Illinois League of Advocates for the Developmental et al v. Illinois Department of Human Services et al

Filing 98

MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 6/20/2013:Judicial staff mailed notice(gl, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ILLINOIS LEAGUE OF ADVOCATES
FOR THE DEVELOPMENTALLY,
DISABLED, et al.
Plaintiffs,
v.
PATRICK QUINN, et al.
Defendants.

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Case No. 13 C 1300
Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Court Judge:
Presently before us is Plaintiffs’ motion for preliminary injunction. (Dkt. No. 8.) Based
on the parties’ briefs, their supporting affidavits and exhibits, and our review of the Second
Amended Complaint (“SAC”), we conclude that we have subject matter jurisdiction only over
the claims Plaintiffs brought on behalf of the current and former residents of the Murray
Developmental Center (“Murray”) and the Jacksonville Developmental Center (“Jacksonville”),
related to their allegedly harmful transfers out of those facilities. The claims premised on the
future closures of other State Operated Development Centers (“SODCs”) in Illinois are not ripe.
We dismiss those claims without prejudice, for the reasons stated below. We also briefly
comment on the nature of the claims brought under the Americans with Disabilities Act.
BACKGROUND
SODCs are state operated residential facilities that provide care and services to severely
developmentally disabled adults in Illinois. (Mem. at 2–3.) According to Plaintiffs, Defendants

have begun to implement a plan to close down all SODCs in the state and transfer the residents
to Community Integrated Living Arrangements (“CILAs”), which Plaintiffs claim are inadequate
to suit the needs of many SODC residents. (Id. at 4–6.) One SODC, Jacksonville, was closed
December 3, 2012, and another, Murray, is currently in the process of transferring residents in
preparation for its closure on October 31, 2012.1 (Id. at 6–7; SAC ¶ 52.)
Plaintiffs seek to represent a class comprised of all Illinois SODC residents since
January 1, 2011 who oppose placement in a CILA. (SAC ¶ 42.) Plaintiffs claim that Defendants
are conducting the transfers in a manner the fails to properly assess the needs of the residents and
forces them into CILAs under harmful and dangerous circumstances. (Id. ¶ 59; Mem. at 4–6.)
They also allege that Defendants’ plan to close all SODCs discriminates against the proposed
class because “it targets developmental disabilities for greater reduction in funding than other
disabilities. It also discriminates against [the proposed class] because it eliminates an entire
category of service, the one that cares for the most severely challenged persons and effectively
withdraws treatment and care for them with no equivalent replacement.” (Mem. at 11–12.)
Plaintiffs filed their motion for preliminary injunction on February 27, 2013, which is scheduled
to be heard on July 23, 2013. (Dkt. Nos. 8, 89.)
Although we will touch briefly on a substantive issue, this order primarily addresses our
jurisdiction over Plaintiffs’ claims with respect to the issue of ripeness. “Jurisdiction is the
power to declare law and without it the federal courts cannot proceed. Accordingly, not only

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Pursuant to our Temporary Restraining Order dated June 12, 2013 (Dkt. No. 90),
Defendants have stopped transferring Murray residents while the motion for preliminary
injunction is pending.
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may the federal courts police subject matter jurisdiction sua sponte, they must.” Wernsing v.
Thompson, 423 F.3d 732, 743 (7th Cir. 2005).
I.

RIPENESS
“The doctrine of ripeness focuses on the conduct of the defendant to determine whether

the defendants actions have harmed, are harming, or are about to harm the plaintiff.” Teva
Pharm. USA, Inc. v. Novartis Pharm. Corp., 482 F.3d 1330, 1337 (Fed. Cir. 2007); Pfizer Inc. v.
Apotex Inc., 726 F. Supp. 2d 921, 933 (N.D. Ill. 2010). It is well established that “one does not
have to await the consummation of threatened injury to obtain preventive relief. If the injury is
certainly impending, that is enough.” Pfizer, 726 F. Supp. 2d at 933 (quoting Blanchette v.
Conn. Gen. Ins. Corps., 419 U.S. 102, 140, 95 S. Ct. 335, 357 (1974)). But a claim premised on
future harm is not ripe “if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Harris v. Quinn, 656 F.3d 692, 700 (7th Cir. 2011).
Plaintiffs’ claims in this case are based on two types of harm. The first type of harm
arises from the transfers of SODC residents into CILAs that are not equipped to properly care for
them. The second type of harm is the discrimination that Plaintiffs allegedly face because of
Defendants’ decision to close all SODCs in Illinois.
A.

