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Rickmyer v. Jungers

United States District Court, D. Minnesota

January 30, 2015

Peter Rickmyer, Plaintiff,
v.
Michael Jungers, in his individual 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

Peter Rickmyer, 2118 25th Ave. N., Minneapolis, MN 55411, Pro Se.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Steven R. Rau, dated July 14, 2014 [Doc. No. 15]. Plaintiff Peter Rickmyer filed timely Objections to the R&R [Doc. No. 16]. In the R&R, Magistrate Judge Rau addressed Plaintiff's in forma pauperis application ("IFP application") [Doc. No. 2], recommending that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and Rickmyer's IFP application be denied as moot.

According to statute, the Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also Fed.R.Civ.P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review and for the reasons set forth below, the R&R is adopted as modified, by requiring a limited restriction.

I. BACKGROUND

Plaintiff filed a previous lawsuit, Rickmyer v. Walker, involving many of the same facts of this case. (See No. 13-CV-1161 (JRT/SER) ("the Walker case")). In that case, Rickmyer alleged that the defendants violated the Americans with Disabilities Act ("ADA") and his constitutional rights under 42 U.S.C. §§ 1983, 1985, and 1988. (Compl., Walker, No. 13-CV-1161 (JRT/SER) [Doc. No. 1].) Walker involved two separate events, one of which forms the basis for this lawsuit. In Walker, Rickmyer alleged that Minneapolis Police Officers Troy Walker and Bruce Johnson unlawfully deprived him of access to certain parking garages and skyways on May 14, 2013. (Id.) As in this case, Magistrate Judge Rau recommended that the Walker action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim. (R&R, Walker, 13-CV-1161 (JRT/SER) [Doc. No. 29].) After Rickmyer filed a notice of voluntary dismissal on June 7, 2013, the Court dismissed the Walker case without prejudice on June 14, 2013. (Order Dismissing Case, Walker, 13-CV-1161 (JRT/SER) [Doc. No. 32].)

Rickmyer filed this lawsuit on March 6, 2014, alleging violations of the ADA, the Minnesota Human Rights Act ("MHRA"), and 42 U.S.C. §§ 1983, 1985, and 1986 (Compl. [Doc. No. 1]), and he simultaneously filed an IFP application. This suit is brought against Walker and Johnson, ABM Security Officer Michael Jungers, ABM Security Services, Inc., and the City of Minneapolis. Plaintiff alleges that on May 14, 2013, Defendants deprived him of access to certain parking garages, waiting areas, elevators, skyways, and public transportation. He filed an Amended Complaint on March 14, 2014 [Doc. No. 7]. The Amended Complaint was Rickmyer's third pleading concerning the underlying events of May 14, 2013, considering his Complaint in Walker, the original Complaint in this case, and the Amended Complaint.

On April 21, 2014, Magistrate Judge Rau issued an order in which he deferred ruling on Rickmyer's IFP application. Citing 28 U.S.C. § 1915(e)(2)(B)(ii), Magistrate Judge Rau found the complaint fatally defective because Rickmyer did not adequately describe the facts on which his claims were based:

Plaintiff repeatedly alleges that Defendants "trespassed" him because he is disabled. He seems to believe that this assertion is self-explanatory, but it is not. Plaintiff has not adequately explained the specific nature of his alleged disabilities, and he has not described any facts to support his conclusory assertion that Defendants mistreated him because of his alleged disabilities. More significantly, Plaintiff has not adequately explained how Defendants allegedly mistreated him. Plaintiff's anomalous use of the word "trespass" throughout his complaint makes it impossible to understand what Defendants actually did that supposedly violated Plaintiff's rights under the various federal and state laws cited in his complaint.

(Am. Order of 4/21/14 at 2-3 [Doc. No. 12].) Magistrate Judge Rau ordered Rickmyer to submit a new pleading by June 2, 2014 that corrected these deficiencies, warning that if Rickmyer failed to do so, a recommendation of dismissal without prejudice would result. (Id. at 3-4.)

Rickmyer filed the Second Amended Complaint on May 22, 2014 [Doc. No. 13] - his fourth pleading involving the May 14, 2013 alleged incident. Magistrate Judge Rau issued the R&R on July 14, 2014, finding that Rickmyer's amended pleading failed to cure the deficiencies and that Rickmyer therefore failed to state a claim on which relief could be granted. (R&R at 13 [Doc. No. 15].) Moreover, the magistrate judge noted that Rickmyer's voluntary dismissal of the Walker action, followed by the initiation of the instant action, suggested an attempt to manipulate the judicial process. (Id. at 12.)[1] In addition, Magistrate Judge Rau took judicial notice of a standing order regarding Rickmyer in Hennepin County District Court, In re the Matter of Peter Rickmyer, Hennepin Cnty., Minn. (June 19, 2012), in which that court prohibited Rickmyer from filing documents in open cases unless signed by a licensed attorney, and from filing any documents in closed cases unless approved by the chief judge of that court. (Id.) Magistrate Judge Rau noted that "[a]lthough Rickmyer has not reached that level yet in this District, the Court is concerned that his voluntary dismissal of both the Walker case and the JACC case following the magistrate judges' reports and recommendations indicate a lack of respect for the Court's limited resources." (Id. at 12-13.)

