WAITERS v. REPUBLIC BANK

IN THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW

JERSEY CAMDEN VICINAGE

CASSANDRA WAITERS, CYLE

BURNETT, VICKIE BURNETT-

WILLIAMS,

Civil No. 24-5728 (RMB-MJS)

Plaintiffs,

OPINION

v.

REPUBLIC BANK, CHERRY HILL

POLICE DEPARTMENT,

Defendants.

RENÉE MARIE BUMB, Chief United States District Judge

THIS MATTER comes before the Court upon the filing of a Complaint and

application to proceed in forma pauperis (“IFP”) by pro se plaintiff Cassandra Waiters.

The IFP application establishes Ms. Waiters’ financial eligibility to proceed without

prepayment of the filing fee and will be granted. Her co-plaintiffs, Cyle Burnett, and

Vickie Burnet-Williams (together with Ms. Waiters, “Plaintiffs”) did not complete

their own IFP applications. They must do so for the Court to determine whether each

of the Plaintiffs are economically eligible to proceed on an IFP basis. Johnson v. Camden

Cnty. Warden, 2023 WL 2238110, at *1 (D.N.J. Feb. 24, 2023) (under 28 U.S.C. §

1915, “each plaintiff must submit a complete application to proceed in forma pauperis

if he desires the complaint to be filed on his behalf”); see also Hickson v. Mauro, 2011

WL 6001088, at *1 (D.N.J. Nov. 30, 2011) (“Although Section 1915 refers to

‘prisoners’, federal courts apply Section 1915 to non-prisoner IFP applications.”).

Accordingly, the Court will administratively terminate Mr. Burnett and Ms. Vickie

Burnet-Williams from this case pending receipt of their own IFP applications.1

I. SCREENING FOR DISMISSAL

When a person files a complaint and is granted IFP status, 28 U.S.C. §

1915(e)(2)(B) requires courts to review the complaint and dismiss claims that are: (1)

frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3)

seek monetary relief against a defendant who is immune from such relief. Courts,

however, must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551

U.S. 89, 94 (2007). The legal standard for dismissing a complaint for failure to state a

claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), is the same as that for dismissal under

Federal Rule of Civil Procedure 12(b)(6). See Schreane v. Seana, 506 F. App’x 120, 122

(3d Cir. 2012). “To survive a motion to dismiss, 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 Atlantic 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.” Twombly, 550 U.S. at 556.

1 Because the allegations in the Complaint are the same with respect to each of the

three plaintiffs, the Court cautions that submission of IFP applications by Mr. Burnett

and Ms. Vickie Burnet-Williams will likely result in the dismissal of theirs claims on

the same grounds that the Court articulates below in this Opinion.

Pro se complaints are to be “liberally construed” and are “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

94 (2007). Although pro se pleadings are to be liberally construed, “pro se litigants still

must allege sufficient facts in their complaints to support a claim.” Owens v. Armstrong,

171 F.Supp.3d 316, 328 (D.N.J. 2016) (quoting Mala v. Crown Bay Marina, Inc., 704

F.3d 239, 245 (3d Cir. 2013)). Thus, pro se litigants are not exempt from complying

with federal pleading standards. See Thakar v. Tan, 372 F.App'x 325, 328 (3d Cir.

2010).

II. FACTUAL BACKGROUND

Plaintiffs bring this action against Republic Bank (“Republic”) and the Cherry

Hill Police Department for violations of Title II of the Civil Rights Act of 1964.

[Docket No. 1 at 2, 7; Docket No. 1-1.]2 They seek $9 million in damages. [Docket

No. 1 at 7; Docket No. 1-1.]

Plaintiffs allege that they were pulled over by two officers of the Cherry Hill

Police Department. [Docket No. 1 at 4.] The pulled-over vehicle belongs to Ms.

Burnett-Williams who commutes to and from work with Ms. Waiters and Mr. Burnett

every day. [Id. at 4–5.] The officers informed Plaintiffs that they had received a report

from a nearby Cherry Hill branch of Republic—across the street from Ms. Waiters’s

place of work—regarding a suspicious vehicle matching the description of Ms.

Burnett-Williams’. [Id.] The officers told Plaintiffs that Republic noticed the vehicle

2 The Court refers to page numbers in the Complaint and Ms. Waiters’s IFP

application according to the electronically stamped CM/ECF header.

parked in its parking lot for the past few days and expressed concerns about Plaintiffs’

planning a bank robbery. [Id. at 5.]

