H.O.P.E., Inc. v. Alden Gardens of Bloomingdale, Inc. et al

Filing 100

MEMORANDUM Opinion and Order: The Alden Gardens Defendants' motion to dismiss (ECF No. 67 ) is granted in part and denied in part. Counts IIII against Alden Gardens of Bloomingdale, LP, are dismissed without prejudice. Count III against Horvath is dismissed. All other relief requested is denied. Signed by the Honorable Joan B. Gottschall on 9/29/2017.Mailed notice(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
H.O.P.E., INC. d/b/a HOPE FAIR
HOUSING CENTER, an Illinois
Not-for-Profit Corporation,
Plaintiff,
v.
ALDEN GARDENS OF BLOOMINGDALE,
INC., et al.
Defendants.

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Case No. 15 CV 9715
The Honorable Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
This is one of four related cases stemming from H.O.P.E., Inc. v. Eden Management,
LLC, et al., No. 13-CV-7391. In each case, H.O.P.E., Inc. (“HOPE”), a private, not-for-profit
corporation, and in some cases one or more individual plaintiffs, bring claims against, among
others, various current and former Illinois officials (collectively “State Defendants”). Each case
also involves a different group of nonstate defendants which allegedly operates a different
Supportive Living Facility (“SLF”) in Illinois. Plaintiffs, only HOPE in this case, see Compl. at
1, 5–6, ECF No. 1, generally allege the State Defendants and the SLF operators have unlawfully
excluded individuals with mental disabilities from participating in the Supportive Living
Program (“SLP”) in violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq.; the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and the Rehabilitation Act,
42 U.S.C. § 794.
The three alleged Supportive Living Facility defendants named in this case, Sandy
Horvath, Alden Gardens of Bloomingdale LP, and Alden Gardens of Bloomingdale, Inc.
(collectively “Alden Gardens Defendants”), move to dismiss HOPE’s claims against them for

lack of standing and failure to state a claim for which relief can be granted. See Fed. R. civ. P.
12(b)(1), (6). For the following reasons, the court grants the motion in part and denies it in part.
I. BACKGROUND
A. The Supportive Living Program
The court described the pertinent statutory and regulatory background in its opinion in
H.O.P.E., Inc. v. Eden Management, LLC (“HOPE I”), 128 F. Supp. 3d 1066, 1069–70 (N.D. Ill.
2015). The court repeats that background here with minor updates to provide context.
Medicaid, enacted in 1965 as an amendment to the Social Security Act of 1935, is a joint
federal-state program that provides medical assistance to low income individuals.1 See 42
U.S.C. § 1396 et seq. Although the federal government does not require states to participate in
the Medicaid program, once they do, they “must comply with federal statutes and regulations.”
Bertrand v. Maram, No. 05-CV-0544, 2006 WL 2735494, at *1 (N.D. Ill. Sept. 25, 2006) (citing
42 U.S.C. § 1396a(a)(10)), aff’d sub nom. Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452 (7th
Cir. 2007); see, e.g., 42 C.F.R. §§ 440.210, 440.220 (listing mandatory services a participating
state must provide to the “categorically needy” and “medically needy”).
The provision of mandatory services is not at issue here. Rather, these cases center on a
voluntary program, the Supportive Living Program, which the State of Illinois initiated after
“apply[ing] for and receiv[ing] a waiver of Medicaid’s normal rules” in order to provide “home
and community-based services” (“HCBS”). See Bertrand, 495 F.3d at 454 (citing 42 U.S.C. §
1396n(c)(1)). Under § 1396n(c)(1), a participating state may offer services in community
settings to qualified individuals who: (a) but for the provision of such services, would require a
level of institutional care such as a nursing home; (b) are members of a target group that is
1

“[A]dministration [of Medicaid] is entrusted to the Secretary of Health and Human Services (HHS), who in turn
exercises his authority through the Centers for Medicare and Medicaid Services (CMS).” Ark. Dep’t of Health &
Human Servs. v. Ahlborn, 547 U.S. 268, 275 (2006) (citation omitted).

