ALLENTOWN – A federal court has ruled that an Easton man who filed a civil rights lawsuit against Wal-Mart, claiming they refused him service and then later sent police officers to his home, will have most of his case dismissed – but also have the opportunity to amend his allegations under Title II of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 (ADA).

An Aug. 29 order from U.S. District Court Judge Joseph F. Leeson Jr. dismissed the case of plaintiff Ricardo Cruz, but also offered the opportunity for Cruz to further amend those claims.

Cruz filed a lawsuit on Sept. 1, 2016 in the U.S. District Court for the Eastern District of Pennsylvania against Wal-Mart Super Center, pursuant to alleged violations of Titles II and X of the Civil Rights Act of 1964, the ADA and Amendments Four, Five, Eight and Fourteen of the U.S. Constitution.

Per the complaint, Cruz sent photographs via the internet to a Wal-Mart store in Easton to be printed. When he arrived in person to pick up the prints, Cruz was told by a manager that the machine was “down.” The manager of the photo processing department then asked Cruz for identification and took down his contact information. After Cruz left, the manager called the police and provided them with Cruz’s contact information. Later that day, Cruz’s wife and daughter went to the store see if the photos were ready, but upon arrival, they were “taken to a room by police” where they were interrogated for an hour.

Cruz claims that officers then “raided his home with shotguns”, supposedly did not show their badges, state their names, or present a warrant or court order of any kind, in addition to allegedly nearly killing his two emotional support dogs and nearly shooting his son. Cruz claims that he is “100% disabled with bipolar schizo-affective disorder and PTSD,” and that he has a severe issue with his left shoulder, which was dislocated when the police handcuffed him.

Cruz sought $1 million in damages from Wal-Mart, which led the retail giant to file a motion to dismiss his suit for failure to properly serve his complaint, or substantiate his claims.

The District Court, for the most part, sided with Wal-Mart.

“Cruz’s claim under Title II fails for two reasons. First, his complaint asserts no allegation that the Wal-Mart in question contained within it one of the named public accommodations from section 2000a(b). Second, even if Cruz had alleged facts establishing the presence of a food vendor within Wal-Mart, his allegations would still be insufficient to state a claim,” Leeson said.

Cruz’s complaint makes no reference to having been denied or given unequal service due to his membership in one of the protected classes of race, color, religion or national origin, according to Leeson.

“While his claim is not sufficient as currently presented, the Court cannot say for certain that Cruz could not allege additional facts that may establish a valid claim. Accordingly, he will be afforded leave to file an amended complaint to address the above deficiencies,” Leeson said.

Leeson further found Cruz’s constitutional claims were dismissed with prejudice, because Wal-Mart was not a state actor – but dismissed his ADA claim without prejudice in order to provide him with an opportunity to amend it, since the section of the ADA cited in Cruz’s claim doesn’t allow for pursuit of monetary damages.

Cruz’s claim under the Unfair Trade Practices and Consumer Protection Law (UTPCPL) was also dismissed with prejudice since he “has not demonstrated that he in any way suffered an ascertainable loss as a result of any “justifiable reliance.”

As for the service of Cruz’s complaint, Leeson determined it would not be dismissed on that basis.

“Cruz has failed to state a claim upon which relief can be granted, but he will be afforded leave to amend his Title II and ADA claims. Additionally, although Wal-Mart is correct that it was not properly served, the matter will not be dismissed on this basis. Rather, the Clerk of Court will be directed to send a waiver of service request on Cruz’s behalf, which counsel for Wal-Mart has agreed to sign,” Leeson concluded.

The defendant was represented by Patrick J. McDonnell of McDonnell & Associates, in Cherry Hill, N.J.

U.S. District Court for the Eastern District of Pennsylvania case 5:16-cv-03665

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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