Means et al v. St Joseph County Board of Commissioners et al

Filing 56

MEMORANDUM OPINION AND ORDER granting in part and denying in part 36 MOTION for Summary Judgment filed by City of South Bend. Motion is granted with respect to Plaintiff's claims for damages and denied with respect to Plaintiff's Mean's and Matney's claim for prospective relief. The damages claims of Means and Matney are dismissed for want of standing as are Hummel's claims for prospective relief. Signed by Judge Jon E DeGuilio on 9/26/2011. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
VICTORIA MEANS, et al.,
Plaintiffs,
v.
ST. JOSEPH COUNTY BOARD
OF COMMISSIONERS, et al.,
Defendants.

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No. 3:10-CV-003 JD

MEMORANDUM OPINION AND ORDER
In January 2010, Victoria Means, Tonia Matney, Stephen Hummel, and Margaret
Hummel filed this lawsuit to redress alleged violations of Title II of the Americans with
Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, and provisions of the state and
federal Constitutions.1 They alleged that the St. Joseph Superior Court, in St. Joseph County,
Indiana, is discriminating against them by failing to make the St. Joseph County Courthouse in
downtown South Bend and the Mishawaka County Services Building in Mishawaka readily
accessible to individuals with disabilities, as required by the ADA. They also sued the St. Joseph
County Board of Commissioners and the City of South Bend for failing to provide sufficiently
plentiful handicapped-accessible public parking near the Mishawaka and South Bend buildings,
respectively. In March 2010, Plaintiffs filed an amended complaint. See DE 27. The deadline for
discovery passed at the end of November, and on January 28, 2011, the two County Defendants
filed a Motion to Dismiss, which is the subject of a separate order. See DE 38, DE 55.
On the same day, the City filed the Motion for Summary Judgment now before the Court,

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Margaret Hummel, the late wife of Plaintiff Stephen Hummel, was termed from the case on May, 3 2010.

attaching just three exhibits reflecting the universe of facts it believes material to its motion. By
way of response, Plaintiffs sought and received leave to file an affidavit by Kent Hull, their
attorney of record, and in their May 26, 2011, response brief, Plaintiffs argue that the statements
in that affidavit create genuine issues of material fact necessitating a trial.2 The City filed its
reply brief on June 8, 2011.
For the following reasons, Defendants’ Motion is GRANTED in part and DENIED in
part. The court also DISMISSES, sua sponte, those claims that Plaintiffs lack standing to bring.
I. Facts
The following facts are viewed in the light most favorable to the non-movants.
All three current Plaintiffs are persons with disabilities who reside in St. Joseph County,
Indiana. See DE 27, ¶¶ 4–7. Mss. Means and Matney, who both use wheelchairs, were sued in
the Small Claims Division of the St. Joseph Superior Court. See DE 27, ¶ 6. As of January 2011,
the lawsuit against them was still pending, but subject to an indefinite continuance granted at the
plaintiff’s request nearly a year before, in February 2010. See DE 39-1 at 2.3 Mr. Hummel and
his late wife, who are both limited in mobility, initiated a lawsuit in the plenary docket of the St.
Joseph Superior Court in 2006, but the case was decided against them in September 2009, a
2

The City contests the propriety of allowing Mr. Hull’s affidavit, arguing that it is improper for Hull to be
both witness and advocate, and that the content of the affidavit is not relevant evidence within the definition of
Federal Rule of Evidence 401 because it has nothing to do with the experience of Plaintiffs themselves. The
magistrate judge in this case ruled that the affidavit would be admissible for purposes of summary judgment, but
reserved the question of whether Mr. Hull would be permitted to testify at any eventual trial. [DE 49] There is some
tension between this reservation and Federal Rule of Civil Procedure 56(c)(4), which provides that affidavits may be
considered on summary judgment only if the “facts would be admissible in evidence, and . . . the affiant or declarant
is competent to testify on the matters stated.” The Court will include in its discussion the facts from the affidavit that
Plaintiffs cite in their response brief, but need not revisit whether the affidavit should be allowed because it
concludes that the facts in the affidavit are immaterial to the issues properly before the Court.
3

Because of concerns about the Plaintiffs’ standing to sue, the Court includes evidence relevant to standing
from elsewhere in the record to determine whether it has jurisdiction over these claims, even though the parties have
not brought it to the Court’s attention for summary judgment purposes. See Fed. R. Civ. P. 56(c)(3).

