Wolfe et al v. City of Chicago et al
Filing
17
MEMORANDUM Opinion and Order. Signed by the Honorable Harry D. Leinenweber on 2/6/2024: Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BLAKE WOLFE, KELLY WOLFE,
RICHARD LEE, ERIC LARSON, INNA
LARSON, ALMA BRAGAGNOLO, DAN
CASHIN & ELLE CASHIN,
Plaintiffs,
Case No. 23 C 15121
Judge Harry D. Leinenweber
v.
CITY
OF
CHICAGO,
MAYOR
JOHNSON, GARDA WORLD &
JOANNA SOBRAN,
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants City of Chicago, Mayor Johnson, Garda World, and Joanna Sobra
(collectively, “City of Chicago” or “the City”) move to dismiss Plaintiffs’ four-count
Complaint bringing Constitutional Substantive and Due Process claims against the City of
Chicago for the City’s decision to utilize a vacant building located at 526 N. Western
Avenue (“the Property”) as a migrant shelter. Defendants bring their Motion to Dismiss
under Rule 12(b)(1) and 12(b)(6). For the reasons stated herein, the Court GRANTS
Defendants’ Motion to Dismiss, and Plaintiffs’ Complaint is dismissed with prejudice.
I.
A.
BACKGROUND
Procedural Background
Plaintiffs filed suit against Defendants on October 18, 2023 (Dkt. No. 1). In the
same document, Plaintiffs moved for an Emergency Temporary Restraining Order seeking
to prevent the City from using the Property as a housing unit for 200 newly arrived
migrant men. A week later, Plaintiffs filed an Amended Complaint (Dkt. No. 10) and a
renewed Motion for Emergency Temporary Restraining Order (Dkt. No. 11). That same
day, the parties convened before this Court for a status call during which this Court orally
denied Plaintiffs’ Emergency Motion because Plaintiffs failed to establish a likelihood of
success on the merits due to a lack of standing under Article III of the Constitution (Dkt.
No. 12). On November 7, 2023, Defendants moved to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(1) for lack of standing and under 12(b)(6) for failure
to state a claim upon which relief could be granted (Dkt. Nos. 13, 14). Plaintiffs failed to
file a timely response to Defendants’ Motion – or any response, for that matter – despite
this Court’s order that any response be filed by November 28, 2023 (Dkt. No. 12).
Plaintiffs’ failure to respond operates as a forfeiture of the claim and an
abandonment of any argument against dismissing the claim. See Alioto v. Town of Lisbon,
651 F.3d 715, 721 (7th Cir. 2011) (forfeiture occurs where the “litigant effectively
abandons the litigation by not responding to alleged deficiencies in a motion to dismiss”);
Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ( “Failure to respond to an
argument [in a motion to dismiss] – as the [plaintiffs] have done here – results in
waiver.”); County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 818 (7th Cir. 2006)
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(“When presented with a motion to dismiss, the non-moving party must proffer some
legal basis to support his cause of action.”) (cleaned up).
Some courts in the Seventh Circuit have held that a failure to respond to a motion
to dismiss amounts to a forfeiture of claims and have dismissed the complaint outright
without examining the merits. Woody v. Illinois, 2013 WL 4945226, at *2 (N.D. Ill.
Sept. 10, 2013) (collecting cases). However, for the sake of completeness, the Court will
proceed to the Motion's merits. Id.
B.
Factual Background
Plaintiffs’ Amended Complaint alleges the following facts: On October 12, 2023,
the Alderman for the Chicago ward at issue in Chicago, Illinois, and other city officials
held a neighborhood meeting to discuss the use of a vacant building located at 526 N.
Western Avenue, Chicago, IL 60612, for a migrant shelter. Plaintiffs attended this
meeting, and in it learned that the city had decided to move forward with the plan. The
building is intended to house 200 men, is 10,000 square feet, and is in the residential
neighborhood in which Plaintiffs live, close to a liquor store, family homes, and a local
park. Two days later, on October 14, 2023, neighboring residents met with the Alderman,
who shared that it was his opinion that Mayor Brandon Johnson’s decision to use the
Property as a migrant shelter was an exploitation of the Governor’s “declaration of
emergency” for the migrant crisis and was in circumvention of local legal requirements
and constitutional due process. The Alderman communicated that he had proposed two
other possible properties to use as the shelter that were not as close to the family homes,
a family park, or a liquor store, but that Mayor Johnson had declined to go ahead with
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these alternatives. Plaintiffs allege that Defendants have violated local zoning ordinance
and city codes, as the building has insufficient bathrooms and fire suppression for the
200 migrant men. Plaintiffs also allege that as Chicago taxpayers, they are footing the bill
for the migrants’ housing and food even though the use of the Property as a migrant
shelter violates state and city law.
