Opinion
Civil Action No. 15-cv-01414-GPG
08-07-2015
THEODORE FERGUSON, Plaintiff, v. JEREMIAH, Employee, and AREJASH, Store Manager, et al., Defendants.
ORDER OF DISMISSAL
Plaintiffs Theodore Ferguson and Ashley Duckett initiated this action by filing pro se a Complaint, ECF No. 1. The Court dismissed Plaintiff Ashley Duckett on July 7, 2015, for failure to comply with the July 3, 2015 Order to Cure Deficiencies within the time allowed that required her to submit a separate Application to Proceed in District Court Without Prepaying Fees or Costs and signing the Complaint. Plaintiff Theodore Ferguson, however, had signed the Complaint and submitted a proper application to proceed without payment of fees and costs; and as a result he now has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The Court, therefore, will review the merits of the Complaint as the claims pertain to Mr. Ferguson.
The Court must construe the Complaint liberally because Mr. Ferguson is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [the Court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. However, the Court does not act as an advocate for a pro se litigant. See id.
Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the action if Mr. Ferguson's claims are frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). For the reasons stated below, the Court finds Mr. Ferguson's claims are legally frivolous and will dismiss the action.
Mr. Ferguson asserts that his rights under Title III of the Americans with Disabilities Act (ADA) were violated when he was denied entry on June 29, 2015, into the 7/11 store at 820 16th Street in Denver, Colorado, to purchase products or services. Mr. Ferguson contends that he was denied entry by Defendants because he had a service animal with him who is a seizure alert, mobility assistance and PTSD animal and must remain with her handler at all times. Mr. Ferguson further contends that he attempted to reenter the store without the animal but again was denied entry; and as a result he suffered undue stress and the ability to purchase service or goods. Mr. Ferguson seeks money damages
A claim for damages under Title III of the ADA is legally frivolous. Title III of the ADA prohibits discrimination against the disabled in public accommodations. See 42 U.S.C. § 12182(a). However, pursuant to 42 U.S.C. § 12188(a), Mr. Ferguson's "sole remedy for a Title III claim is injunctive relief." Phillips v. Tiona, 508 F. App'x 737, 754 (10th Cir. 2013); see also Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 86 (2d Cir. 2004) ("A private individual may only obtain injunctive relief for violations of a right granted under Title III; he cannot recover damages."). Therefore, the instant action must be dismissed.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Complaint and the action are dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 7th day of August, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court