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Skoric v. Killington Ski Resort

United States District Court, D. Vermont

May 9, 2019

IVO SKORIC, Plaintiff,
v.
KILLINGTON SKI RESORT, Defendant.

          OPINION AND ORDER GRANTING APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE (DOCS. 1, 1-2)

          Geoffrey W. Crawford, Chief Judge United States District Court

         Self-represented 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.

         Under 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. § 1915(e)(2)(B)(ii).

         In 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

         I. Factual Allegations and Background

         This 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.

         The 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 stating:

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.

         On 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.)[1] 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.)

         This is 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 & n.3.

         Here, 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 against trespass.

         II. The Fourteenth Amendment

         The 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 ...


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