Plaintiffs responded to the officers denying that the vehicle had been parked at

the bank for the past few days. [Id.] They admit, however, that Ms. Waiters has an

account at Republic and that, one day before the traffic stop, Ms. Burnett-Williams

made a stop at the Cherry Hill branch of Republic during the morning commute so

that Ms. Waiters could check her account balance to see if she had sufficient funds to

pay Ms. Burnett-Williams for gas. [Id. at 5.] Ms. Waiters did not have sufficient funds

at that time and asked Ms. Burnett-Williams if she would drive her back to the bank

at lunch, assuming that sufficient funds would be available by then. [Id.] Ms. Burnett-

Williams and Ms. Waiters returned to the bank at lunch time, but Ms. Waiters’ funds

had not been deposited. [Id.] The two women then left the bank. [Id.]

The officers informed Plaintiffs at the conclusion of the stop that they were not

receiving a ticket or being charged with any crime, but that Plaintiffs were not to return

to the Cherry Hill branch of Republic. [Id. at 4.] After the stop, Plaintiffs went to the

Cherry Hill Police Department to request a copy of the officers’ incident report. [Id.]

They received the incident report weeks later and allege that the report contained

several errors including that Plaintiffs repeatedly parked in the Republic lot in the days

preceding the traffic stop.

III. ANALYSIS

Title II of the Civil Rights Act prevents discrimination by places of public

accommodation. It provides that:

“[a]ll persons shall be entitled to the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, and accommodations of

any place of public accommodation [] without discrimination or

segregation on the ground of race, color, religion, or national origin.”

42 U.S.C. § 2000a; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 245 (1964).

A Title II claim requires a plaintiff to demonstrate that she (1) is a member of a

protected class; (2) attempted to contract for services and afford herself the full benefits

and enjoyment of a public accommodation; (3) was denied the full benefits or

enjoyment of a public accommodation; and (4) such services were available to

similarly situated persons outside her protected class who received full benefits or were

treated better. Anderson v. J.P. Morgan Chase Bank, 2024 WL 1363468, at *4 (E.D. Pa.

Mar. 29, 2024) (citing Shumate v. Twin Tier Hosp., LLC, 655 F. Supp. 2d 521, 537 (M.D.

Pa. 2009)). There is no monetary relief available under Title II. The only remedy

available under Title II is a civil action for preventive relief, such as an injunction. See

Livingstone v. Hugo Boss Store, Atl. City, NJ, 2021 WL 3910149, at *5 (D.N.J. Sept. 1,

2021) (citing Three Rivers Center for Independent Living v. Housing Authority of City, 382

F.3d 412, 420 (3d Cir. 2004)). Additionally, before bringing a claim under Title II, a

plaintiff, pursuant to Section 2000a-3(c), “must first notify [a] state or local

government entity authorized to grant relief from the alleged discrimination or to

institute criminal proceedings. 42 U.S.C. § 2000a-3(c). No civil action may be brought

under Title II before thirty days after written notice of the matter to the appropriate

state or local entity.” Livingstone, 2021 WL 3910149, at *5 (citing 42 U.S.C. § 2000a-

3(c)). Compliance with Section 2000a-3(c) is a mandatory jurisdictional prerequisite

and “a Title II plaintiff must demonstrate that he or she has satisfied the notice

requirement before a federal court has subject matter jurisdiction to hear the plaintiff’s

claim.” Livingstone, 2021 WL 3910149, at *5; Shulick v. United Airlines, 2012 WL

315483, at *7 (E.D. Pa. Feb. 2, 2012) (collecting cases).

Ms. Waiters’s claim is without merit and must be dismissed. Neitzke v. Williams,

490 U.S. 319, 328 (1989) (permitting court to dismiss claims proceeding in forma

pauperis where they are “based on an indisputably meritless legal theory”). First,

Section 2000a plainly requires that a Title II plaintiff must be a member of a protected

class. There are no such allegations here. The Complaint generally alleges

discrimination, [see Docket No. 1 at 7], but without mention of any protected

characteristics of any of Ms. Waiters (her co-plaintiffs for that matter). 42 U.S.C. §

2000a(a) (listing “race, color, religion, or national origin” as protected classes under

the statute).