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included in the waiver; (c) meet applicable Medicaid financial eligibility criteria; (d) require one
or more waiver services in order to live in the community; and (e) have the right to participate in
the waiver program in lieu of receiving institutional care.
The State of Illinois operates nine separate “Home and Community Based” waiver
programs. Each program targets a different segment of the state’s population. See
https://www.illinois.gov/hfs/medicalclients/hcbs/Pages/default.aspx (last visited Sept. 11, 2017).
The waivers are: Children and Young Adults with Developmental Disabilities-Support Waiver;
Children and Young Adults with Developmental Disabilities-Residential Waiver; People who are
Medically Fragile, Technology Dependent; Persons with Disabilities; Persons with Brain
Injuries; Adults with Developmental Disabilities; Persons who are Elderly; Persons with HIV or
AIDS; and Supportive Living Facilities. Id.
For an applicant to qualify for the last in the foregoing list of programs, the Supportive
Living Facilities program, he or she must:
1) Be age 22 years or over with a disability (as determined by the
Social Security Administration) or elderly (age 65 years or
over); and
2) Be screened by the Department [of Healthcare and Family
Services (“DHFS”)] or other State agency screening entity and
found to be in need of nursing facility level of care and that
Supportive Living Facility placement is appropriate to meet the
needs of the individual . . . .; and
3) Be without a primary or secondary diagnosis of developmental
disability or serious and persistent mental illness, as determined
by a qualified Department of Human Services screening agent;
and
4) have [his or her] name checked against [government offender
websites and databases].

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See Ill. Adm. Code tit. 89 § 146.220(a).2
If an individual satisfies these and other criteria, then an SLF may admit or retain that
individual as a resident.3
An SLF is a residential setting in Illinois that provides or
coordinates flexible personal care services, twenty-four hour
supervision and assistance (scheduled and unscheduled), activities,
and health related services with a service program and physical
environment designed to minimize the need for residents to move
within or from the setting to accommodate changing needs and
preferences; has an organizational mission, service programs and a
physical environment designed to maximize residents’ dignity,
autonomy, privacy and independence; and encourages family and
community involvement.
See Ill. Admin. Code tit. 89 § 146.200.
B. HOPE’s Allegations Against Alden Gardens
To be clear, the thrust of HOPE’s claims in these cases seems to be its contention that the
State Defendants promulgated and enforced a “no mental illness” policy applicable to SLFs. See
H.O.P.E., Inc. v. Eden Mgmt., LLC (“HOPE II”), No. 13-C-7391, 2016 WL 4011225, at *4–5
(N.D. Ill. July 27, 2016). But HOPE also brings claims against alleged operators of particular
2

DHFS tendered these criteria as parts of its waiver application to CMS and incorporated the criteria into the state
regulations that govern Supportive Living Facilities. See Current Waiver,
https://www.illinois.gov/hfs/SiteCollectionDocuments/SLPwaiver.pdf at 29 (last visited Sept. 11, 2017).
3
On January 26, 2017, the State of Illinois published for public comment a proposed SLP waiver renewal
application. Status Report 2–3, ECF No. 90 (N.D. Ill. May 5, 2017). The application for renewal proposes to make
the following change to the targeting criteria:
Potential Supportive Living Program (SLP) waiver participants must also be screened and meet nursing
facility level of care. The SLP does not exclude specific diagnoses, as long as the eligibility requirements
are met and the person is appropriate for placement with the SLP provider. The State will use PASRR [PreAdmission Screening/Resident Review] to assess for persistent risks and needs to inform whether the
person is appropriate for placement with the SLP provider.
Id. (quoting Application at 23, ECF No. 90-1), available in full at
https://www.illinois.gov/hfs/SiteCollectionDocuments/SLP0326Draft.pdf (last visited Sept. 11, 2017). The record
does not disclose whether the application for renewal has been approved.
Plaintiffs and the state defendants expressed agreement that this proposed change is not likely to moot these cases
at a hearing held May 12, 2017. The record includes no evidence showing that the application for renewal has been
approved, and the State of Illinois’ website lists the application as pending. See
https://www.illinois.gov/hfs/medicalclients/hcbs/Pages/default.aspx (last visited Sept. 11, 2017). As the court has no
reason to think the application has been approved or any change has been made to the Supportive Living Program to
conform it to the renewal application, the court intimates no view on what, if any, effect approval would have on
these cases.