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motion to correct errors was denied just after the complaint was filed in this case, and the
Hummels did not appeal the judgment. See DE 39-2.
The City of South Bend is a municipal corporation. See DE 27, ¶ 16; DE 19, ¶ 16. The
Courthouse is located at 101 South Main Street in downtown South Bend, Indiana, on a city
block bounded by Main Street on the east, Jefferson Boulevard on the south, Lafayette
Boulevard on the west, and Washington Street on the north. See DE 37-1, ¶ 4. The Small Claims
Division is located in a separate building, adjacent to the Superior Court Courthouse.4 The City
does not own, operate, lease, or have any other proprietary interest in the Courthouse, but is
responsible for planning, maintaining, and overseeing on-street parking and parking garages in
the vicinity of the Courthouse. See DE 37-1, ¶ 2; DE 27, ¶ 16; DE 19, ¶ 16. The only
handicapped-accessible entrance to the Courthouse is located on the west, Lafayette Boulevard
façade of the City-County Building: visitors take an elevator to a basement from which a
passageway leads to the Courthouse. See DE 37-1 ¶ 5. Plaintiffs do not allege that the City has
any connection to parking near the Mishawaka County Services Building in the City of
Mishawaka.
Out of the 59 on-street parking spaces closest to the accessible Lafayette Boulevard
entrance to the Courthouse, 7 are designated handicapped—roughly 11.8%. See DE 37-1, ¶ 5. Of
the 85 total on-street parking spaces in the four block area surrounding the Courthouse, at least 7
are designated handicapped—roughly 8.2%.5 See DE 37-2. Of these, two two-hour parking

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The Court takes judicial notice of the location of the county courthouses in downtown South Bend, as this
fact is generally known in the area, readily determinable from publicly available information, and not subject to
reasonable dispute by the parties. See Fed. R. Evid. 201.
5
The “Geographic Information System” map provided by the City appears to show nine spaces in this four
block area, but the summary information is partially cut off by the City’s exhibit stamp.

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spaces are located on Lafayette Boulevard near the entrance to the Courthouse, two more twohour parking spaces are located just around the corner on Jefferson Boulevard, near where it
intersects with Lafayette, and one four-hour parking space is provided near the northwest corner
of Jefferson Boulevard and Main Street. See id.; DE 37-1, ¶ 6.
Plaintiffs Means and Matney have not been personally affected by the alleged
insufficiency of handicapped-accessible parking in the vicinity of the Courthouse, but during
their litigation, their attorney found it necessary to have his wife drive him to Small Claims
Court because of the limited number of spaces, their location, their distance from the
Courthouse, and the inaccessibility of curb-cut ramps during inclement winter weather. See DE
53-1, ¶ 11. Plaintiff Hummel and his wife, however, “were required to park three blocks west of
the Courthouse and walk in order to avoid getting a ticket and avoid paying garage fees.” See DE
37-3 at 5.
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate
only when no reasonable jury could reach a verdict in the non-movant’s favor. Mercatus Group,
LLC v. Lake Forest Hosp., 641 F.3d 834, 839 (7th Cir. 2011). The party seeking summary
judgment “bears the initial responsibility of informing the district court of the basis for its
motion, and identifying” the evidence which “demonstrate[s] the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Substantive law determines
which facts are material; that is, which facts might affect the outcome of the suit under the

