Lewis et al v. Pritzker et al

Filing 82

MEMORANDUM Opinion and Order: The Court grants defendants' motions to dismiss with and without prejudice 59 , 62 , 70 . The Court dismisses plaintiffs' Title II claim and individual defendants Miguel Artwell, Timothy Green, and T. Money from this lawsuit with prejudice. The Court also strikes plaintiffs' class action allegations and allegations for money damages. The Court grants plaintiffs leave to amend their Title III claim in accordance with this ruling. Plaintiffs' amended complaint is due on or before December 8, 2020. Signed by the Honorable Sharon Johnson Coleman on 11/17/2020. Mailed notice.(ym, )

Case: 1:20-cv-02836 Document #: 82 Filed: 11/17/20 Page 1 of 7 PageID #:491

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARCUS LEWIS, et al.,
Plaintiffs,
v.
WALMART CORPORATION, et al.,
Defendants.

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Case No. 20-cv-2836
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Pro se plaintiffs Marcus Lewis and Kelly King bring this lawsuit alleging violations of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., against the governor of Illinois,1
Walmart Corporation, Walgreen Corporation, Dollar General Corporation, and certain individual
employees of these retail stores. Before the Court are defendants’ motions to dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the Court grants
defendants’ motions to dismiss with and without prejudice. The Court grants plaintiffs leave to file
an amended complaint in accordance with this ruling by no later than December 8, 2020.
Background
Construing plaintiffs’ pro se allegations liberally, Taylor v. JPMorgan Chase Bank, 958 F.3d 556,
562 (7th Cir. 2020), they allege that they were denied entry into certain Walmart, Walgreens, and
Dollar General retail stores in Chicago because they were not wearing face coverings on May 4, 2020
during the COVID-19 pandemic. Plaintiffs’ allegations stem from Illinois Governor Jay Pritzker’s
April 30, 2020, Executive Order that states:
Any individual who is over the age of two and able to medically tolerate a facecovering (a mask or cloth face-covering) shall be required to cover their nose and
The Court granted Governor Jay Pritzker’s Rule 12(b)(6) motion to dismiss with prejudice on November
10, 2020 [81].

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mouth with a face-covering when in a public place and unable to maintain a six-foot
social distance. Face-coverings are required in public indoor spaces such as stores.
Executive Order 2020-32 § 1.1.
Specifically, plaintiffs allege that when they attempted to enter the Walgreens, Walmart, and
Dollar General stores, certain employees denied them entrance because plaintiffs were not wearing
face coverings. Plaintiffs state that they suffer from chronic asthma that prevents them from being
able to wear face masks or face coverings in public. Accordingly, plaintiffs argue they were not
medically able to tolerate face coverings as set forth as an exception to the governor’s ordinance, and
thus defendant retail stores violated Title II and Title III of the ADA. Plaintiffs seek $10 million in
damages from each defendant.
Legal Standards
A Rule 12(b)(1) motion challenges federal jurisdiction, and the party invoking jurisdiction
bears the burden of establishing the elements necessary for subject matter jurisdiction, including
standing. Taylor v. McCament, 875 F.3d 849, 853 (7th Cir. 2017). Under Rule 12(b)(1), the Court
accepts all well-pleaded factual allegations as true and construes all reasonable inferences in the
plaintiff’s favor. Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017). When
“external facts call the court’s jurisdiction into question,” the Court “may properly 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
(citation and quotation marks omitted).
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the
sufficiency of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179
L.Ed.2d 233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded
factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion
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to dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible
when the plaintiff alleges “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009).
Discussion
“The Americans with Disabilities Act prohibits discrimination based on disability in ‘major
areas of public life, among them employment (Title I of the Act), public services (Title II), and
public accommodations (Title III).’” Access Living of Metro. Chicago v. Uber Tech., Inc., 958 F.3d 604,
607 (7th Cir. 2020) (citation omitted). Under Title II of the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. “Public entity” means any state or local government or
their instrumentalities, such as state agencies. 42 U.S.C. § 12131. Moreover, there is no personal
liability under Title II of the ADA. Stanek v. St. Charles Cmty. Unit School Dist. No. 303, 783 F.3d 634,
644 (7th Cir. 2015). As such, plaintiffs can only bring their Title II claims against a state agency or
state official in his or her official capacity.
Plaintiffs allege that three private businesses, Walmart, Dollar General, and Walgreens,
denied them access to their stores – not that any state or local government denied them access to
public services, programs, or other activities, such as a public school. See, e.g., Ashby v. Warrick
County Sch. Corp., 908 F.3d 225, 230 (7th Cir. 2018). Therefore, plaintiffs’ Title II allegations
necessarily fail against these private businesses. Access Living, 958 F.3d at 611. Because defendants
are not public entities, the Court grants defendants’ motions to dismiss plaintiffs’ Title II claims with
prejudice.
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Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place
of public accommodation.” 42 U.S.C. § 12182(a). Because Title III only provides for injunctive
relief and not monetary damages, Scherr v. Mariott Int’l, 703 F.3d 1069, 1075 (7th Cir. 2013),
defendants argue that plaintiffs cannot establish Article III standing to bring their claims.
A “decision that plaintiffs lacked Article III standing is one of jurisdictional significance: it
means that the court had no authority to resolve the case.” MAO-MSO Recovery II, LLC v. State Farm
Mutual Auto. Ins. Co., 935 F.3d 573, 581 (7th Cir. 2019). To show standing for injunctive relief,
plaintiffs must establish: (1) they are under an actual or imminent threat of suffering a concrete and
particularized injury-in-fact; (2) a causal connection between the injury and the challenged conduct;
and (3) the likelihood the injury will be redressed by a favorable decision. Cook County, Ill. v. Wolf,
962 F.3d 208, 218 (7th Cir. 2020).
Defendants maintain that plaintiffs cannot establish there is a real and immediate threat of
future violations under the first standing requirement for injunctive relief. Access Living, 958 F.3d at
613. Specifically, defendants contend that plaintiffs have failed to plausibly assert the likelihood of a
future injury. Although plaintiffs allege that they will return to the retail stores “to ascertain whether
they remain in violation of the ADA” there are no allegations of potential future harm, namely, that
the stores will continue to refuse entry to them and other customers who claim medical exemptions
from Illinois’ face covering requirements. See Scherr, 703 F.3d at 1074. Nor do plaintiffs plausibly
allege any ongoing violations. Instead, plaintiffs simply state that a Walmart store manager, a
Walgreens security officer, and a Dollar Store manager did not allow them into the stores without
face coverings on May 4, 2020. Without more, plaintiffs have only alleged past injury, which is
insufficient to establish standing for prospective injunctive relief. Carello v. Aurora Policemen Credit
Union, 930 F.3d 830, 833 (7th Cir. 2019). The Court therefore grants defendants’ motions in this
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respect and also grants plaintiffs leave to file an amended complaint to cure their standing
deficiencies.
Next, defendants argue that plaintiffs have failed to sufficiently allege their Title III claim
under the federal pleading standards, which require plaintiffs to allege sufficient factual content
allowing the Court to draw the reasonable inference that defendants discriminated against plaintiffs
based on his or her disability.2 See 42 U.S.C. § 12188. Disability discrimination under Title III of the
ADA can be established by either disparate treatment, also known as intentional discrimination, or a
failure to accommodate claim. Plaintiffs do not allege that defendants failed to make reasonable
accommodations in their policies, practices or procedures after plaintiffs requested defendants to do
so, see 42 U.S.C. § 12182(b)(2)(A)(ii), thus the Court turns to whether plaintiffs have sufficiently
alleged a Title III intentional discrimination claim.
To state a discrimination claim under Title III, plaintiffs must allege: (1) that they are
disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public
accommodation; and (3) that defendants discriminated against them based on their disability by
denying them a full and equal opportunity to enjoy the goods, services, facilities, privileges,
advantages, or accommodations that defendants provide. 42 U.S.C. § 12182(a).
Here, plaintiffs allege that on May 4, 2020, they attempted to enter three retail stores in
Chicago, but were refused entry because they were not wearing masks or face coverings as required
by Governor Pritzker’s April 30, 2020, Executive Order. Plaintiffs allege that defendants
intentionally discriminated against them by refusing them entry because the governor’s ordinance
has an exception, namely, that individuals who cannot medically tolerate a face covering are not