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SLFs. Here, HOPE pleads its ADA, FHA, and Rehabilitation Act claims against the Alden
Gardens Defendants in Counts I–III of its complaint. The remaining counts pertain to the State
Defendants.
HOPE describes itself this way in its complaint:
HOPE counsels both housing seekers and housing providers on
their rights and responsibilities under fair housing laws. HOPE
also provides complaint investigation services including the use of
testers to help identify housing discrimination. All of these services
are provided free of charge to the community. HOPE also provides
professional and confidential consulting, training, and compliance
services to rental housing providers, real estate companies,
mortgage lenders, homeowners’ insurance companies,
municipalities, and governmental agencies.
Compl. ¶ 21.
HOPE states that it began investigating the Illinois Supportive Living Program after
receiving complaints from individuals whose applications were rejected. Id. ¶ 59. That
investigation and various reported complaints led to the filing of the first of these related cases.
Id. HOPE continued to receive individual complaints and conducted its own investigation and
testing from about November 2012 through at least February 2014. Id. ¶ 61; see also id. ¶¶ 63–
99. This case resulted from the investigation of the Alden Gardens SLF in Bloomingdale,
Illinois in November 2013. See id. ¶¶ 63–71.
HOPE alleges the following facts pertinent to the Alden Gardens Defendants. A trained
HOPE tester called the Alden Gardens supportive living facility on November 15, 2013. Id.
¶ 66. The tester ultimately spoke with defendant Sandy Horvath (“Horvath”), who identified
herself as Alden Gardens’ marketing and sales director. See id. ¶ 67–70. The tester told
Horvath that she was interested in placing her 81-year-old aunt. Id. ¶ 71. Horvath asked about
the aunt’s medical conditions. Id. The tester responded that her aunt suffered from arthritis and
degenerative joint disease of the knee. Id. The tester also said that her aunt had been diagnosed
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with schizophrenia that had been successfully controlled by medication for twelve years. Id.
Horvath allegedly replied, “I doubt we could take her here because of her diagnosis,
unfortunately.” Id. Horvath allegedly “went on to tell the [tester] that she wasn’t sure they had
any availability” and suggested the tester call Alden Gardens’ skilled nursing and rehabilitation
center, which Horvath said provided a higher level of care. Id. (first statement is an alleged
word-for-word quotation).)
II. STANDING
The Alden Gardens Defendants first move to dismiss Counts I–III under Federal Rule of
Civil Procedure 12(b)(1) for lack of standing. Because standing is jurisdictional, it must be
addressed before the Rule 12(b)(6) motion, which goes to the merits. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94–95 (1998) (“The requirement that jurisdiction be established
as a threshold matter . . . is ‘inflexible and without exception.’” (quoting Mansfield, C. & L. M.
Ry. Co. v. Swan, 111 U.S. 379, 382 (1884))).
A. Rule 12(b)(1) Standard
A Rule 12(b)(1) motion to dismiss allows a party to challenge the existence of subject
matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The plaintiff, as the party invoking federal
jurisdiction, must establish that standing is proper. Remijas v. Neiman Marcus Grp., LLC, 794
F.3d 688, 691 (7th Cir. 2015). When determining if subject matter jurisdiction is proper, “the
district court must accept as true all material allegations of the complaint, drawing all reasonable
inferences therefrom in the plaintiff’s favor, unless standing is challenged as a factual matter.”
Id. (quoting Reid L. v. Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir. 2004)). If a defendant
factually challenges the basis for federal jurisdiction, however, “[t]he district court may properly
look beyond the jurisdictional allegations of the complaint and view whatever evidence has been

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Field Code Changed

submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (alteration in original).
B. Standing Principles
Standing is “an essential and unchanging part of the case-or-controversy requirement
of Article III” of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (citation omitted). “As a jurisdictional requirement, the plaintiff bears the burden of
establishing standing.” Apex Digital, 572 F.3d at 443. There is no such thing as pendant
standing; “‘[A] plaintiff must demonstrate standing for each claim he seeks to press’ and ‘for
each form of relief’ that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).
To meet the minimum standing requirements of Article III, a plaintiff must prove three
elements: (1) he or she suffered or will suffer a concrete and particularized injury that is actual or
imminent; (2) the injury is fairly traceable to the defendant’s action; and (3) it is likely that the
injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560–61; Berger v. Nat’l
Collegiate Athletic Ass’n, 843 F.3d 285, 291 (7th Cir. 2016). To survive a Rule 12(b)(1) motion
challenging standing, “a plaintiff must plead sufficient factual allegations, taken as true, that
‘plausibly suggest’ each of these elements.” Berger, 843 F.3d at 289 (quoting Silha v. ACT, Inc.,
807 F.3d 169, 174 (7th Cir. 2015)); see also Laurens v. Volvo Cars of N. Am., LLC, 868 F.3d 622,
624 (7th Cir. 2017) (“At the pleading stage, it is normally not difficult to pass the standing bar.”).
C. HOPE HAS Adequately Pleaded a Concrete Injury Fairly Traceable to the Alden
Gardens Defendants
The Alden Gardens Defendants claim that HOPE’s complaint does not establish that it
suffered an injury in fact fairly traceable to them. They point out that under the facts alleged in
the complaint, the tester never submitted an application for the aunt, Alden Gardens never in so

