Carter v. City Of Chicago
MEMORANDUM Opinion and Order: For the reasons in the accompanying Opinion, Defendant City of Chicago's Motion to Dismiss 25 is granted in part and denied in part. Plaintiff Gloria Carter's claim for compensatory damages is dismissed with out prejudice. Carter's claim for declaratory and injunctive relief may proceed. Carter has until 3/10/2021 to file an amended complaint consistent with the accompanying Opinion. A status hearing is set for 3/17/2021 at 9:30 a.m. but to track the case only (no appearance is required; the case will not be called). Signed by the Honorable Franklin U. Valderrama on 2/17/2021: Mailed notice (axc).
Case: 1:20-cv-01083 Document #: 46 Filed: 02/17/21 Page 1 of 14 PageID #:207
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge Franklin U. Valderrama
CITY OF CHICAGO, AN ILLINOIS
MEMORANDUM OPINION AND ORDER
Plaintiff Gloria Carter (Carter) alleges that Defendant City of Chicago (the
City) denied her access to the City’s emergency shelter program while she was
homeless due to her disability, osteoarthritis. Carter filed suit against the City
claiming that she requested and was denied a reasonable accommodation for her
disability, in violation of the American with Disabilities Act, 42 U.S.C. §12101, et seq.
(the ADA) and Section 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act),
29 U.S.C. § 791, et seq. The City moved to dismiss the Complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). R. 25, Mot. Dismiss. 1 For the following
reasons, the City’s Motion to Dismiss is granted in part and denied in part.
to the docket are indicated by “R.” followed by the docket number and, where
necessary, a page or paragraph citation.
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The City operates an overnight shelter program (Shelter Program). R. 1,
Compl. ¶ 11. 2 To access an emergency shelter bed in Chicago, a person must either
call 311 or go to a police station or hospital, where the staff will call 311 on his/her
behalf. Id. ¶ 12. After a 311 call is made, the person seeking shelter must wait where
the call was made until a delegate agency picks that person up in a van and delivers
that person to a shelter facility selected by the City. Id. ¶ 13. Delegate agencies often
bring homeless individuals to Pacific Garden Mission (Pacific Garden). Id. ¶ 14.
Pacific Garden, Chicago’s largest homeless shelter, is not City-funded but
participates in the City’s Shelter Program. Id. With the exception of a shelter called
Sarah’s Circle and a few others, the majority of City-funded shelters participating in
the Shelter Program are inaccessible to individuals who cannot independently climb
stairs. Id. ¶ 16.
agency, Catholic Charities,
transportation, triage, and placement of Shelter Program individuals and families in
open bed shelters across the City. Compl. ¶ 20. Many, if not all, of the vans that
Catholic Charities uses to transport people experiencing homelessness are not
accessible to people with mobility disabilities. Id. ¶ 21.
Carter is an individual with osteoarthritis. Compl. ¶ 43. As a result, she is not
able to climb stairs or independently enter a standard model van that has not been
The Court accepts as true all of the well-pleaded facts in the complaint and draws all
reasonable inferences in favor of the plaintiff. Platt v. Brown, 872 F.3d 848, 851 (7th Cir.
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modified for use by people with disabilities. Id. ¶ 43. In mid-August 2019, Carter was
homeless. Id. ¶ 44. On August 11, 2019, Carter was admitted to Weiss Hospital
because she had fluid in her legs that caused her skin to break open. Id. ¶ 46. Carter
was scheduled to be released the afternoon of August 13, 2019. Id. On the morning of
August 13, 2019, a social worker at Weiss Hospital called 311 to locate a shelter for
Carter. Id. ¶ 47. Catholic Charities responded and indicated that it would send a van
to pick up Carter and take her to Pacific Garden. Id. ¶ 48.
Carter waited for the van from Catholic Charities from 3:00 p.m. to 12:00 a.m.
in the waiting room at Weiss Hospital. Compl. ¶ 49. The Catholic Charities van did
not arrive until approximately 1:30 a.m. on the morning of August 14, 2019. Id. ¶ 51.
Upon arrival, the driver helped Carter place her walker into the van. Id. ¶ 52. Carter
asked the van driver if he had a stepstool for the van, and he replied that he did not.