In his July 28, 2014 Objections to the R&R, Rickmyer maintains that he tried to address the deficiencies in his pleadings. (Objections at 2 [Doc. No. 16].) He notes that he submitted a Second Amended Complaint in which he attempted to explain the nature of his disability, describe the factual and legal bases for his claims, allege specific facts to support his claim of mistreatment due to disability, and explain the actions or inactions of each Defendant in violation of the law. (Id.) In addition, Rickmyer objects to this Court taking judicial notice of the Hennepin County order, arguing that the Hennepin County ruling was based on fraud. Rickmyer requests an evidentiary hearing to determine whether this Court should acknowledge the Hennepin County order. (Id. at 3-4.) In connection with this request, Rickmyer also moves to supplement the pleadings with various documents related to his litigation in Hennepin County. (Pl.'s Mot. for Leave of Court to Supplement the Pleadings [Doc. No. 17].) As to the sufficiency of his pleadings in this action, after filing his Objections to the R&R, Rickmyer submitted a Proposed Third Amended Complaint - his fifth pleading with respect to the claims at issue - for which he seeks the Court's leave to file. (Pl.'s Mot. for Leave to Supplement the Pleadings [Doc. No. 18].)

II. DISCUSSION

As the R&R correctly states, if an IFP applicant files a complaint that fails to state a cause of action upon which relief may be granted, the Court may dismiss the action. 28 U.S.C. § 1915(e)(2)(B)(ii); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (per curiam). This Court has noted that because the language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6), the Court applies Rule 12(b)(6) standards when evaluating dismissals under § 1915(e)(2)(B)(ii). Washington v. Vaghn, No. 14-CV-525 (JRT/JSM), 2014 WL 3687240, at *3-4 (D. Minn. July 24, 2014) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); Atkinson, 91 F.3d at 1128-29 (applying standard of review for failure to state a claim under Rule 12(b)(6) applicable at the time to a dismissal under 28 U.S.C. § 1915(e)(2)(B)(i)). When evaluating a complaint under Rule 12(b)(6), the Court assumes the facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). While a pro se complaint must be liberally construed, Atkinson, 91 F.3d at 1129 (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain "detailed factual allegations, " it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " will not pass muster. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556.

The R&R addressed the adequacy of Rickmyer's claims in the Second Amended Complaint [Doc. No. 13]. Because Rickmyer has attempted to correct the pleading deficiencies in his Proposed Third Amended Complaint [Doc. No. 18-1], the Court examines that pleading to determine whether it survives the Rule 12 standard of review.

The Proposed Third Amended Complaint primarily differs from the Second Amended Complaint in two respects: (1) Plaintiff has added four paragraphs asserting additional facts concerning Defendants' alleged unlawful actions (Proposed Third Am. Compl. ¶¶ 3-6 [Doc. No. 18-1]); and (2) Plaintiff has added three paragraphs noting three occasions on which he entered Ramps A, B, and C on July 10 and 14, 2014 (id. ¶¶ 30-32).[2] As to the first category of additional allegations, Plaintiff asserts:

3. It is alleged that Defendants Jungers, Walker and Johnson unlawfully discriminated against Plaintiff Peter Rickmyer on May 14, 2013 by preventing plaintiff from accessing the escalator and prohibiting me from the skyway in the 7th Street Garage, by using his expression caused by pain due to degenerated disks in lower lumbar and cervical, further used my disability in communication to pretend Rickmyer was insulting them.
4. It is alleged that Defendants Jungers, Walker and Johnson actions [sic] humiliated me by mocking, refused me access to the waiting area for public transportation at 5th and 7th [S]treet [G]arages, escalator to skyway and skyway adjacent to A, B and C garages. Further, forced me to depart from public transportation on Twins Way and 7th Street and 3rd and Washington Avenues North, as a result it was unequal and substandard service to me as compared to other similarly situated customers, civilians and pedestrians.
5. It is alleged that Defendant Walker and Johnson set out to harm me on May 14, 2013 because Plaintiff Peter Rickmyer successfully negotiated a settlement agreement on with [sic] City of Minneapolis and their boss Michael Martin and their fellow officers Newman, Pucely, Olson, and Bartholomew on or about February 13, 2013 and Judge Bush signed off on it April 13, 2013....
6. It is alleged that Defendant Jungers directed Minneapolis Police Officers Walker and Johnson to prohibit Rickmyer from entering the A, B, and C Garages and adjacent Skyways [s]o to prevent Plaintiff from observing the ADA violations in A, B, and C Garages and therefore preventing Plaintiff from exercising "Protected Speech".

(Id. ¶¶ 3-6.)

As to the second category of additional factual allegations in the Proposed Third Amended Complaint, ...


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