Second, a place of “public accommodation” under Title II is limited to any

establishment either affecting interstate commerce or supported by state action that

falls into one of the following categories:

(1) lodging for transient guests located within a building with more than

five rooms for rent; (2) a facility principally engaged in selling food for

consumption on the premises, including such facilities located within

retail establishments and gasoline stations; (3) any place of exhibition or

entertainment; (4) any establishment located within an establishment

falling into one of the first three categories, and which holds itself out as

serving patrons of that establishment; or (5) any establishment that

contains a covered establishment, and which holds itself out as serving

patrons of that covered establishment.

Akyar v. TD Bank US Holding Co., 2018 WL 4356734, at *5 (S.D.N.Y. Sept. 12, 2018);

see also 42 U.S.C. § 2000a(b). Title II’s list of covered establishments is comprehensive

and “excludes from its coverage those categories of establishments not listed.” Denny

v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 431 (4th Cir. 2006) (“Congress has clearly

delineated those entities that fall within Title II’s ambit, and [courts] are not at liberty

to go beyond what it has plainly enacted.”); Castillo v. Receptionist for Cathy Polcinik,

2016 WL 4124057, at *3 (E.D. Pa. Aug. 3, 2016) (similar). Banks are not enumerated

establishments qualifying as public accommodations under the plain text of Title II.

See Jarvis v. Wells Fargo Bank, N.A., 2022 WL 1663568, at *3 (D. Md. May 25, 2022)

(banks are not places of public accommodation within Title II’s ambit); Pullins v. Bank,

2020 WL 1450560, at *4 (M.D. La. Mar. 25, 2020); Akyar v. TD Bank US Holding Co.,

No. 18-CV-379 (VSB), 2018 WL 4356734, at *5 (S.D.N.Y. Sept. 12, 2018) (collecting

cases). Therefore, Ms. Waiters cannot show that she was denied the full benefits or

enjoyment of a public accommodation because a bank is not a public accommodation

under Title II.

Third, even if banks were places of public accommodation, Ms. Waiters has not

pleaded compliance with Title II’s thirty-day state notice requirement. 42 U.S.C. §

2000a-3(c). Section 2000a-3(c)’s notice requirement applies here because she alleges

Title II discrimination in New Jersey, a state which has an established government

entity to address claims of discrimination. See Livingstone, 2021 WL 3910149, at *6.

Without providing such notice as outlined in the statute, the Court is without

jurisdiction to consider her Title II claim.

Finally, Ms. Waiters’s Title II claim fails based on the monetary relief sought.

Scott v. Police & Fire Fed. Credit Union, 2022 WL 17547279, at *3 (D.N.J. Dec. 9, 2022)

(dismissing pro se plaintiff’s Title II claim with prejudice for seeking compensatory

damages); Livingstone, 2021 WL 3910149, at *6 (same). As explained above, a Title II

plaintiff cannot seek damages under Title II other than for attorney’s fees. See

Livingstone, 2021 WL 3910149, at *5 (citing Newman, 390 U.S. at 400); 42 U.S.C. §

2000a-3. The exclusive means of redress under Title II is non-monetary injunctive

relief. Id. The complaint’s demand for a whopping $9 million in damages for emotional

distress, humiliation, and feelings of anxiety and shame is foreclosed by Title II. Scott,

2022 WL 17547279, at *3 (“Dismissal of Plaintiff's Complaint is warranted because it

asserts a theory of recovery that is not just implausible, but indeed impossible under

Title II.”).

Dismissal of the sole Title II count as to Ms. Waiters will be with prejudice.

Because banks are not places of public accommodation under Title II, amendment of

her claim would be futile. Scott, 2022 WL 17547279, at *3 (dismissal of pro se Title II

count was with prejudice because further amendment would be futile); Livingston, 2021

WL 3910149, at *6 (same).

IV. CONCLUSION

For the reasons stated above, the Court will GRANT Ms. Waiters’ IFP

application, and the Complaint is DISMISSED WITH PREJUDICE as to Ms.

Waiters. The Court will ADMINISTRATIVELY TERMINATE Mr. Burnett and

Ms. Burnet-Williams from this action pending receipt of their applications to proceed

IFP. An appropriate Order follows.

May 2, 2024 s/Renée Marie Bumb

Date RENÉE MARIE BUMB

Chief United States District Judge