Id. ¶ 53. The driver informed Carter that if she could not access the van
independently, he would have to leave her. Id. Carter asked if there was an accessible
van to take her to Pacific Garden, to which the driver said no. Id. ¶ 54. He also
informed Carter that Pacific Garden had about thirteen steps to enter the building.
Id. ¶ 55. Carter told him that she could not climb stairs. Id. The driver left, so Carter
slept in a bus shelter across the street from the hospital that night. Id. ¶ 56.
Eventually, Carter was admitted to Sarah’s Circle on August 15, 2019. Compl.
¶ 62. However, Carter was informed that she could only stay at Sarah’s Circle for six
months, that is, until February 14, 2020, at which time she would have to leave. Id.
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On February 13, 2020, Carter filed a two-count Complaint against the City,
asserting claims under Section 504 of the Rehabilitation Act (Count I) and
Discrimination under the ADA (Count II). In her prayer for relief, Carter seeks
declaratory relief, a preliminary and permanent injunction, compensatory damages,
and several other forms of relief. The City moves to dismiss Carter’s Complaint
pursuant to Rules 12(b)(1) and 12(b)(6).
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the
complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual
allegations, accepted as true, sufficient to “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 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.” Id. The allegations “must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The
allegations that are entitled to the assumption of truth are those that are factual,
rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.
A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570
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F.3d 811, 820 (7th Cir. 2009). Standing is an “essential component of Article III’s caseor-controversy requirement,” and the plaintiff “bears the burden of establishing
standing . . . in the same way as any other matter on which the plaintiff bears the
burden of proof . . . .” Apex Digital, Inc. v. Sears Roebuck & Co., 572 F.3d 440, 443
(7th Cir. 2009). In order to survive a Rule 12(b)(1) motion, the plaintiff bears the
burden of establishing subject matter jurisdiction. Ctr. for Dermatology & Skin
Cancer, Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). When deciding a facial
challenge to subject matter jurisdiction—that is, when the defendant argues that the
plaintiff's allegations as to jurisdiction are inadequate—“the district court must
accept as true all well-pleaded factual allegations, and draw reasonable inferences in
favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). But district
courts may also “look beyond the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine whether in
fact subject matter jurisdiction exists.” Taylor, 875 F.3d at 853 (citing Apex Digital,
572 F.3d at 444). In that case, “no presumptive truthfulness attaches to plaintiff’s
allegations,” and the court is “free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Apex Digital, 572 F.3d at 444 (internal
The ADA was enacted “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(1). To that end, Title II of the ADA provides that “no qualified individual
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with a disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of services, programs or activities of a public entity, or be
subjected to discrimination by any such entity.” § 12132; Foley v. City of LaFaytte,
359 F.3d 925, 928 (7th Cir. 2004). The Rehabilitation Act specifically prohibits
federally funded organizations from discriminating on the basis of disability. Wis.
Community Services v. City of Milwaukee, 465 F.3d 737, 746 (7th Cir. 2006); see also
Shuhaiber v. Illinois Dep’t of Corr., 980 F.3d 1167, 1170 (7th Cir. 2020) (The ADA
and the Rehabilitation Act both prohibit discrimination against qualified persons
with disabilities.). In the Seventh Circuit, the ADA and Rehabilitation Act are
“functionally identical.” Wagoner v. Lemman, 778 F.3d 586, 592 (7th Cir. 2015). To
state a claim under the ADA and the Rehabilitation Act, an individual must allege
that: (1) she is a qualified individual with a disability; (2) she was denied the benefits
of the “services, programs or activities of a public entity”; (3) she was denied those
benefits or otherwise discriminated against on account of her disability, and for the
Rehabilitation Act claim, the additional requirement that (4) the defendant is an
entity which receives federal funds. Clemmons v. Dart, 168 F. Supp. 3d. 1060, 1065
(N.D. Ill. 2016).