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governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To establish a genuine issue of fact, the nonmoving party must come forward with
specific facts showing that there is a genuine issue for trial, not simply show that there is “some
metaphysical doubt as to the material facts.” Turner v. The Saloon, Ltd., 595 F.3d 679, 691 (7th
Cir. 2010) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). Further, “[i]t is not the duty of the court to scour the record in search of evidence to
defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of
identifying the evidence upon which he relies.” Harney v. Speedway SuperAmerica, LLC, 526
F.3d 1099, 1104 (7th Cir. 2008). If the nonmoving party fails to establish the existence of an
essential element on which it bears the burden of proof at trial, summary judgment is
proper—even mandated. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
In ruling on a motion for summary judgment, a court must view all facts in the light most
favorable to the nonmoving party. Anderson, 477 U.S. at 255. A court must avoid the
temptation to “make credibility determinations, weigh the evidence, or decide which inferences
to draw from the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th
Cir. 2003). The court’s sole task in ruling on a motion for summary judgment is “to decide,
based on the evidence of record, whether there is any material dispute of fact that requires a
trial.” Id. If a reasonable factfinder could find in favor of the nonmoving party, summary
judgment may not be granted. Id.
III. Legal Analysis
Initially, the Court notes that the City, intentionally or not, limits its argument for
summary judgment to those claims based on Plaintiffs’ past encounters with the alleged lack of

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accessible parking. But there are really two sets of claims: claims for damages based on past
experience; and claims for prospective relief based on the continuing nature of the ADA
violations. The Court will consider the City’s arguments in support of its Motion for Summary
Judgment as they relate to past injuries first, and then turn to Plaintiffs’ claims for prospective
relief and consider, as it must, whether Plaintiffs have standing to seek such relief.
A.

Claims Based on Past Injuries
1.

Plaintiffs Means and Matney Have No Standing to Seek Damages

The City argues that Plaintiffs Means and Matney have not alleged or offered any
evidence that they were personally affected by the alleged inadequacy of accessible parking near
the County Courthouse, and that therefore these Plaintiffs lack standing to sue. The doctrine of
standing polices the outer limits of federal judicial power under Article III of the Constitution:
unless a claim involves an actual “Case” or “Controversy,” federal courts have no subject-matter
jurisdiction over it. Ezell v. City of Chicago, No. 10-3525, 2011 WL 2623511, at *7 (7th Cir.,
July 6, 2011); Lee v. City of Chicago, 330 F.3d 456, 469 (7th Cir. 2003). “Standing exists when
the plaintiff suffers an actual or impending injury, no matter how small; the injury is caused by
the defendant’s acts; and a judicial decision in the plaintiff’s favor would redress the injury.”
Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010) (citing Summers v. Easrth Island Inst., 555
U.S. 488, 129 S.Ct. 1142, 1149 (2009)). The Court agrees with the City: regardless of whether
the parking scheme near the County Courthouse in downtown South Bend violates the ADA,
Plaintiffs Means and Matney have not alleged or proved that they have personally encountered
or otherwise been harmed by the alleged violations.
Plaintiffs do not address the City’s standing arguments in their response. But were the

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Court to consider the contested affidavit of attorney Hull, discussed above, it would have
evidence before it that Hull encountered barriers caused by inclement winter weather during the
course of his representation of Means and Matney. And, in the Amended Complaint, Plaintiffs
claim that they sue because they were discriminated against not only on the basis of their own
disability but also that of their attorney’s disability. See DE 27. The Court notes that Plaintiffs
have made no effort to develop this legal theory since the Amended Complaint, even in response
to the City’s Motion for Summary Judgment. In any event, there is no basis for associational
injury in this case.
Unlike Titles I (employment discrimination) and III (public accommodation), Title II of
the ADA does not expressly prohibit what is called discrimination by association, but the
implementing regulations import this prohibition into Title II’s prohibition of discrimination by
public entities: “A public entity shall not exclude or otherwise deny equal services, programs, or
activities to an individual or entity because of the known disability of an individual with whom
the individual or entity is known to have a relationship or association.” 28 C.F.R. § 35.130(g).
The examples given in the Appendix to that regulation make clear that an associated individual
is not permitted to sue just because the disabled individual is injured, but only when the
associated individual is herself injured. Thus, a local government may not refuse the use of a
school auditorium to a theater company on the grounds that the company had recently performed
for an audience of HIV-positive individuals. 28 C.F.R. Pt. 35, App. A at 573 (analysis of §
35.130). And “if a public entity refuses admission to a person with cerebral palsy and his or her
companions, the companions have an independent right of action under the ADA.” Id. (emphasis
added). Courts, including others in this Circuit, have extended this logic to other similar

