CASE 0:14-cv-00614-SRN-SER Document 15 Filed 07/14/14 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Peter Rickmyer, Case No. 14-cv-614 (SRN/SER) Plaintiff, v. REPORT & RECOMMENDATION Michael Jungers, in his individual capacity and official capacity with ABM Security Services, Inc.; Troy Walker, in his individual capacity, and in his capacity as a Minneapolis Police Officer; Bruce Johnson, in his individual capacity, and in his capacity as a Minneapolis Police Officer; ABM Security Services, Inc., a/k/a/ American Building Maintenance Industries, Inc.; and City of Minneapolis, Defendants. STEVEN E. RAU, United States Magistrate Judge This matter is before the undersigned on Plaintiff Peter Rickmyer’s (“Rickmyer”) application for leave to proceed in forma pauperis (“IFP Application”), pursuant to 28 U.S.C. § 1915 [Doc. No. 2], and Rickmyer’s Motion to Appoint Counsel [Doc. No. 3].1 This matter has been referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court recommends that that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and that Rickmyer’s IFP Application and Motion to Appoint Counsel be denied as moot. 1 The undersigned recused himself from another, unrelated case initiated by Rickmyer. See Order of Recusal Dated Sept. 13, 2013, Rickmyer v. Browne, No. 13-cv-559 (SRN/LIB) [Doc. No. 152]. Because the recusal was based on a defendant, David Schooler, who is not a party to this case, the recusal has no bearing on the instant case. CASE 0:14-cv-00614-SRN-SER Document 15 Filed 07/14/14 Page 2 of 14 I. BACKGROUND A. Factual Background Rickmyer alleges that he is physically disabled and has “limited language abilities due to cognitive deficits.” (Second Am. Compl.) [Doc. No. 13 ¶ 16]. Rickmyer states that he asked Defendant Michael Jungers (“Jungers”), who is an employee of Defendant ABM Security Services, Inc. (“ABM”), to put in an automated door near the bus stop and to put a handicap parking spot on the street level of the 7th Street Garage. (Second Am. Compl. ¶¶ 9, 17). Jungers was “furious” and conspired with Defendants Troy Walker (“Walker”) and Bruce Johnson (“Johnson”) to “trespass” Rickmyer from the 5th and 7th Street Parking Garages, connected skyways, and public transportation on May 14, 2013. (Id. ¶¶ 19, 21). At that time, Walker and Johnson were Minneapolis Police Officers working for ABM. (Id. ¶¶ 8–11, 15). By “trespass,” Rickmyer appears to allege that Johnson “moved [Rickmyer’s] body sideways” with his finger and told Rickmyer he “could not enter and or be on the property of [the] 7th and 5th Street [G]arages, skyways adjacent to the garages for one year.” (Id. ¶ 25). Rickmyer alleges other individuals, who did not appear to have any disabilities, observed this incident, and were treated more favorably by the City of Minneapolis (“Minneapolis”) and ABM employees. (Id. ¶ 26). Rickmyer alleges the reasons for “trespassing” him were a pretext for discrimination and retaliation. (Id. ¶ 27). Rickmyer also alleges that Walker and Johnson “were furious” that Rickmyer sued their boss, Mike Martin (“Martin”) and others; that Martin advised Rickmyer that no supervisor would take adverse action towards him; that Walker filed a false police report and a false supplemental police report; that the Minneapolis Police Department failed to properly train Jungers to supervise Walker and Johnson; that the Minneapolis Police Department failed to properly 2 CASE 0:14-cv-00614-SRN-SER Document 15 Filed 07/14/14 Page 3 of 14 supervise Jungers; that Minneapolis failed to properly supervise Walker, Johnson, and Jungers; and that ABM failed to request that Minneapolis properly train Jungers and failed to properly supervise Jungers, Walker, and Johnson. (Id. ¶¶ 20, 28–32). As a result, Rickmyer alleges that his liberty was restrained for one year, he “experienced discrimination,” and he suffered shame, humiliation, embarrassment, physical pain, anguish, and diminished quality and enjoyment of life. (Id. ¶¶ 26, 33–36); see also (id. ¶¶ 37–38). Rickmyer makes claims under the following federal and Minnesota statutes: Count 1: 42 U.S.C. § 12131 et seq. (ADA Public Accommodations Discrimination);2 Count 2: 42 U.S.C. § 12181 et seq. (ADA Public Accommodations Discrimination); Count 3: 42 U.S.C. § 12203 (Retaliation); Count 4: Minn. Stat. § 363A.11 (MHRA Public Accommodations Discrimination);3 Count 5: 42 U.S.C. § 1983 (Against All Individual Defendants); Count 6: 42 U.S.C. § 1985 (Against All Individual Defendants); Count 7: 42 U.S.C. § 1986 (Against All Individual Defendants); Count 8: 42 U.S.C. § 1983, Failure to Prevent Constitutional Violation (Against All Individual Defendants); Count 9: Direct and Vicarious Liability of ABM; Count 10: Direct and Vicarious Liability of Minneapolis; and Count 11: Civil Rights Violations Against Minneapolis. (Id. ¶¶ 40–127).4 B. Procedural Background The facts of this case were part of another civil case filed by Rickmyer. See Rickmyer v. Walker, No. 13-cv-1161 (JRT/SER) (the “Walker case”). In the Walker case, Rickmyer alleged Johnson and Walker violated the ADA and his constitutional rights under 42 U.S.C. §§ 1983, 1985, and 1988, and that they retaliated against him under the ADA. Compl., Rickmyer v. 2 “ADA” refers to the Americans with Disabilities Act of 1990. 