Clark v. Heritage Hospitality, LLC et al

IN THE UNITED STATES DISTRICT COURT
FORT THE DISTRICT OF NORTH DAKOTA
Joseph Clark, 	)
)
Plaintiff, 	)
) 	ORDER
v. 	)
)
Heritage Hospitality, LLC; 	)
Highmark Lodging, LLC; 	)
DHB Property, LLC; 	)
Dickinson Lodging Group, LLC; 	) 	Case No.: 1:24-cv-00007
Merlin Hotel Group, LLC; 	)
)
Defendants. 	)
Plaintiff Joseph Clark (“Plaintiff”), who is proceeding pro se and in forma pauperis, filed
a complaint under the Americans with Disabilities Act (“ADA”). On February 7, 2024, the court
ordered Plaintiff to file an Amended Complaint or otherwise show cause by March 6, 2024, or the
above-entitled action would be dismissed in its entirety. Plaintiff has not filed an Amended
Complaint or otherwise shown cause. For the reasons discussed below, the court dismisses this
action without prejudice.
I. 	BACKGROUND
Plaintiff Joseph Clark (“Plaintiff”) filed a complaint asserting a violation of the ADA,
naming Heritage Hospitality, LLC, Highmark Lodging, LLC, DHB Property, LLC, Dickinson
Lodging Group, LLC, and Merlin Hotel Group, LLC as Defendants. (Doc. No. 4). In the complaint,
he accused the Defendants of being noncompliant with the ADA by not having lifts for their pools,
and in some instances for their hot tubs. (Id at 2-3.). Plaintiff also filed a motion for leave to
proceed in forma pauperis. (Doc. No. 1).
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On January 11, 2024, the court granted Plaintiff’s motion to proceed in forma pauperis.
(Doc. No. 3). The court also reviewed his complaint under 28 U.S.C. § 1915(e)(2). (Doc. No. 5).
Based on the court’s review of his complaint, the court found Plaintiff failed to establish that he
was disabled within the meaning of the ADA and ordered Plaintiff to show cause or file an
Amended Complaint addressing the deficiencies in his original complaint1 by March 6, 2024. (Id.
at 4-5).
II. 	LAW AND DISCUSSION
On February 7, 2024, the court ordered Plaintiff to file an Amended Complaint or otherwise
show cause by March 6, 2024. The court warned that a failure to timely respond to the court’s
order would result in a dismissal of the action in its entirety. Plaintiff failed to file an Amended
Complaint or otherwise show cause by March 6, 2024.
Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, the court may dismiss an
action for failure to comply with a court order. See FED. R. CIV. P. 41(b); see also Brown v. Frey,
806 F.2d 801, 803 (8th Cir. 1986) (“A district court has the power under FED. R. CIV. P. 41(b) to
dismiss an action for the plaintiff’s failure to comply with any court order and, unless otherwise
specified, such as dismissal operates as an adjudication on the merits.”). Under 28 U.S.C. §
1915(e)(2), the court also has the authority to dismiss a court at any time when it determines the
action fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
Because Plaintiff has not complied with the court’s order to file an Amended complaint or
otherwise show cause and has failed to state as claim on which relief may be granted, the court
shall dismiss this action without prejudice.
1 Plaintiff does not assert he has a disability in his complaint other than stating he “called each hotel listed herein
looking for an accommodating hotel for this plaintiff.” (Doc. No. 4 at 2). Nor does the Plaintiff describe or identify
his disability. See also Doc. No. 5 at 4.
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III. 	CONCLUSION
For the reasons articulated above, Plaintiff has failed to comply with the court’s order and
failed to state a claim entitling him to relief. Accordingly, Plaintiff’s complaint is DISMISSED
without prejudice. The court certifies that an appeal from this dismissal cannot be taken in good
faith.
IT IS SO ORDERED.
Dated this 15th day of March, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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