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situations. See, e.g., Schneider v. County of Will, State of Ill., 190 F. Supp. 2d 1082 (N.D.Ill.
2002) (unsuccessful applicants for bed and breakfast with handicapped-accessible guest rooms
had standing to sue: they were injured when the county denied permit allegedly because of the
disabled status of prospective clientele); Discovery House, Inc. v. Consol. City of Indianapolis,
43 F. Supp. 2d 997 (N.D.Ind. 1999) (drug rehabilitation center had standing to bring ADA claim
on the basis that it was denied permit because some prospective clients would be disabled),
overruled on other grounds by 219 F.3d 277 (7th Cir. 2003).
From these examples, it is plain that the alleged discrimination by association in this case
is not the sort contemplated in the regulation. Attorney Hull may himself have an injury that
would support his own standing, but there is no evidence (nor even any allegation) that Means or
Matney themselves suffered any injury because of their relationship with their disabled attorney.
Thus, even if Plaintiffs had made an argument for discrimination by association based on Hull’s
affidavit, and even if the Court were to consider the evidence in that affidavit, Means and
Matney have not been injured because of their association with Hull, and they do not have
standing to sue for any injury he suffered.
2.

Plaintiff Hummel’s Claim for Damages under the ADA and Rehabilitation Act
Fails as a Matter of Law

The City acknowledges that Plaintiff Hummel has put forward evidence that he and his
late wife were personally affected by the claimed dearth of accessible parking near the County
Courthouse. Thus, there is no question but that Hummel has standing to sue for compensatory
damages—the same rationale applies here, mutatis mutandis, that led to the Court’s prior holding
that Hummel may sue the County Defendant’s for past encounters with alleged ADA violations.

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Instead, the City argues that it is entitled to summary judgment on the question of whether the
parking scheme for the area around the County Courthouse violates the ADA.6 The Court agrees
that the record in this case cannot, as a matter of law, support a finding that the City has violated
the ADA by failing to provide adequate handicapped-accessible public parking.
Title II of the ADA provides that “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.” 42 U.S.C. § 12132. An individual with a
disability may establish a claim under Title II by “evidence that (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. Comm.
Serv. Inc. v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006) (en banc). As alleged, Mr.
Hummel’s claim appears to be that, despite knowledge of the inadequacy of parking in the
vicinity of the Courthouse, the City has refused to provide reasonable accommodations to
individuals by providing sufficiently plentiful handicapped-accessible parking close to the
Courthouse.
The City points out that the only evidence in the record supporting Plaintiffs’ allegation
that “accessible parking for individuals with disabilities driving to conduct business in the
Courthouse in South Bend . . . is not sufficiently plentiful and is located at great distances from
the Courthouse” is found in Plaintiffs’ answers to the City’s interrogatories, where they state that
“Stephen and Margaret Hummel were required to park three blocks west of the Courthouse and

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Because the ADA was built on and extends the reach of the Rehabilitation Act, Wis. Comm. Serv. v. City
of Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006), and the Rehabilitation Act prohibits the same or substantially
similar conduct as the ADA, see 29 U.S.C. § 794(a), the Court will consider to two claims together.

