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Almendarez v. Pa State Lottery

United States District Court, W.D. Pennsylvania

July 27, 2017

JESSE J. ALMENDAREZ, Plaintiff,
v.
PA STATE LOTTERY and RIVERS CASINO Defendants.

          MEMORANDUM OPINION

          Joy Flowers Conti Chief United States District Judge

         I. Introduction

         Pending before the court are three complaints (Civil Action Nos. 17-587, 17-588, 17-589) filed by Jesse J. Almendarez (“plaintiff”). On May 5, 2017, plaintiff filed two complaints, one against the PA State Lottery at civil action number 17-587, (17-587 ECF No. 1), and the other against Rivers Casino at civil action number 17-588. (17-588 ECF No. 1.) On June 12, 2017, plaintiff filed a third complaint against the PA State Lottery at civil action number 17-589, (17-589 ECF No. 5). All three complaints involve the same kind of claim, namely that the named defendant engaged in a “false advertising” scheme to promote gambling.

         On June 12, 2017, this court granted plaintiff's motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in civil action number 17-589. (17-589 ECF No. 4.) On July 20, 2017, this court granted plaintiff's declarations for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in civil action numbers 17-587 and 17-588. (17-587 ECF No. 5; 17-588 ECF No. 5.) The court is obligated under that same statute to dismiss any case in which the complaint asserts claims that are frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B). For the purpose of the court's review under § 1915(e)(2)(B), the court will address plaintiff's three complaints together. While recognizing that courts have a special obligation to construe a pro se litigant's pleadings liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011), as amended (Sept. 19, 2011), this court nevertheless concludes that plaintiff's complaints are subject to dismissal, without prejudice, under § 1915(e)(2)(B).

         II. Factual and Procedural Background

         Plaintiff alleges in the complaints that the PA State Lottery and Rivers Casino engaged in false advertising schemes to promote gambling. Although plaintiff's complaints are sparse and difficult to interpret, the court concludes that plaintiff alleges the following facts.

         With respect to the PA State Lottery, plaintiff alleges that he sent four “Pittsburgh Steeler Scratch-off tickets, ” each costing $5.00, to the PA State Lottery, and that he did not receive a response. (17-587 ECF No. 1 at 1.) Plaintiff does not state when he purchased these tickets, or that any of them were winning tickets. He does, however, “claim” four signed and framed NFL Pittsburgh Steelers Jerseys and four signed NFL Steelers helmets, with accompanying stands.[1](Id. at 2.)

         Plaintiff also alleges that in or around 2012, he purchased 74 tickets in the PA State Lottery's “$100 a day for life” contest, with each ticket costing one dollar, for a total of $74 dollars' worth of tickets. (17-589 ECF No. 5 at 1.) Plaintiff states that he later learned through “telephone reports” about complaints that this contest involved a scheme whereby there were “5 $1.00 winners and 8 FREE TICKETS.” (Id. at 2-3.)

         With respect to Rivers Casino, plaintiff claims that he won $12, 500 on one slot machine at defendant's casino and $6, 250 on another slot machine at defendant's casino, for a total of $18, 750, and that he never received payment for these winnings. (17-588 ECF No. 1 at 1-2.)

         III. Standard of Review

         Pursuant to 28 U.S.C. §1915(e)(2)(B) and §1915A(a), district courts are statutorily required to review the complaint of a plaintiff proceeding in forma pauperis prior to service of process.[2] In doing so, the court must evaluate whether the complaint is (i) frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §1915(e)(2)(B). If “at any time” the court determines that the action meets any of those criteria, the court “shall dismiss the case.” Id. A complaint is frivolous where it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Adams v. U.S. States Treasury Sec'y, 655 F.App'x 890, 891 (3d Cir. 2016).

         The legal standard for dismissing a complaint for failure to state a claim pursuant to §1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Small v. Herrera, 52 F.Supp.3d 684, 686-87 (D. Del. 2014) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to state a claim under § 1915(e)(2)(B))). A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. at 555-56. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         In this case, plaintiff is proceeding without the benefit of legal counsel. Pro se plaintiffs are held to a less stringent standard than individuals who are represented by counsel. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“[P]ro se litigants are held to a lesser pleading standard than other parties.”). Nevertheless, for Rule 12(b)(6) purposes, “a pro se complaint must still ‘contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Salley v. Sec'y Pa. Dep't of Corr., 565 F. App'x 77, 81 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678); see Thakar v. Tan, 372 F. App'x 325, 328 (3d Cir. 2010) (“[A] litigant is not absolved from complying with Twombly and the federal pleading requirements merely because s/he proceeds pro se.”).

         IV. ...


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