3 “MHRA” refers to the Minnesota Human Rights Act. 4 The titles in parentheses correspond to Rickmyer’s headings. See (Second Am. Compl. ¶¶ 40–127). 3 CASE 0:14-cv-00614-SRN-SER Document 15 Filed 07/14/14 Page 4 of 14 Walker, No. 13-cv-1161 (JRT/SER) [Doc. No. 1]. The Court recommended dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) in connection with its recommendation to deny Rickmyer’s motion for a temporary restraining order. See Report & Recommendation Dated June 3, 2013 (“Walker R&R”), Rickmyer v. Walker, No. 13-cv-1161 (JRT/SER) [Doc. No. 29]. The Honorable John R. Tunheim dismissed the Walker case without prejudice following Rickmyer’s notice of voluntary dismissal. See Notice of Dismissal, Rickmyer v. Walker, No. 13-cv-1161 (JRT/SER) [Doc. No. 30]; Order of Dismissal, Rickmyer v. Walker, No. 13-cv-1161 (JRT/SER) [Doc. No. 32]. Rickmyer initiated the instant lawsuit on March 6, 2014, by filing a complaint and exhibit, IFP Application, and Motion to Appoint Counsel. (Compl.) [Doc. No. 1]; (IFP Application); (Mot. to Appoint Counsel). On March 14, 2014, Rickmyer filed an amended complaint and exhibit. (Am. Compl.) [Doc. No. 7].5 The Court found the Amended Complaint failed to state a claim on which relief could be granted in violation of 28 U.S.C. § 1915(e)(2)(B)(ii), and ordered Rickmyer to file a second amended complaint on or before June 2, 2014, at which time the Court would reconsider Rickmyer’s IFP Application. See (Am. Order Dated Apr. 21, 2014) [Doc. No. 12]. Rickmyer filed his second amended complaint on May 22, 2014. (Second Am. Compl.). In his Second Amended Complaint, Rickmyer asserts Defendants violated his constitutional rights and various provisions of the Americans with Disabilities Act (“ADA”). See (Second Am. Compl.). These claims are similar to the claims made in the Walker case and 5 Rickmyer attempted to withdraw his Complaint and the accompanying exhibit via letter to the Clerk’s Office. (Letter to Clerk’s Office) [Doc. No. 6]. The Clerk’s Office advised Rickmyer that it could not withdraw the Complaint and exhibit as Rickmyer requested. (Letter from Clerk’s Office to Rickmyer) [Doc. No. 10]. The Clerk’s Office advised Rickmyer to file a motion or consult the Federal Rules of Civil Procedure and the Local Rules. (Id.). Rickmyer filed an Amended Complaint, but took no additional action in response. Regardless, the Amended Complaint superseded the Complaint. See In re Wireless Telephone Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005) (citation omitted). 4 CASE 0:14-cv-00614-SRN-SER Document 15 Filed 07/14/14 Page 5 of 14 involve at least some of the facts described in the Walker case. Compare (Second Am. Compl.) with Compl., Rickmyer v. Walker, No. 13-cv-1161 (JRT/SER) [Doc. No. 1].6 In other words, Rickmyer has now filed four complaints based on the same set of facts. See Walker R&R; (Compl.); (Am. Compl.); (Second Am. Compl.). The Court now reviews the Second Amended Complaint to determine if it states a claim on which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). II. DISCUSSION A. Legal Standard An IFP application will be denied, and the action will be dismissed, if the IFP applicant has filed a complaint that fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (per curiam). To state an actionable claim for relief, a plaintiff must allege a set of historical facts, which, if proven true, would entitle the plaintiff to some redress under some cognizable legal theory. See Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980) (stating that although federal courts must “view pro se pleadings liberally, such pleadings may not be merely conclusory: the complaint must allege facts, which if true, state a claim as a matter of law.”). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). B. Analysis 1. Disability Claims Rickmyer makes several claims that he was discriminated against and retaliated against in violation of the ADA.