Claims arising out of harmful transfers

Defendants do not dispute that Murray is closing and that they will continue to transfer
Murray residents to CILAs. (Resp. at 2–3.) Neither do they dispute that they have already
closed Jacksonville and transferred at least some of those residents to CILAs. (Id.) Plaintiffs’
allegations in the SAC and motion for preliminary injunction, as well as their supporting

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affidavits, point to specific circumstances underlying their claim that these transfers are harmful
to residents who are not suited to live outside of an SODC. (Mem. at 5–6; Reply, Ex. A–D.)
We make no determination at this time regarding the merits of any claim, but based on
the materials before us, we conclude that the harms arising from the future transfers of Murray
residents are not hypothetical or speculative. Absent the present lawsuit, the transfers from
Murray certainly will continue. Plaintiffs have offered sufficient allegations and affidavit
testimony to establish, solely for the purposes of determining jurisdiction, that the transfers will
result in harm to at least some of the residents. Accordingly, we hold the claims of current and
former Murray and Jacksonville residents related to their past or impending transfers are ripe for
judicial review.
With respect to the residents of other SODCs, however, claims premised on future
harmful transfers are not yet ripe. “Inquiries into ripeness generally address two factors: first,
whether the relevant issues are sufficiently focused so as to permit judicial resolution without
further factual development; and, second, whether the parties would suffer any hardship by the
postponement of judicial action.” Triple G Landfills, Inc. v. Bd. of Comm’rs of Fountain Cnty.,
Ind., 977 F.2d 287, 288–89 (7th Cir. 1992); Medline Indus., Inc. v. Ram Med., Inc., 892 F. Supp.
2d 957, 963 (N.D. Ill. 2012). Neither factor favors the exercise of jurisdiction over the claims
related to future SODC closures.
The harms arising from the past and impending transfers of Murray and Jacksonville
residents are very fact-specific. They depend on the details of the Defendants’ assessment
process, the circumstances of the specific CILAs receiving the residents, and needs of the
individual residents. See, e.g., Reply, Ex. C–D (describing the particular needs of the affiant’s

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relatives at Murray, and the specific risks of community placement for those individuals). We
cannot conclude without further factual development that the harms arising from the particular
circumstances at Murray and Jacksonville will necessarily arise as other SODCs close. Until the
particulars of the transfer process at the other SODCs become more evident, there is no way for
us to know what harms, if any, those residents face. Under these circumstances, any decision we
could make with respect to those future transfers would be no more than an advisory opinion
dictating to the State how to proceed. Furthermore, postponing judicial action will not impose
any hardship on the residents of the other SODCs. These facilities are not currently closing, and
the residents are not at immediate risk of transfer. (Resp. at 5.) No judicial action is necessary
to protect their interests at this time.
Thus, the claims of residents in the other SODCs related to their possible future transfers
are not ripe, and we therefore lack jurisdiction over those claims.
B.

The discriminatory elimination of all SODCs

The second type of harm underlying Plaintiffs’ claims is the discrimination Plaintiffs
allegedly face as a result of the closure of all SODCs. This alleged discrimination is
hypothetical and speculative, however, because “it rests upon contingent future events that may
not occur as anticipated, or indeed may not occur at all.” Harris, 656 F.3d at 700.
The parties dispute whether Defendants actually plan to close all of the SODCs.
Plaintiffs have submitted affidavits from two Murray employees testifying that they attended a
meeting at which Michael Gelder, a senior advisor to Governor Quinn, stated that Defendants are
planning to close all of the SODCs in Illinois. (Reply, Exs. A and B.) Plaintiffs have also
submitted affidavits from two parents of residents at Murray, who testify that state officials have

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told them that all SODCs will close. (Id., Exs. C and D.) Additionally, Plaintiffs submit a
document entitled “Governor Quinn’s Rebalancing Initiative—November 2011.” (Id., Ex. E.)
According to that document, Defendants “will reduce the number of residents served by
[SODCs] by at least 600 by the end of FY 14. This will permit [Defendants] to close up to four
facilities in the next 2.5 years.” (Id.) In response, Defendants submit the testimony of
Defendant Kevin Casey, the Director of the Division of Developmental Disabilities at the Illinois
Department of Human Services, who is responsible for overseeing transfers of SODC residents
to CILAs. (Resp., Ex A ¶¶ 1–2.) Mr. Casey states that other than Murray, “[n]o other SODC
has been slated for closure to date. I am not aware of any plan to close every SODC in the State
of Illinois.” (Id. ¶ 19.)
With this evidence before us2, we hold that the closure of all SODCs in the State of
Illinois is speculative at this point. Assuming for the present purposes that the document
submitted by Plaintiffs is an accurate description of Defendants’ intentions, it shows that the
State only plans to close “up to four facilities” by the end 2014. And while we do not doubt the
veracity of Plaintiffs’ affidavits, we do not believe that the statements described therein mean
that the closure of all SODCs in Illinois is even close to certain. The statements of government
officials are not necessarily true predictors of their future behavior. Even if Defendants do
presently intend to close the last SODCs in the state sometime after 2014, which they dispute,
2