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many words denied the tester’s aunt a spot based on her diagnosis of mental illness, and, they
assert, Horvath’s response, which they characterize as ambiguous at best, inflicted no injury. See
Mem. Supp. Mot. to Dismiss 5–8, ECF No. 68 (citing Freedom from Religion Found., Inc. v.
Lew, 773 F.3d 815, 821 (7th Cir. 2014).
The Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363, 379
(1982), “makes clear, however, that the only injury which need be shown to confer standing on a
fair-housing agency is deflection of the agency’s time and money from counseling to legal efforts
directed against discrimination.” Vill. of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir.
1990). The diversion of the agency’s resources to investigating discrimination inflicts the
necessary constitutional injury because were it not for the discrimination, “there would be more”
resources for counseling and other services supporting its mission. Id. (discussing “opportunity
cost” of fighting discrimination).
HOPE’s complaint alleges an injury-in-fact under this standard. The Alden Gardens
Defendants cite several out-of-circuit cases in their reply holding that the cost of litigation itself
cannot be a fair-housing agency’s sole injury, reasoning that organizations could manufacture
standing by simply filing suit. See, e.g., Philadelphia v. Montgomery Newspapers, 141 F.3d 71,
78–80 (3d Cir. 1998); Fair Emp’t Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28
F.3d 1268, 1276 (D.C. Cir. 1994). Assuming, without deciding, those cases state the rule in the
Seventh Circuit, HOPE plausibly alleges diversion of resources beyond this litigation. HOPE
specifically pleads that it provides fair-housing counseling at no charge to housing providers and
people seeking housing. Compl. ¶ 21. As for diversion of resources from conduct outside of this
litigation, HOPE states that it conducted at least three outreach and education initiatives
regarding the rights of persons with disabilities during the relevant time period. Id. ¶ 55. It also

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alleges that individual complaints prompted its investigation of the Illinois Supportive Living
Program, id. ¶ 59, and that conducting the investigation of other Supportive Living Facilities to
determine whether the practices about which it received complaints were widespread impeded its
educational outreach efforts and diverted its resources from its other programs, see id. ¶¶ 54–55,
59–62. As the inference of diversion of resources is plausible from these allegations, they more
than suffice under Havens Realty to allege an injury in fact. See Havens Realty, 455 U.S. at 378–
79 (holding fair-housing organization’s complaint establishing injury in fact by alleging that it
“has been frustrated by defendants’ racial steering practices in its efforts to assist equal access to
housing through counseling and other referral services”); Dwivedi, 895 F.2d at 1526
(organization could show that it was paid less for counseling services because it diverted
resources to fighting discrimination); Davis v. The Mansards, 597 F. Supp. 334, 343–44 (N.D.
Ind. 1984) (relying on Havens Realty to hold, after bench trial, that organization had standing
because “defendants ‘engaged in a systematic practice of discrimination against black applicants
and homeseekers that frustrated the counseling and referral services, drained the resources and
hindered the mission of the Northwest Indiana Open Housing Center”).
HOPE also discusses a tester’s standing to sue under Havens Realty. But HOPE did not
join the tester who called Alden Gardens as a plaintiff, see Compl. ¶¶ 19–21, so the court need
not analyze the tester’s standing.
Neither will the court make the mistake of conflating tester and organizational standing.
The Alden Gardens Defendants assert that Havens Realty and Dwivedi do not control because the
Alden Gardens Defendants “did not make discriminatory statements or false representations to
Plaintiff’s tester.” Reply 3, ECF No. 81. As explained in the Rule 12(b)(6) analysis, the
complaint, viewed in the light most favorable to HOPE, plausibly alleges discriminatory