Plaintiffs’ Complaint brings four counts: Count I seeks a declaratory judgment that
using the Property as a migrant shelter is unlawful; Count II seeks a preliminary and
permanent injunction on the use of the Property as a migrant shelter; Count III brings
Fifth and Fourteenth Amendment Procedural Due Process claims under 42 U.S.C. § 1983;
and Count IV brings Fifth and Fourteenth amendment Substantive Due Process claims
under 42 U.S.C. § 1983.
II. DISCUSSION
A.
Counts I & II
Counts I and II bring claims for a Declaratory Judgment and a Preliminary and
Permanent Injunction, respectively. But neither alleges a substantive claim. The
Declaratory Judgment Act does not provide an independent cause of action. Garrard v.
Rust-Oleum Corp., 575 F. Supp. 3d 995, 1004 (N.D. Ill. 2021) (“[The Declaratory
Judgment Act’s] operation is procedural only – to provide a form of relief previously
unavailable.”) (cleaned up). And like declaratory relief, “injunctive relief . . . is a remedy,
not a cause of action, and thus should not be pleaded as a separate count.” Knutson v.
Vill. of Lakemoor, 932 F.3d 572, 576 n.4 (7th Cir. 2019). Further, as described below,
Plaintiffs do not plead sufficient federal standing in their due process claims, so there is
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no claim that entitles them to either a declaratory judgment or injunctive relief as
remedies anyway. Thus, Counts I and II are dismissed with prejudice.
B.
Counts III & IV
Defendants move to dismiss Counts III and IV under both Rule 12(b)(1) for lack
of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which
relief can be granted. Because the Court grants Defendants’ Motion under 12(b)(1) for
lack of federal standing, the Court need not assess the Complaint’s plausibility under
12(b)(6).
For standing under Article III, a plaintiff must have: (1) suffered an injury in fact;
(2) that is fairly traceable to the challenged conduct of the defendant; and (3) that is
likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016). When a plaintiff lacks standing, a federal court lacks jurisdiction. See
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101–02 (1998). Establishing standing
is the plaintiff's burden and “must be secured at each stage of the litigation.” Bazile v.
Fin. Syst. of Green Bay, Inc., 983 F.3d 274, 278 (7th Cir. 2020).
Because Defendants Rule 12(b)(1) motion contends that Plaintiffs’ Complaint lacks
sufficient factual allegations to establish standing, it is properly understood as a facial
attack on subject matter jurisdiction. Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015).
A facial attack “require[s] only that the court look to the complaint and see if the plaintiff
has sufficiently alleged a basis of subject matter jurisdiction.” Apex Dig., Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (emphasis omitted). At the motion to
dismiss stage, the Court employs the familiar “plausibility” requirement used for
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challenges brought under Rule 12(b)(6). Silha, 807 F.3d at 174. We thus accept all wellpleaded factual allegations as true and draw all reasonable inferences in favor of the
Plaintiff. Id. at 173. Accord, Prairie River Network v. Dynegy Midwest Generation, LLC,
2 F.4th 1002, 1007 (7th Cir. 2021).
After stripping away all conclusory statements of wrongdoing, Plaintiffs’ Complaint
contains the following alleged facts: Governor Pritzker declared a “State of Emergency”
in the city of Chicago during a migrant crisis. There was a townhall meeting with a local
Alderman in which it was communicated that Mayor Brandon Johnson decided to use a
vacant property located at 526 N. Western Avenue, Chicago IL 60612 as a migrant shelter
for 200 men, instead of two other alternatives that the Alderman had presented. The
vacant lot is a 10,000 square foot building near residences, a liquor store, and a local
park. According to Plaintiffs, the use of this property as a migrant shelter violates local
ordinances and zoning laws, in part because there are only two bathrooms for 200 men,
and noncompliant fire suppression and safety systems in place. According to Plaintiffs,
the use of this property as a migrant shelter will put local residents and the migrants
themselves in danger. Plaintiffs also allege that the “over-reach of the emergency decree
to claim executive power will [] cause property value injury to the homeowners.” (Compl.
¶ 31.) Plaintiffs also allege the migrant men will cause the local park to become unusable.
This all constitutes, for Plaintiffs, a deprivation of property without substantive or
procedural due process.
Defendants argue that Plaintiffs’ factual allegations fail to support any “injury in
fact” sufficient for Art. III federal jurisdiction. The Court agrees. A sufficiently pled injury
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in fact must be “concrete and particularized,” and actual or imminent, not conjectural or
hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). None of Plaintiffs’
alleged “injuries” meet this standard. The Court will assess each in turn.
First, Plaintiffs allege that use of the Property as a migrant shelter will depreciate
the residents’ property value and note there are experts ready to testify that
“unequivocally [] property values will drop substantially and make homes/condos in close
proximity to [the Property] all but unsellable.” (Compl. ¶ 31.) While a future injury can
satisfy Article III standing requirements, the injury must be “in a word, imminent.”
