United States District Court, W.D. Pennsylvania
JESSE J. ALMENDAREZ, Plaintiff,
PA STATE LOTTERY and RIVERS CASINO Defendants.
Flowers Conti Chief United States District Judge
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
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).
Factual and Procedural Background
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.
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.(Id. at 2.)
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.)
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.)
Standard of Review
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. 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
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
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.”).