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walk in order to avoid getting a ticket and avoid paying parking garage fees.” See DE 37-3 at 5.
From this, the City infers that the Plaintiffs are arguing that there is an insufficient number of
free, handicapped-accessible parking spaces on the streets nearest to the County Courthouse.
Against this claim, the City points the Court to an affidavit from Marcia Qualls, a Customer
Service Coordinator for the City of South Bend whose job responsibilities include
“coordinat[ing] and receiv[ing] information regarding South Bend’s street parking and parking
garages,” see DE 37-1 at 1, and a “Geographic Information Systems” map that identifies the
various types of street parking available for the city-block immediately surrounding the
Courthouse, see DE 37-2. This evidence establishes that 7 out of the 59 street parking spaces
closest to the handicapped-accessible entrance to the Courthouse—roughly 11.8%—are
handicapped-accessible. See DE 37-1 at 3. Based on the map, it appears that if the entire fourblock area surrounding the Courthouse is considered, the approximate percentage of
handicapped-accessible parking spaces drops to 8.2%.
In response, the Plaintiffs do not dispute the parking information put forward by the City,
or point to any evidence in the record from which the Court could draw an inference that the City
has overstated the ratio of handicapped-accessible parking spaces to total street parking spaces.
Relevant to street parking, the genuine disputes of material fact that they argue will require a
trial are limited to the availability of long-term free street parking for individuals with
disabilities.7

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Plaintiffs also dispute facts concerning the location and accessibility of a nearby parking garage, and the
accessibility of street parking in inclement winter weather. But the accessibility of the parking garage (or the
ownership, which is also in dispute) is immaterial to Hummel’s claims under the ADA because there is no evidence
that Hummel ever parked in the garage. And the Court is aware of no evidence that Hummel was in any way affected
by winter weather conditions in his efforts to reach the Courthouse. So the Court limits its discussion to the claimed
insufficiency of free, on-street, accessible public parking near the courthouse.

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The Court holds that, based on the undisputed facts in this case, Hummel cannot establish
the elements of a violation of Title II of the ADA and thus that the City is entitled to judgment as
a matter of law. First, it is not clear that Hummel even disputes that the City provides a sufficient
number of handicapped-accessible street parking spaces. And while Hummel directs the Court to
nothing in the ADA or its implementing regulations, manuals, or Accessibility Guidelines
directly related to handicapped-accessible on-street parking, the Court will assume (and the City
does not dispute) that the City is required to provide handicapped-accessible on-street parking so
long as it provides on-street parking to the general public. See Lang v. Crocker Park, LLC, 2010
WL 3326867, at *3 (N.D. Ohio., Aug. 20, 2010) (“[T]here is no express requirement to provide
on-street parking in the [Accessibility Guidelines] . . . . However, if the Defendants are going to
provide on-street parking to the non-disabled, they may be required to provide disabled parking
as well.”).
While it agrees with Daubert v. City of Lindsay, No. 1:08cv01611, 2009 WL 4135861, at
*5 (E.D. Cal., Nov. 23, 2009), that imposing liability for inadequate (as opposed to a total lack
of) street parking “would impose potential liability where there is no guiding regulation,” the
Court will assume, for argument’s sake, that liability could be imposed based on other relevant
parking regulations. See Lang, 2010 WL 3326867, at *4–5. Still, the only guidance even
marginally relevant in the Accessibility Guidelines is found in the requirements for new
construction of parking lots and parking garages. And assuming, again for the sake of argument
and contra the court’s conclusion in Daubert, 2009 WL 4135861, at *5,8 that those guidelines

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“[I]t would seem improper to assume that the same requirements for lot/on-site parking would apply to onstreet parking. There are likely different considerations for on-street parking, the most obvious of which is the
smaller amount of space within which to work imposed by the characteristics of an active street.” Daubert, 2009 WL
4135861, at *5.