Sufficiency of ADA and Rehabilitation Claims
The City raises three arguments to support its contention that Carter has not
stated a claim under either the ADA or the Rehabilitation Act. 3 First, the City argues
City does not challenge that Carter adequately alleged that she is disabled; that she is
qualified for the benefits and services sought; that the City is a public entity; or for purposes
of the Rehabilitation Act claim, that the City receives federal funds. Therefore, the City
waives any such contentions. See G& S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538
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that Carter has not alleged that she was denied a benefit based on her disability. Mot.
Dismiss at 4. Second, the City contends that the Complaint does not adequately allege
that the services provided by Pacific Gardens constitute a “service, program, or
activity” of the City. Id. at 7. Third, the City maintains that the Complaint fails to
adequately allege that the Shelter Program was not readily accessible to individuals
with disabilities. Id. at 6. The Court disagrees with the City’s arguments and finds
that Carter has sufficiently stated claims under both the ADA and the Rehabilitation
First, Carter alleges sufficient facts that the City denies access to its
emergency Shelter Program. Carter alleges that the van transport that responded to
her 311 call was not equipped for her disability and that she was told that there was
no such accessible van transport. Compl. ¶¶ 51–54. Carter further alleges that she
was told that to gain entrance to Pacific Gardens, she would have to climb
approximately 13 steps and that when she told the driver she could not climb stairs,
the driver left her. Id. ¶¶ 53, 55–56. These factual allegations raise a plausible
inference that the City’s Shelter Program denies access on account of disability.
Second, the City’s contention that Carter fails to properly allege that the
services provided by Pacific Garden are a “service, program, or activity” of the City,
fares no better. As noted by Carter, this argument ignores the fact that Carter only
(7th Cir. 2012) (“a party waives an argument by failing to make it before the district court,”
including “affirmative argument[s] in support of a motion to dismiss”). No matter, as the
Court finds that Carter has pled that she was disabled; that she qualified for the benefits and
services of the City’s Shelter Program; that the City is a public entity; and that the City
receives federal funds.
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encountered Pacific Gardens through the City’s operation of its Shelter Program. R.
29, Resp. at 5. At this juncture, Carter has pled enough to raise the inference that the
City and Pacific Garden are engaged in a joint venture or that the City’s acts were
the result of a close relationship with Pacific Gardens. 4
Finally, the Court finds that Carter has properly alleged that the City’s
emergency shelter program is not “readily accessible.” 5 The City’s argument is
premised on the fact that Carter was able to gain access to another shelter, Sarah’s
Circle. Mot. Dismiss at 6–7. The fact that Carter was able to go to Sarah’s Circle does
not mean that the City’s Shelter Program is readily accessible. True, as the City
argues, a program need not provide “perfect accessibility” in order to comply with the
ADA. R. 35, Reply at 3. But, contrary to the City’s contention, Carter has not just pled
discrimination regarding a single shelter on a single night. Mot. Dismiss at 4. Rather,
she alleges that “the overwhelming majority of beds available through Defendant’s
emergency shelter program are in inaccessible buildings,” resulting in reduced
likelihood of placement in a shelter for people with mobility-related disabilities than
for people without such disabilities.” Compl. ¶¶ 17–18. She also alleges facts relating
to her own experience of being refused service to the City’s emergency Shelter
Program when her disability prevented her from accessing the shelter program’s van
Carter points out, an identical argument was rejected by Judge Gettleman in Martin v.
Emmanuel, 2019 WL 4034506, at *4–5 (N.D. Ill. Aug. 27, 2019). In Martin, Judge Gettleman
found that Martin raised an inference that the City and Pacific Gardens are engaged in a
joint venture or that the City’s acts were the result of a close relationship with Pacific
Gardens. Id. So too here.
5Because the Court finds that Carter has adequately alleged that the City’s Shelter Program
was not readily accessible, it does not opine on whether the “readily accessible” standard
applies only to city-owned buildings under 28 U.S.C. § 150.
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and the PGM shelter, as well as facts alleged by the plaintiff in Martin, 19-cv-1708,
that she was unable to obtain a bed at two shelters—PMG and Cornerstone—due to
her disability. Id. ¶¶ 23–24, 52–54. These allegations are sufficient, at the pleading
stage, to show that the City’s shelter program is not readily accessible to individuals
with physical disabilities. See Wright v. Giuliani, 2000 WL 777940, at *6 (S.D.N.Y.
