# DRISCOLL v. TROPICANA ATLANTIC CITY CORP.

> District Court, D. New Jersey · December 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10274310

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10274310

## How later opinions describe it (automated extraction)

- 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
- finding that pro se plaintiffs are expected to comply with the Federal Rules of Civil Procedure

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274310. Public record. Not legal advice.