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conduct. See Compl. ¶ 71. Even if it did not, however, Havens Realty would still foreclose this
argument (though, of course, HOPE would lose on the merits). Havens Realty addressed tester
and organizational standing. One of the testers, the Court held, lacked standing because he did
not allege that any defendant misrepresented to him that apartments were unavailable. Havens
Realty, 455 U.S. at 374–75. That did not doom the standing of the organization for which he was
testing, however. See id. at 378–79. At the complaint stage, the broad allegations the
organization’s resources were diverted sufficed to plead an injury in fact. Id. at 379. The Alden
Gardens Defendants’ attempt to make individual tester standing the measure of organizational
standing here must be similarly rejected. It is incompatible with the analysis in Havens Realty.
The court decides only that HOPE has alleged the essential ingredients of Article III
standing to sue the Alden Gardens Defendants in its complaint. To conclude otherwise would be
anomalous if this court has twice acknowledged that, at the complaint stage, HOPE’s allegations
that it diverted resources adequately alleges standing. See HOPE II, 2016 WL 4011225, at *4–5
(so holding; allegations regarding same testing described in the instant complaint adequately
alleged that “HOPE . . . diverted resources as an ‘opportunity cost’ of the Eden Defendants’
alleged discrimination”); HOPE I, 128 F. Supp. 3d at 1077–78 (finding problem with first round
of initial resource-diversion standing theory was traceability to State defendants, not absence of
injury in fact). As this litigation progresses, HOPE will need to substantiate the complaint’s
allegations supporting standing. See Davis, 554 U.S. at 734 (stating that “proof required to
establish standing increases as the suit proceeds” (citation omitted)); Havens Realty, 455 U.S. at
379 n.21 (noting that organization would have to prove its standing allegations at trial).
III. FAILURE TO STATE A CLAIM
The Alden Gardens Defendants also seek dismissal of HOPE’s claims against them under
Rule 12(b)(6). Their contentions come down to the same purported defect in the complaint: the
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failure to allege adequately that the HOPE tester received a sufficiently definite denial to state a
claim. After setting forth the procedural rules, the court first addresses a conceded basis for
dismissing two of the Alden Gardens Defendants.
A. Rule 12(b)(6) Standard
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v.
Cnty. of Boone, 483 F.3d 454, 457 (7th Cir. 2007). To survive a Rule 12(b)(6) motion, a
complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies
this standard when its factual allegations “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555–56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th
Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a
story that holds together.”). For purposes of a motion to dismiss, the court takes all facts alleged
by the plaintiff as true and draws all reasonable inferences from those facts in the plaintiff’s
favor, although conclusory allegations that merely recite the elements of a claim are not entitled
to this presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
B. The Claims HOPE Effectively Withdraws Are Dismissed
Two of the three Alden Gardens Defendants, Horvath and Alden Gardens of
Bloomingdale, LP, contend that they are improper defendants as to some of the counts because
the third Alden Gardens defendant owns and operates the Supportive Living Facility and receives
federal funding. The factual support for their contentions comes from the declaration of Scott
Kolzow. See ECF No. 67-1 ¶¶ 1–2.
HOPE responds that “[a]lthough the declaration is somewhat conclusory and fails to
identify what activities are carried out by Alden Gardens of Bloomingdale LP, HOPE does not

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object to the dismissal of Alden Gardens of Bloomingdale LP, without prejudice” to allow it to
replead against this defendant should discovery reveal contrary information. Resp. to Mot. to
Dismiss 14–15, ECF No. 75. HOPE also does not object to the dismissal of Horvath as
defendant to Count III, the Rehabilitation Act claim against her. Id. at 15.
Relying on Kolzow’s declaration to decide the instant motion will convert it to a
summary judgment motion. Fed. R. Civ. P. 12(d). But a dismissal at summary judgment
operates as a decision on the merits with prejudice. See Fluker v. Cnty. of Kankakee, 741 F.3d
787, 792 (7th Cir. 2013); Chavez v. Ill. State Police, 251 F.3d 612, 630 (7th Cir. 2001). That does
not seem to be what HOPE wants or what these defendants agree to in their reply. See Reply 1,
ECF No. 81 (declining to address this issue further given HOPE’s response). To give the parties
what they want, the court takes HOPE’s agreement to dismissal without prejudice as a
withdrawal of these claims with permission to seek leave to replead them if it has a basis under
Federal Rule of Civil Procedure 11 for doing so. See Nolan v. City of Chicago, No. 15-CV11645, 2017 WL 569154, at *2 (N.D. Ill. Feb. 13, 2017) (citations omitted) (dismissing claims in
complaint where plaintiff conceded he sued the wrong defendant and withdrew counts against
that defendant).
C. HOPE States Claims Under the Fair Housing Act
HOPE pleads that the Alden Gardens Defendants violated the FHA by denying an
opportunity to complete an application and the opportunity to rent a desired unit.4 Compl.
¶¶ 123(a), (b). Congress passed the FHA, in short, “to replace the ghettos by truly integrated and
4