Prosser v. Becerra, 2 F.4th 708, 714 (7th Cir. 2021). Possible depreciation in value of
some of the surrounding homes is precisely the kind of speculative and hypothetical injury
that courts dismiss for lack of standing. In Ruggles v. Ige, the plaintiff alleged the opening
of a medical marijuana dispensary would damage his property value, but the court found
the “anticipated decline in property value . . . [to be] purely conjectural or hypothetical,”
and dismissed the complaint with prejudice. 2017 WL 427498, at *1, *6 (D. Hawai’i Jan.
31, 2017). Cf Kathrein v. City of Evanston, Ill., 636 F.3d 906, 914 (7th Cir. 2011) (finding
that a “demonstrable reduction in the market value of one’s property is an injury in fact
for standing purposes,” as opposed to a hypothetical reduction in market value). Simlarly,
in Feinberg v. Apple, Inc., the plaintiff alleged that the building of Defendant Apple, Inc.’s
retail store would constitute a fire hazard and nuisance, and that his property’s proximity
to the store was within the “zone of danger,” regarding harm he may suffer if the store
were to operate. 2016 WL 4371746, at *2 (S.D.N.Y. Aug. 10, 2016). The Court dismissed
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the complaint because this injury was a “mere prediction[] of harm,” too “speculative and
hypothetical,” and “insufficient to confer constitutional standing.” Id. at *2–3. Similarly,
Second, Plaintiff vaguely alleges injury to the local community by way of the shelter
turning nearby parking lots into “hang-out spots” and by harming the local park so that
the park, normally “filled with children, moms, dads, babysitters, people jogging,” will no
longer be usable for local residents. (Compl. ¶¶ 28, 29, 34.) This, too, is far too
conjectural to meet the standards for Art. III standing. Further, Plaintiffs cannot
“repackage an injury to a park as an injury to plaintiffs themselves” to satisfy standing.
Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 732 (7th Cir. 2020). “The
relevant showing for purposes of Article III standing is not injury to the environment but
injury to the plaintiff.” Friends of the Earth, Inc. v. Laidlaw Env. Services (TOC), Inc., 528
U.S. 167, 169 (2000).
Third, Plaintiffs allege that transitioning the Property into a migrant shelter would
violate state ordinances and local zoning laws. However, because a government’s
departure from its own procedures is not a particularized injury, but one shared by the
general public, such allegations are “precisely the sorts of widely shared grievances about
government that the Supreme Court has long held insufficient to generate a case or
controversy under Article III.” Penny v. Pelosi, 2021 WL 6102166, at *1 (7th Cir. Dec. 23,
2021). In Protect Our Parks, the plaintiffs made similar allegations, claiming that under
Illinois law, the defendant park district had acted ultra vires and in violation of state public
trust doctrine by entering into a use agreement with the Obama Foundation for the
construction of an Obama Presidential Center. 971 F.3d at 728. The Seventh Circuit held
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that while the plaintiffs may have standing in state court, “[f]or Article III purposes, the
plaintiffs are nothing more than concerned bystanders, and concerned bystanders are
not entitled to press their claims in federal court.” Id. at 732 (internal citation omitted).
Fourth, Plaintiffs allege that if the Property was permitted to transition into a
shelter, there would be harm to the migrants. Plaintiffs allege the situation would be
“inhumane” to the migrants because the building is not compliant with zoning laws, and
without a proper fire suppression system and insufficient bathrooms. (Compl. ¶¶ 21-24.)
However, it is a “well-established prudential standing limitation” that litigants cannot sue
in federal court to enforce rights of third parties. Rawoof v. Texor Petroleum Co., Inc.,
521 F.3d 750, 757 (7th Cir. 2008). In some cases, courts have allowed third-party
standing when “enforcement of the challenged restriction against the litigant would result
indirectly in the violation of third parties’ rights.” Kowalski v. Tesmer, 543 U.S. 125, 130
(2004) (citation omitted) (emphasis in original). That is not the case here. To the extent
migrants suffer or suffered any injuries from the use of the Property as a migrant shelter,
they would have to bring these claims themselves.
Fifth, the Court surmises that Plaintiffs’ attempt to plead taxpayer standing, since
their Complaint references the financial toll that the migrant shelter would take on them
as taxpayers. (Compl. ¶ 31.) Municipal taxpayer standing is a narrow doctrine permitting
a taxpayer the ability to challenge the misappropriation of public funds. “Municipal
taxpayers have standing to sue only when they have both identified an action on the
city's part that is allegedly illegal and adequately shown that city tax dollars will be spent
on that illegal activity.” Protect Our Parks, 971 F.3d at 736. Plaintiffs have satisfied neither
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prong. They have not identified exactly what action is allegedly illegal, nor have they even
alleged that the City will pay for the project with municipal taxes. Id. at 735. (“It is not
enough to simply allege that the City is spending money; the existence of municipal
taxpayer standing depends on where the money comes from.”) Thus, Counts III and IV
are dismissed with prejudice.
III.
CONCLUSION
For the reasons stated herein, the Court finds that Plaintiffs lack Art. III standing
and the Complaint is dismissed with prejudice for lack of subject matter jurisdiction.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: 2/6/2024
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