Gudkovich v. Mayor Office for People with Disabilities et al

Filing 103

MEMORANDUM Opinion and Order; The City's motion to dismiss 94 is denied in part in that Gudkovich's ADA and Rehabilitation Act claims will proceed. The motion is granted in part in that Gudkovich's other claims are dismissed. A status hearing is set for January 30, 2020 at 9:00 a.m. at which the parties should be prepared to set a discovery schedule. Signed by the Honorable Thomas M. Durkin on 1/27/2020:Mailed notice(srn, )

Case: 1:17-cv-08714 Document #: 103 Filed: 01/27/20 Page 1 of 8 PageID #:546

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BORIS GUDKOVICH,
Plaintiff,

No. 17 C 8714

v.

Judge Thomas M. Durkin

CITY OF CHICAGO,
Defendant.
MEMORANDUM OPINION AND ORDER
Boris Gudkovich alleges that the City of Chicago denied him a special parking
permit in violation of federal law. 1 The City has moved to dismiss for failure to state
a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 94. The motion is
denied in part and granted in part.
Legal Standard
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.
Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must
provide “a short and plain statement of the claim showing that the pleader is entitled
to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of
the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

Gudkovich filed his case pro se, but the Court eventually recruited counsel to
represent him.
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factual allegations” are not required, “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
The complaint must “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d
362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws all reasonable inferences
in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).
Background
City residents with disabilities can apply to the Department of Finance for a
dedicated street parking space near their residence. Once the Department of Finance
approves the application, the relevant alderman has discretion over whether to seek
the necessary City Council approval. See Municipal Code of Chicago § 9-64-050(c)
(“[A]ll restricted parking spaces created pursuant to this section shall require
approval by a vote of the city council to be effective. Upon receiving an initial
application, the alderman of the ward in which the restricted parking space will be
located may introduce an ordinance proposing approval of the creation of a restricted
parking space.”) (emphasis added) (available at http://library.amlegal.com/library/).
The City Council must then pass an ordinance granting the parking permit for the
application to be finally approved.

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Gudkovich was granted such a space at his former residence. When he moved,
he applied for a space near his new (now current) residence. His request was denied
because there were already several dedicated spaces on the block.
An applicant can request review of a Department of Finance rejection with the
Mayor’s Office for People with Disabilities. Gudkovich requested such review, and the
rejection was affirmed.
Gudkovich sought assistance with this process from his Alderman. He alleges
that the Alderman’s staff were “frustrated and angered” by his request. R. 93 ¶ 19.
Later, another resident on Gudkovich’s block had a dedicated parking space
approved. Gudkovich complained to the Alderman’s office that this was contrary to
the Department of Finance’s earlier assertion that there were already too many
dedicated spaces on the block. Gudkovich alleges that that the “Alderman’s office
refused to address his concerns or provide any information.” R. 93 ¶ 22.
The Department of Finance eventually approved a dedicated space for
Gudkovich. However, the City Council never passed an ordinance granting the
permit.
Gudkovich claims that he was denied a dedicated space because of the
Alderman’s “vindictive motive,” R. 93 ¶ 30, and that “there is no rational basis” for
the rejection, id. ¶ 33. Gudkovich claims that this constitutes a violation of the
following rights and statutes: (1) the Equal Protection Clause; (2) the First
Amendment; (3) the Due Process Clause; (3) the Americans with Disabilities Act; and
(5) the Rehabilitation Act.

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Analysis
I.

Equal Protection
Gudkovich alleges what is known as a “class-of-one” Equal Protection claim. A

“successful equal protection claim[] brought by a ‘class of one,’ . . . alleges that [the
plaintiff] has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Frederickson v.
Landeros, 943 F.3d 1054, 1060 (7th Cir. 2019). “The classic class-of-one claim is
illustrated when a public official, with no conceivable basis for his action other than
spite or some other improper motive . . . comes down hard on a hapless private
citizen.” Id.
The problem with Gudkovich’s claim is that he alleges it was the Alderman
and his staff that acted vindictively towards him. The Alderman is absolutely
immune for his legislative decisions. See Biblia Abierta v. Banks, 129 F.3d 899, 903
(7th Cir. 1997). And the Alderman’s motives are not attributable to the City. See Civil
Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 764 (7th Cir. 2003).
For Gudkovich to have stated a claim, he needed to allege that the Department
of Finance or City Council acted with improper motive. He didn’t make that
allegation. Gudkovich argues that there is no conceivable reason for the Department’s
rejection because a space was approved for another person. But it is conceivable that
the other person had disabilities more severe than Gudkovich and the Department
determined there was not sufficient space on Gudkovich’s block. Moreover, the
Department of Finance eventually approved a space for Gudkovich. The City Council

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never granted final approval. That decision is within the Council’s discretion, and
Gudkovich makes no allegation regarding the motive of Council as a whole. See
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Again, the Alderman’s
alleged motives cannot be imputed to the Council as a whole.
Therefore, Gudkovich’s Equal Protection claim is dismissed.
II.