HOPE also pleads a claim under 42 U.S.C. § 3604(c), Compl. ¶ 123(c), which makes it unlawful to:
make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement,
with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination
based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any
such preference, limitation, or discrimination.
The Alden Gardens Defendants neglect § 3604(c) in their opening motion and supporting memorandum, so the court
does not analyze it here.

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balanced living patterns.” Bloch v. Frischholz, 587 F.3d 771, 782 (7th Cir. 2009) (en banc)
(citing Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972)). HOPE tells the court that
its claims implicate two sections of the FHA. The first, § 3604(f), makes it unlawful, among
other things, to “discriminate in the sale or rental, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap of that buyer or renter.” 42 U.S.C. §
3604(f)(1)(A). The Alden Gardens Defendants assert that a formal application for housing and a
subsequent denial are necessary elements of a § 3604(f)(1) claim, but they cite no authority to
support their contention. Mem. Supp. Mot. Summ. J. 8, ECF No. 68. To the contrary, under
federal pleading standards, a plaintiff must “at least identify the type of discrimination that
allegedly occurred, who brought about that discrimination, and when that discrimination took
place.” Access Living of Metro. Chi. v. Prewitt, 111 F. Supp. 3d 890, 899 (N.D. Ill. 2015) (citing
Swanson, 614 F.3d at 405).
HOPE’s complaint does all of those things. Compl. ¶ 71. Just as in Access Living, which
denied a motion to dismiss: “the allegations identify the type of discrimination that allegedly
occurred (disability discrimination), the who [ ]), the what (specific words used by the testers and
by Defendant in communicating about the property), the when and where (dates and times of
telephone conversations in connection with a . . . tester’s effort in [November] 2013 to rent a
property), and the how ([abruptly changing the subject upon learning of the potential renter’s
disability and then trying to steer the tester to another facility]).” Access Living, 111 F. Supp. 3d
at 897; see also Compl. ¶¶ 66–71. The Alden Gardens Defendants lay great emphasis on the fact
that Horvath said that she was not sure whether there was any availability. Compl. ¶ 71. Viewed
in the light most favorable to HOPE, as it must be at this stage, Horvath’s statement looks like a
further attempt to discourage the tester, especially after Horvath’s abrupt about-face upon

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learning that the tester’s aunt was diagnosed with a mental illness. See id.; see also Access
Living, 111 F. Supp. 3d at 899 (complaint adequately stated claim of misrepresentation in part
based on allegation that rental agent stated that unit “was inappropriate for the handicapped”).
Additionally, the absence of any allegation that Horvath tried to follow up on the tester’s inquiry
and instead steered her to another facility plausibly pleads a discriminatory purpose. See Smith v.
Hous. Auth. of S. Bend, 867 F. Supp. 2d 1004, 1018–19 (allegations that building owner failed to
remedy problems uniquely facing tenant with disability after receiving complaints plausibly
alleged § 3604(f) violation). The complaint therefore states a claim under § 3604(f)(1).
HOPE also claims the Alden Gardens Defendants violated § 3617, which makes it
unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or
enjoyment of, or on account of his having exercised or enjoyed, or on account of his having
aided or encouraged any other person in the exercise or enjoyment of, any right granted or
protected by section . . . 3604.” To state a claim for a violation of § 3617, a plaintiff must allege:
(1) she is a protected individual under the FHA; (2) she was engaged in the exercise of her fair
housing rights; (3) Defendants threatened, coerced, intimidated or interfered with her on account
of her protected activity under the FHA; and (4) Defendants were motivated by a desire to
discriminate. Stevens v. Hollywood Towers & Condo. Ass’n, 836 F. Supp. 2d 800, 810 (N.D. Ill.
2011) (citing Bloch, 587 F.3d at 783).
The Alden Gardens Defendants assert that HOPE has failed to plead sufficiently
pervasive interference to satisfy the third element. The Seventh Circuit has held that to be
actionable under § 3617, interference must be “more than a ‘quarrel among neighbors’ or an
‘isolated act of discrimination[;]’” rather, interference must rise to the level of “a ‘pattern of
discrimination, invidiously motivated.’” Id. at 811 (quoting Bloch, 587 F.3d at 783). This