Defendants also focus on the merits of plaintiffs’ claims, including that defendants neutrally applied the
governor’s ordinance to all customers – an argument that is not appropriate at this stage of the proceedings.
Hahn v. Walsh, 762 F.3d 617, 632 (7th Cir. 2014) (federal pleading standards do not involve the evaluation of
“the veracity of the pleaded facts or the ultimate merits of the plaintiff’s claim.”).
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required to wear one. These three isolated incidences, however, are not an adequate factual basis for
plaintiffs’ ADA claims because “[i]solated acts of negligence … do not come within the ambit of
discrimination against disabled persons proscribed by the ADA.” Foley v. City of Lafayette, 359 F.3d
925, 930-31 (7th Cir. 2004). Plaintiffs must allege more factual details plausibly suggesting
defendants are liable for intentional discrimination, not just that defendants’ employees made
isolated mistakes in relation to the governor’s order. The Court therefore grants defendants’
motions to dismiss plaintiffs’ Title III claim without prejudice and grants plaintiffs leave to amend
this claim.
Furthermore, because there is no individual liability under the ADA, the Court dismisses
individual defendants Miguel Artwell, Timothy Green, and T. Money from this lawsuit with
prejudice. Stanek, 783 F.3d at 644; see also Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000) (“The
ADA addresses its rules to employers, places of public accommodation, and other organizations, not
to the employees or managers of these organizations.”).
Last, because pro se litigants cannot bring class action lawsuits, the Court strikes plaintiffs’
class action allegations. Lawrence v. Secretary of State, 467 Fed. Appx. 523, 525, (7th Cir. 2012); see also
Georgakis v. Illinois State Univ., 722 F.3d 1075, 1077 (7th Cir. 2013) (“A nonlawyer can’t handle a case
on behalf of anyone except himself.”). The Court also strikes plaintiffs’ allegations for money
damages because they are only entitled to injunctive relief under Title III. See Scherr, 703 F.3d at
1075.
Conclusion
Based on the foregoing, the Court grants defendants’ motions to dismiss with and without
prejudice [59, 62, 70]. The Court dismisses plaintiffs’ Title II claim and individual defendants Miguel
Artwell, Timothy Green, and T. Money from this lawsuit with prejudice. The Court also strikes
plaintiffs’ class action allegations and allegations for money damages. The Court grants plaintiffs
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leave to amend their Title III claim in accordance with this ruling. Plaintiffs’ amended complaint is
due on or before December 8, 2020.
IT IS SO ORDERED.
Date: 11/17/2020
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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