org., 426 U.S. 26, 37(1976). Courts enforce the case-or-

controversy requirement through the several doctrines with the

issue of standing being “[p]erhaps the most important of these

doctrines.” Toll Bros., Inc. v. Twp. of Readington, 555 F.3d

131, 137 (3d Cir. 2009). Standing “is every bit as important in

its circumscription of the judicial power of the United States

as in its granting of that power.” Valley Forge Christian Coll.

v. Ams. United for Separation of Church & State, Inc., 454 U.S.

464, 476 (1982).

There are three elements that Plaintiffs must meet to

satisfy Article III standing. First, there must be an “injury

in fact,” or an “invasion of a legally protected interest” that

is “concrete and particularized.” In re Horizon Healthcare

Servs. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017)

(alteration in original) (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 560-61 (1992)). Second, there must be a “causal

connection between the injury and the conduct complained of[.]”

Id. Third, there must be a likelihood “that the injury will be

redressed by a favorable decision.” Id. But the most essential

component of standing is that the party asserting claims must

himself be among the injured. Lujan, 504 U.S. at 563 (quoting

Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972)).

The Third Circuit echoes that for a harm to qualify as an

actual or imminent injury, the harm must be distinct and

personal to the plaintiff. Brown v. Showboat Atlantic City

Propco, LLC, No. 08-5145, 2010 WL 5237855 at *8 (D.N.J. Dec. 16,

2010) (citing Toll Bros., Inc., 555 F.3d at 138). The focus of

the analysis should not be on whether a defendant violated a

statute or a right (here, the ADA), but rather on whether the

plaintiff themselves suffered an injury. Id. (citing Doe v.

Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 153 (3d. Cir. 1999)).

Here, Plaintiff makes a variety of allegations and claims

not on his behalf, but on behalf of Berk. The Third Circuit has

held that in rare circumstances, third parties can achieve

standing to bring claims on behalf of others, but that “third

party standing is exceptional” and that “a litigant seeking to

bring an action on behalf of a third party bears the burden of

establishing that it has third party standing.” Wheeler v.

Travelers Ins. Co., 22 F.3d 534, 539 (3d Cir. 1994). The third-

party standing doctrine is separate from standing in that

“courts have imposed a set of prudential limitations on the

exercise of federal jurisdiction over third-party claims.”

Bennett v. Spear, 520 U.S. 154, 162 (1997). There are three

factors to consider when reviewing an action being brought on

behalf of a third party: the closeness of the relationship

between the litigant and the third party, potential conflicts of

interest between the litigant and the third party, and obstacles

to suit by the third party. Wheeler, 22 F.3d at 539 n.11.

Berk is Plaintiff’s “roommate,” but nowhere in the

complaint does he allege that he has the kind of “close

relationship” with Berk that would give him third party standing

to allege claims on her behalf, such as a lawyer for their

client. Kowlaski v. Tesner, 543 U.S. 125 (2004) (holding that

the attorneys lacked third-party standing to challenge the

constitutionality of a procedure for appointing appellate

counsel for indigent defendants because they did not have a

relationship with the hypothetical clients). Plaintiff does not

address whether he is free of conflicts of interest in Berk’s

claims, nor does he assert that Berk could not bring her own

suit. While the Court can speculate that possibly Berk’s

disabilities would make bringing suit herself difficult, this

hypothetical is insufficient for the Court to give such an

“exceptional” grant, nor is the Court empowered to speculate, as

it is the complainant’s burden to establish that he has third

party standing. Wheeler, 22 F.3d at 539. Moreover, the very

allegations of the Complaint in which Plaintiff asserts Berk has

been denied access to the amenities of the Tropicana suggest she

is competent in her own affairs.

While most of the claims asserted by Plaintiff were on

behalf of his roommate, Plaintiff does note in several places

how the Tropicana’s actions or inactions impacted him.

Plaintiff claims that he finds it difficult to enter the

Tropicana because it does not have handicapped access from the

boardwalk and suffers “embarrassment” from this “architectural

fault.” (Id. at 9). However, Plaintiff does not assert that

the Tropicana is not complaint with the ADA and that there are

no handicapped entrances available to him. In fact, he alleges

he regularly attends events there. Plaintiff also asserted that

in the above-described incident between Berk and Tropicana’s

security personnel was “offensive” to Plaintiff and that the

staff was negligent, careless, and reckless in the way they

treated him when trying to help Berk. (Id. at 7, 9). Neither

of these claims, however, contain enough factual matter to

establish personal standing or are sufficient to state a claim

for relief. “A motion to dismiss should be granted if the

plaintiff is unable to plead ‘enough facts to state a claim to

relief that is plausible on its face.’” Malleus, 641 F.3d at

563 (quoting Twombly, 550 U.S. at 570). Therefore, the Court

will dismiss this complaint.

However, because Plaintiff is proceeding pro se and asserts

civil rights claims, and because it is possible that the

assertion of more factual material may state a claim or

establish standing, either personal or third-party, he will be

granted leave to file an Amended Complaint within 30 days to

address the deficiencies noted in this Opinion. If Plaintiff

fails to file an Amended Complaint in the allotted time, the

Clerk will be directed to mark this matter as closed.

CONCLUSION

For the reasons expressed above, the Court will grant

Plaintiff’s IFP application (ECF No. 1 at 13-17). However,

Plaintiff does not have standing to pursue his claims further,

and the Complaint in its present form will be dismissed with

leave granted to amend.

An appropriate Order will be entered.

Date: December 8, 2022 _s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.