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requirement has been applied in situations involving allegations of harassment of a tenant by
staff or other tenants and failure to provide accommodations, as when the staff of a high-rise
condominium confronts a plaintiff about her emotional support dog, see id., or as when a group
of homeowners tear down a Jewish family’s mezuzot for over a year, see Bloch, 587 F.3d at 783.
Even so, the Seventh Circuit has determined that “failure to provide a reasonable
accommodation, by itself, may amount to an interference with Plaintiffs’ rights under the Fair
Housing Act if it is done with discriminatory intent.” Stevens, 836 F. Supp. 2d at 811 (citing
Bloch, 587 F.3d at 781) (other citation omitted).
But HOPE does not need to plead a pervasive pattern of refusals to people with
disabilities to state a § 3617 claim. In Bloch, the en banc Seventh Circuit used the following
hypothetical to illustrate its construction of § 3617 with § 3604: “if a landlord rents to a white
tenant but then threatens to evict him upon learning that he is married to a black woman, the
landlord has plainly violated § 3617, whether he actually evicts the tenant or not.” Bloch, 587
F.3d at 782. In this hypothetical, § 3617 liability attaches to a single incident of discrimination,
notably one that would have the effect of denying the plaintiff housing entirely. See id.
Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283,
1288 & n.5 (7th Cir. 1977), cited in Bloch, provides another example of a § 3604 violation being
coterminous with a § 3617 violation. There, the Seventh Circuit reasoned that a village could
violate the FHA by discriminatorily refusing to rezone. Id. Again, the underlying violation
meant that people in the protected class would not get the housing they were seeking at all. See
id. These cases recognize that “it would make little sense to require a showing of a pattern of
harassment in the context of the alleged FHA violations relating to the sale [or eviction from or
refusal to rent] a residential property” because those incidents do more than interfere with a

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person’s housing rights; they sever them, or attempt to. United States v. Sabbia, No. 10 C 5967,
2011 WL 1900055, at *8 (N.D. Ill. May 19, 2011) (rejecting argument that plaintiff had to plead
pervasive pattern to state § 3617 claim). So because HOPE plausibly alleges a claim that the
tester’s ‘aunt’ was denied housing on account of her mental disability, it does not need to plead a
pervasive pattern.
D. HOPE Plausibly Alleges ADA and Section 504 Claims
To state a claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, a plaintiff
must plausibly “allege that (1) he is a qualified person (2) with a disability and (3) the [state
agency] denied him access to a program or activity because of his disability.” Wagoner v.
Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (quoting Jaros v. Ill. Dep’t of Corr., 684 F.3d 667,
672 (7th Cir. 2002)); accord Mallett v. Wis. Div. of Voc. Rehab., 130 F.3d 1245, 1257 (7th Cir.
1997) (citing Knapp v. Nw. Univ., 101 F.3d 473, 478 (7th Cir. 1996)). Title III of the ADA
prohibits discrimination on the basis of disability in places of public accommodation. 42 U.S.C.
§ 12182(a) (West 2017).
The Alden Gardens Defendants attack HOPE’s ADA and § 504 claims on grounds this
court already rejected. They contend that HOPE’s claims of discrimination are too speculative
because the tester’s ‘aunt’ did not submit an application and was not denied a place in the
Supportive Living Program in so many words. See Mem. Supp. Mot. to Dismiss 9–10, ECF No.
68. As already explained, the complaint plausibly alleges that Alden Gardens discriminated
against the tester based on the disclosed mental disability of the potential participant, i.e., the
aunt. See Compl. ¶¶ 66–71; see also id. ¶¶ 71, 128, 129, 131 (establishing elements of § 504
claim, including that the proper defendant was receiving federal funding).

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IV. CONCLUSION
For the reasons stated, the Alden Gardens Defendants’ motion to dismiss (ECF No. 67) is
granted in part and denied in part. Counts I–III against Alden Gardens of Bloomingdale, LP, are
dismissed without prejudice. Count III against Horvath is dismissed. All other relief requested
is denied.

Date: September 29, 2017

/s/
Joan B. Gottschall
United States District Judge

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