“It is proper for the district court to look beyond the jurisdictional allegations in the
complaint and to view whatever evidence has been submitted in determining whether subject
matter jurisdiction exists.” Roman v. U.S. Postal Serv., 821 F.2d 382, 385 (7th Cir. 1987); see
also Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009).

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their ability to carry out the closures depends on too many unforeseeable factors—shifting
political considerations, economic factors, electoral results, and ongoing policy reassessments
over the next two or three years—for us to conclude at this time that the alleged harm is
imminent.
Plaintiffs urge us to consider Sierra Club v. Franklin County Power of Illinois, LLC,
where the plaintiff brought a claim based in part on the future health and environmental harms
posed by the construction of a coal power plant. 546 F.3d 918, 925–26 (7th Cir. 2008). In that
case, the Seventh Circuit held that the harm was not speculative, because construction of the
power plant was already underway and the defendants had unequivocally stated their intention to
complete construction. Id. at 926. Plaintiffs argue that the statements of the government
officials here create the same level of certainty regarding future harm as the statements of the
defendants in Sierra Club. (Reply at 4.) But while the defendants in Sierra Club did not dispute
their intention to complete construction of the power plant, Defendants here do dispute their
intention to close all SODCs. And the only public statement we have seen from Defendants is
the Rebalancing Initiative, describing a plan to close four SODCs by 2014. (Reply Ex. E.) This
document undercuts any statements that government officials made privately to Murray staff and
family. Therefore, the possibility of harm in this case is decidedly more tenuous than the future
harm alleged in Sierra Club.
We find this case more analogous to the situation facing the Eleventh Circuit in
Association for Children for Enforcement of Support, Inc. v. Conger, 899 F.2d 1164 (11th Cir.
1990). In that case, a state-court judge privately informed the plaintiffs, a child-support
advocacy group, that he would no longer allow observers in court during child-support hearings.

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Id. at 1165. The plaintiffs sued, claiming that the judge’s policy violated their First and
Fourteenth Amendment rights. Id. At the time of the lawsuit, however, the judge had not
actually excluded the plaintiffs from any hearing. The court found that “this is plainly the type
of hypothetical case we should avoid deciding.” Id. at 1166. It explained that “we do not
generally decide cases based on a party’s predicted conduct. Of course, if the injury is certainly
impending, that is enough. In this case, however, we are faced only with an unofficial ‘policy’
announced in an informal setting.” Id.
Similarly here the statements on which Plaintiffs rely are too informal to amount to an
official, enforceable government policy that might give rise to imminent future harm. The State
has not taken any concrete steps to close any SODCs beyond the four mentioned in the
Rebalancing Initiative, or publically announced official plans to do so. Under these
circumstances, claims based on the harms caused by the elimination of all SODCs are not yet
ripe for judicial review.
II.

TITLE II CLAIMS
We turn now to briefly address the nature of the claims brought by Plaintiffs under

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132.3 Plaintiffs contend that
Defendants’ plan violates the ADA because it targets the developmentally disabled residents of
SODCs for greater reductions in funding than those faced by other disabled individuals. (SAC
¶¶ 65, 78; Mem. at 11–13.) According to Plaintiffs, the reduction in funding prevents the