June 14, 2000), aff’d, 230 F.3d 543 (2d Cir. 2000).
The Court finds, in viewing the allegations as true (as it must), that Carter has
adequately pled causes of action under the ADA and the Rehabilitation Act.
Alternatively, the City posits that even if the Court finds that Carter
adequately alleges ADA and Rehabilitation Act claims, the Court should dismiss the
Complaint because Carter lacks standing to seek declaratory or injunctive relief. For
a party to have “Article III standing, three requirements must be satisfied: (1) she
must have suffered an actual or imminent, concrete and particularized injury-in-fact;
(2) there must be a causal connection between her injury and the conduct complained
of; and (3) there must be a likelihood that this injury will be redressed by a favorable
decision.” Bryant v. Compass Grp. USA, Inc., 958 F.3d 617, 620–21 (7th Cir. 2020), as
amended on denial of reh’g and reh’g en banc (June 30, 2020) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)). To have standing for declaratory or
prospective injunctive relief, plaintiffs must face a “real and immediate threat of
injury,” as opposed to a threat that is merely “conjectural” or “hypothetical.” City of
Los Angeles v. Lyons, 461 U.S. 95, 102–03 (1983).
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The City argues that Carter’s future injury is not “certainly impending” and
there is no “substantial risk” that future harm will occur again, because although
Carter alleged she was homeless at the time she filed her Complaint, she has failed
to update her pleading to reveal her current status. Mot. Dismiss at 9–10.
Carter responds that courts evaluate standing at the time the complaint is filed
and argues that she alleged an injury in fact on the day she filed. Resp. at 9–10.
Carter contends that unlike the plaintiff in Martin (who, at the complaint filing, had
an apartment and the right to stay until the end of her lease), she alleged both that
her stay at Sarah’s Place was due to expire the day after she filed the Complaint and
that she would have nowhere to go. Cf. Martin, 2019 WL 4034506, at *3 (finding that
the Martin plaintiff lacked standing for injunctive relief, because she was living in an
apartment and faced no imminent threat of becoming homeless or being subjected to
discrimination again); see also Compl. ¶¶ 65–66. Meaning, on the date she filed the
Complaint, Carter was in imminent need of access to the City’s allegedly
discriminatory Shelter Program. Carter further maintains that each case cited in the
City’s Motion to Dismiss is distinguishable, as each involves injuries much more
speculative than her immediate threat of homelessness with her Sarah’s Place stay
expiring just one day later. See Mot. Dismiss at 10–11 (citing, among other cases,
Hummel v. St. Joseph Cnty. Bd of Comm’rs, 817 F.3d 1010, 1017 (7th Cir. 2016)
(affirming grant of summary judgment disposing of claims for injunctive relief as to
plaintiff’s ADA claims because plaintiffs presented no evidence that they planned to
return to the non-compliant courthouse)). Carter is correct that standing is evaluated
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at the time of the complaint filing (see Milwaukee Police Ass’n v. Bd. of Fire & Police
Comm’rs, 708 F.3d 921, 928 (7th Cir. 2013)), and the Court agrees that the cases cited
by the City in its Motion to Dismiss are distinguishable and finds that the Reply cases
are similarly unhelpful. 6 The Court finds that unlike the Martin plaintiff, Carter
sufficiently alleged an injury in fact for purposes of standing.
Carter also argues that the City’s argument really centers on mootness, and
the Court again agrees with Carter. “[S]tanding must be present at all stages of the
litigation . . . [and w]hen a party with standing at the inception of the litigation loses
it due to intervening events, the inquiry is really one of mootness.” Parvati Corp. v.
