United States District Court, D. Vermont
OPINION AND ORDER GRANTING APPLICATION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND DISMISSING CASE (DOCS. 1,
Geoffrey W. Crawford, Chief Judge United States District
Plaintiff Ivo Skoric seeks to bring this action against
Killington Ski Resort (Killington), alleging that Killington
violated his constitutional rights when it issued a notice
against trespass to him on January 25, 2017. (Doc. 1-2 at 3,
7.) He seeks an injunction as well as compensatory and
punitive damages. (Doc. 1-2 at 12.) Mr. Skoric has filed a
motion to proceed in forma pauperis under 28 U.S.C.
§ 1915 and has submitted an affidavit that makes the
required showing under 28 U.S.C. § 1915(a). See
Docs. 1, 1-1. Accordingly, the request to proceed in
forma pauperis is GRANTED. However, for the reasons
discussed below, the Complaint is DISMISSED.
the in forma pauperis statute, the court conducts an
initial screening of proposed complaints. See 28
U.S.C. § 1915(e)(2). The court is required to read a
self-represented plaintiffs complaint liberally and to
construe it to raise the strongest arguments it suggests.
Harris v. Miller, 818 F.3d 49, 56 (2d Cir. 2016)
(per curiam). However, the court must dismiss a complaint if
it determines that the action fails to state a claim on which
relief can be granted. See 28 U.S.C. §
determining whether a complaint states a claim, the court
must "accept as true all of the allegations contained in
a complaint" and decide whether the complaint states a
claim for relief that is "plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). While "lenity"
is required, self-represented litigants nevertheless must
satisfy the plausibility standard set forth in Iqbal.
Harris v. Mills, 572 F.3d 66, 68, 72 (2d Cir. 2009).
"[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions." Iqbal, 556 U.S. at 678
Factual Allegations and Background
case arises from events that occurred beginning on November
25, 2016, at Killington (Doc. 1-2 at 7), which is a Vermont
ski area located partially on leased state land. Skoric
v. Killington Ski Resort, No. 5:17-cv-183, 2017 WL
4342078, at *1 (D. Vt. Sept. 28, 2017). That Friday morning,
a Killington employee did not allow Plaintiff and his son
Tin, a competitive snowboarder, to ride a Killington gondola
because their "passes did not scan." (Doc. 1-2 at
7.) Plaintiff gave an "irritated response" and then
made a "sarcastic comment" but did not disrupt
operations, leaving the area as other people approached the
gondola. Id. Shortly after the '"incident,
"' Plaintiffs wife, a Killington employee, was
informed by the Killington human resources director that
Plaintiffs dependent season pass would be revoked though she
could keep her job and her son could retain his season pass.
next day, Plaintiff apologized to the ticket checker, and
left messages for the human resources director as well as
other Killington executives. Though he did not discuss the
incident further with any Killington representative,
"three days later, [Plaintiffs] pass appeared
miraculously to be working with no issues." (Doc. 1-2 at
8.) On January 9, 2017, however, Plaintiffs "pass
suddenly scanned as 'inactive.'" Id.
Killington Guest Services informed Plaintiff it was a
mistake. On January 13, 2017, the pass again did not work and
Plaintiffs wife received an email from her supervisor
I wanted to inform you that based on the most recent incident
involving Ivo on 11/25 at the Kl gondola we are indefinitely
revoking his dependent ski pass privileges. The pass was
supposed to be deactivated at that time but due to an
administrative error it was not. He will no longer be
eligible for dependent privileges moving forward. This is
non-negotiable, and there will be no further discussion on
this. He is welcome to purchase a season pass. This will not
effect you or Tin.
Id. at 8.
January 25, 2017, Plaintiff was allowed to purchase a season
pass at a discounted rate. However, a few days later he
received by certified mail a notice against trespass dated
January 25. (Doc. 1-2 at 11, 13.) Plaintiff claims that
Killington allowed him to purchase the pass so they could
"ban [him] as a customer, not as a staff
dependent." (Doc. 1-2 at 11.)
not Plaintiffs first filing in this court regarding the
notice against trespass. In September 2017, Plaintiff filed a
similar complaint under 42 U.S.C. § 1983 alleging that
Killington violated his constitutional rights when it issued
the January 25, 2017 notice against trespass. See
Skoric, 2017 WL 4342078. After allowing Plaintiffs
request to proceed in forma pauperis, the court
dismissed the action under 28 U.S.C. § 1915(e)(2)(B)(ii)
for failure to state a claim. Id. at*3.
Specifically, the court found Plaintiff had not met the
"symbiotic relationship" test in Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961), or
any other avenues for deeming private action to be state
action for purposes of § 1983. Id. at *2-3
though Plaintiff does not purport to bring his action under
42 U.S.C. § 1983, he makes the same claims that his
federal constitutional right to due process under the Fifth
and Fourteenth Amendments has been violated by
Killington's issuance of the January 25, 2017 notice
The Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
provides: "No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law."
U.S. Const, amend. XIV. Generally, "the protections of
the Fourteenth Amendment do not extend to 'private
conduct abridging ...