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“In view of the similarities between the relevant provisions of the ADA and the
Rehabilitation Act and their implementing regulations, courts construe and apply them in a
consistent manner.” Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir.
2004); see, e.g., 29 U.S.C. § 794(a). Accordingly, this discussion applies equally to Plaintiffs’
Rehabilitation Act claims, asserted in Count II of the SAC.
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potential class members from receiving services that are as effective as those offered other
disabled individuals and deprives them of the right to live in the most integrated setting
appropriate for their needs. (SAC ¶¶ 65, 78; Mem. at 11–13.)
In support of their claims, Plaintiffs cite to the Supreme Court’s decision in Olmstead v.
L.C. ex rel. Zimring, which held that Title II requires states to provide community-based
treatment for disabled persons, as opposed to institutionalization, under specified circumstances.
527 U.S. 581, 587, 597, 601–07, 119 S. Ct. 2276, 2181, 2185, 2187–90 (1999). In so holding,
the Supreme Court explained that “[u]njustified isolation . . . is properly regarded as
discrimination based on disability.” Id. at 597, 119 S. Ct. at 2187. The court acknowledged that
integrated placement might never be appropriate for some individuals and, moreover, that the
ADA should not be read to require “States to phase out institutions, placing patients in need of
close care at risk.” Id. at 605, 119 S. Ct. at 2189. The court further explained that a state’s
obligation to provide integrated care for qualified, consenting individuals “is not boundless” and
may be curtailed if the state shows that the requested modification would entail a fundamental
alteration of its services. Id. at 603–06, 119 S. Ct. at 2188–90.
Although some of the general principles set forth in Olmstead are relevant to the present
matter, we find that this is not an Olmstead case. Plaintiffs do not claim they have been or will
be deprived of placement in a community living environment—quite the contrary. They oppose
such placement and, thus, do not fall within Olmstead’s purview. Id. at 602–07, 119 S. Ct. at
2187–90 (holding that a state’s duty arises only where eligible disabled individuals “do not
oppose such treatment”). Unjustified isolation constitutes discrimination under the ADA, but—
based on our close reading of Olmstead and the few relevant authorities—“it does not follow

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from Olmstead that the converse is true.”4 Richard S. v. Dep’t of Developmental Servs. of the
State of Cal., No. 97 C 219, 2000 WL 35944246, at *3 (C.D. Cal. Mar. 27, 2000); Richard C. ex
rel. Kathy B. v. Houstoun, 196 F.R.D. 288, 292 (W.D. Pa. 1999) (“[I]t does not logically follow
that institutionalization is required if any one of the three Olmstead criteria is not met.”); Black
v. Dep’t of Mental Health, 83 Cal. App. 4th 739, 753–55, 100 Cal. Rptr. 2d 39, 48–50 (Cal. Ct.
App. 2000) (placement of unqualified disabled man in community setting without guardian’s
consent “might have been medically improper” but “did not violate the integration mandate”).
With that in mind, we turn to consideration of how Plaintiffs’ claims fit under Title II.
The SAC does not specify the type of Title II claims asserted by Plaintiffs, but there are three
possible avenues. “A Title II claim under the ADA ‘may be established by evidence that (1) the
defendant intentionally acted on the basis of disability, (2) the defendant refused to provide a
reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled people.’”
Wis. Comm. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006) (quoting
Washington v. Ind. High School Athletic Assoc., 181 F.3d 840, 847 (7th Cir. 1999)). In
preparation for the hearing, we admonish the parties to tailor their presentations on the ADA and
Rehabilitation Act claims to the elements of—and any available defenses to—these theories. If
4

Two federal circuit courts of appeal have declined to address the specific question of
whether disabled individuals have a cognizable right to continued institutionalization. Ligas ex
rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007) (assuming, without deciding, that
proposed intervenors had a legal interest in their continued institutionalization); Benjamin ex rel.
Yock v. Dep’t of Public Welfare of the Commonwealth of Pa., 432 F. App’x 94, 98 (3d Cir. 2011)
(denying intervention motion at the merits stage without reaching the question of whether the
proposed intervenors “have a legally enforceable right to remain in the institution where they
currently reside”); see also Benjamin ex rel. Yock v. Dep’t of Public Welfare of the
Commonwealth of Pa., 701 F.3d 938, 954–57 (3d Cir. 2012) (allowing disabled individuals
opposed to community placement to intervene because the terms of a settlement agreement could
lead to their integration in the future, giving them a sufficient interest in the remedy phase of the
litigation).
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Plaintiffs do not intend to pursue each of the three Title II theories, they should inform
Defendants and the court as soon as possible.
CONCLUSION
For the reasons stated above, we hold that our jurisdiction in this case extends only to the
claims Plaintiffs brought on behalf of the current and former residents of the Murray and
Jacksonville SODCs, related to their allegedly harmful transfers out of those facilities. We
dismiss without prejudice all of Plaintiffs’ claims premised on the future closure of other SODCs
in Illinois. The evidence of the parties presented at the July 23, 2013 hearing on the preliminary
injunction motion shall be confined to those issues within our subject matter jurisdiction and as
set forth in this holding. It is so ordered.

________________________________
Honorable Marvin E. Aspen
U.S. District Court Judge
Date: June 20, 2013

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