City of Oak Forest, Ill., 630 F.3d 512, 516 (7th Cir. 2010) (citations omitted). But
unlike standing, which requires the plaintiff to bear the burden of showing that she
has standing for each form of relief sought, see Simic v. City of Chicago, 851 F.3d 734,
738 (7th Cir. 2017), it is the defendant who bears the burden of showing that an action
is moot, see Banks v. Dougherty, 2010 WL 747870, at *6 (N.D. Ill. Feb. 26, 2010) (citing
Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 999 (7th Cir. 2002)). The City
has not even attempted, at this time, to meet its “heavy burden” of showing that
Carter’s action is moot. See id.
cases cited in the City’s Reply are no more helpful to the City’s argument. Reply at 6–7
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (plaintiff who had been placed in
a chokehold lacked standing to seek injunctive relief because he failed “to establish a real
and immediate threat that he would . . . be stopped for any  offense, by an officer . . . who
would illegally choke him into unconsciousness . . . .”)). The City also cites out-of-Circuit
district court cases in its Reply. Id. (citing Naiman v. New York University, 1997 WL 249970
at *1 (S.D.N.Y 1997); Tyler v. Kansas Lottery, 14 F. Supp. 2d 1220, 1225 (D. Kan. 1998)).
None of these cases involve similarly imminent injuries like the threat of homelessness in
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Because Carter sufficiently alleged that she faced an imminent and real threat
of injury at the time of filing (her shelter stay was expiring in one day and she had
nowhere to go) and the City has not even attempted to meet its burden of showing
mootness, this Court finds that it has Article III standing over Carter’s request for
injunctive and declaratory relief.
In order to recovery compensatory damages under the ADA or Rehabilitation
Act, a plaintiff must allege intentional discrimination, which can be established by a
showing of deliberate indifference. Lacy v. Cook Cnty, 897 F.3d. 847, 863 (7th Cir.
2005). Deliberate indifference is shown when the defendant (1) knew that a harm to
a federally protected right was substantially likely, and (2) failed to act on that
likelihood. Id. at 862. A plaintiff can satisfy the knowledge element by showing that
she alerted the “public entity to her need for accommodation or that the need for
accommodation is obvious or required by statute or regulation.” Reyes v. Dart, 2019
WL 1897096, *9 (N.D. Ill. Apr. 29, 2019).
Here, the Court finds that Carter has not sufficiently pled that the City was
deliberately indifferent to her disability. Carter does not allege that at the time the
call was placed on her behalf to the City, the City was alerted that it needed to
dispatch an accessible van. In fact, according to the allegations in the Complaint, the
first time Carter requested an accessible van was after the van arrived. As such, the
City was not provided any advance notice of the need for an accessible transport
vehicle. Carter argues that the Martin lawsuit put the City on notice that its Shelter
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Program discriminated against disabled people and the City failed to fix the program.
Carter contends that failing to send an accessible van to pick her up in light of Martin
shows the City’s deliberate indifference.
But Carter’s reliance on Martin does not save her Complaint, as nothing in
Carter’s Complaint reveals any advance notice to the City that it needed to dispatch
an accessible van to transport Carter to Pacific Garden. Carter cites only one case,
Clemmons, 168 F. Supp. 3d. at 1070, for the proposition that certain individuals in
need of ADA compliant services are excused from communicating that fact to their
service provider. Clemmons, however, as noted by the City, is factually
distinguishable. In Clemmons, the plaintiff was a double-amputee confined to a
wheelchair, housed in defendant’s jail, who was not provided one of the multiple,
ADA-complaint cells in the jail. Id. at 1070. The court found that the defendant had
knowledge of the plaintiff’s need for an ADA-complaint cell and failed to provide him
with one. Id. at 1070–71. In this case, nowhere in Carter’s Complaint does she allege
that, prior to the 311 call, the City was aware of the fact that Carter was disabled
and would need an accessible van. Carter therefore has failed to sufficiently plead
that the City was deliberately indifferent to her disability, and as such, her
compensatory damages claim cannot survive a motion to dismiss.
For the foregoing reasons, Defendant City of Chicago’s Motion to Dismiss 
is granted in part and denied in part. Plaintiff Carter’s claim for compensatory
damages is dismissed without prejudice. Carter’s claim for declaratory and injunctive
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relief may proceed. Carter has until March 10, 2021 to file an amended complaint
consistent with this Opinion. A status hearing is set for March 17, 2021 at 9:30 a.m.
but to track the case only (no appearance is required; the case will not be called).
Franklin U. Valderrama
United States District Judge
DATED: February 17, 2021
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