First Amendment
The only potentially retaliatory conduct Gudkovich alleges is the Alderman’s

decision not to support Gudkovich’s application after an allegedly bad personal
interaction. But as discussed, the Alderman’s legislative decisions are immune from
suit. Thus, Alderman’s absolute immunity requires dismissal Gukovich’s First
Amendment retaliation claim as well.
III.

Due Process
A Due Process claim requires an allegation of a property or liberty interest.

Gudkovich does not argue that he has a property interest in a dedicated parking
space. See R. 100 at 11. Nor could he, as provision of such a space is conferred at the
discretion of the Department of Finance, the Alderman, and the City Council.
Gudkovich has no entitlement to such a space, as is required to establish a property
right protected by the Due Process clause. See Khan v. Bland, 630 F.3d 519, 527 (7th
Cir. 2010) (“To claim a property interest protected by the Fourteenth Amendment, a
person . . . must have more than a unilateral expectation of [the claimed interest]. He
must, instead, have a legitimate claim of entitlement to it.”).

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Gudkovich argues that denial of the permit burdens his fundamental right to
travel in that he is “unable to travel because of the difficulty in parking, which
impacts his quality of life given the severe difficulties associated with parking.” R.
100 at 11. But even if denial of the permit could be construed as denying Gudkovich
the ability to drive—which the Court doubts—the Seventh Circuit has held that
denial of “a single mode of transportation . . . does not impermissibly burden [the]
right to travel.” Matthew v. Honish, 233 Fed. App’x 563, 564 (7th Cir. 2007).
Therefore, Gudkovich’s Due Process claim is dismissed.
IV.

American with Disabilities Act & Rehabilitation Act
To state a claim under Title II of the ADA and the Rehabilitation Act, 2 a

plaintiff must allege that: (1) he is disabled; (2) he is qualified for the benefits he
sought; and (3) he was denied those benefits or otherwise discriminated against on
account of his disability; and (4) the defendant is a public entity. 42 U.S.C. § 12132;
see Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015). To satisfy the third
element, Gudkovich must allege either: “(1) the defendant intentionally acted on the
basis of the disability, (2) the defendant refused to provide a reasonable modification,
or (3) the defendant’s rule disproportionally impacts disabled people.” Wis. Cmty.
Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).
The City argues that Gudkovich has not alleged that “he was denied a disabled
parking permit because of his disabilities,” because he does not allege that he

The Rehabilitation Act is “functionally identical” to Title II of the ADA. See P.F. by
A.F. v. Taylor, 914 F.3d 467, 471 (7th Cir. 2019).

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“requested and/or was denied a reasonable modification.” R. 94-1 at 13. This
argument, however, assumes that the special parking permit is the benefit at issue.
That is the incorrect perspective. The benefit at issue is public street parking
generally. Gudkovich alleges that he cannot meaningfully access the benefit of public
street parking if it is too far from his residence. Other district courts have agreed
with this perspective in denying motions to dismiss similar claims. See Bassilios v.
City of Torrence, 166 F. Supp. 3d 1061 (C.D. Cal. 2015); Meekins v. City of New York,
524 F. Supp. 2d 402 (S.D.N.Y. 2007).
Gudkovich sought the accommodation of a special permit to allow him to
meaningfully access the benefit of public street parking. The City denied his request.
Gudkovich alleges that this denial was unreasonable because others have received
permits in the meantime. Whether the City’s denial of the accommodation was
reasonable is a question that must be addressed in discovery. Thus, the City’s motion
to dismiss the ADA and Rehabilitation Act claims is denied.

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Conclusion
Therefore, the City’s motion to dismiss [94] is denied in part in that
Gudkovich’s ADA and Rehabilitation Act claims will proceed. The motion is granted
in part in that Gudkovich’s other claims are dismissed. A status hearing is set for
January 30, 2020, at which the parties should be prepared to set a discovery schedule.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: January 27, 2020

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