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may fairly be applied to street parking, the City’s undisputed evidence shows that the ratio of
handicapped to general on-street parking spaces closest to the handicapped significantly exceed
the Accessibility Guidelines requirements for new construction of parking lots and parking
garages, with which “any part of a public entity’s facility constructed after January 26, 1992
must be in conformity.” Phipps v. Sheriff of Cook County, 681 F. Supp. 2d 899, 923 (N.D. Ill.
2009) (quoting Pierce v. County of Orange, 526 F.3d 1190, 1216 (9th Cir. 2008)); see also 28
C.F.R. § 35.151. Those guidelines would require 3 accessible spaces for a parking lot with 51 to
75 total spaces (4–5.6%), and 4 accessible spaces for a total of 76 to 100 spaces (4–5.3%). See
ADA Accessibility Guidelines for Buildings and Facilities, § 4.1.2(5)(a); DE 37-4 at 7. In fact,
the 7 handicapped-accessible spaces within a one-block walk of the City–County Building would
satisfy the Accessibility Guidelines’ requirements for the new construction of a 300-space lot or
garage. At least one court has found that a similar ratio satisfies the reasonable accommodation
provisions of the ADA. See Ehrlich v. Gatta, 2009 WL 3213715, at *3–4 (S.D.N.Y, Oct. 5,
2009) (holding that 9 handicapped-designated spaces out 400-plus total spaces in close proximity
to a train station (2.25%), which included 5 out of 100 metered spaces at the station (5%), was a
reasonable accommodation under the ADA).
Finally, even if it were to assume that the ADA might require a higher ratio of on-street
spaces than the Accessibility Guideline specify for new construction, despite the concerns it has
already identified, the Court would still hold that no reasonable jury could find an ADA violation
where a municipality has dedicated greater than 10% of the on-street parking nearest public
facilities exclusively for the use of individuals with disabilities. Thus, even if Hummel has
preserved an argument that the City’s handicapped-accessible street parking is insufficiently

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numerous, and even granting all of the assumptions above—which would be far more generous
than any other case within the Court’s knowledge—no reasonable factfinder could conclude that
the ratio of handicapped-accessible on-street spaces to total on-street spaces violates the ADA.
The City is entitled to judgment as a matter of law on this claim. See Fed. R. Civ. P. 56(a).
Second, to the extent that Hummel argues that the City was required to provide him with
long term on-street handicapped-accessible parking close to the Courthouse, this claim also fails
as a matter of law. Courts that have considered the issue have held that while public entities must
reasonably accommodate individuals with disabilities, the ADA does not entitle those
individuals to special parking access not available to the general public. Thus, in Jones v. City of
Monroe, 341 F.3d 474, 479 (6th Cir. 2003), the court held that because both disabled and nondisabled individuals were subject to one-hour limits in all on-street spaces in the downtown
business district, the city was not required to provide a special benefit of all-day free parking for
disabled individuals. And in Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir. 1996), the
Eleventh Circuit refused to require the county to provide parking for disabled individuals in an
employees-only lot that was closest to the county building, explaining that “nothing in the Act,
its purpose, or the regulations can reasonably be read to give disabled parkers access to areas that
would not be available to them if they were not disabled.” Similarly in this case, the only
plausible inference from Hummel’s evidence and argument is that he is seeking a special parking
benefit—access to free, all-day parking in the immediate vicinity of the Courthouse—that is not
generally available to non-disabled members of the public. As things stand, Hummel had the
same parking options as anyone else: short-term on-street parking near the Courthouse, longterm parking in garages or lots for a fee, or free on-street parking several blocks farther away

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from the Courthouse. The City was not required to provide free long-term parking in the
immediate vicinity of the Courthouse for individuals with disabilities.
3.

Plaintiff Hummel has Failed to Develop His Constitutional Claims

In their complaint, Plaintiffs also allege that the City has violated its federal
constitutional rights to due process and equal protection of the laws, as guaranteed by the
Fourteenth Amendment, and their rights of access to open courts and equal privileges and
immunities, in violation of the Constitution of the State of Indiana, Article 1, Sections 12 and 23,
respectively. As a preliminary matter, however, the Court reiterates that Mr. Hummel is the only
Plaintiff with standing to pursue such claims and that Mss. Means and Matney lack standing to
pursue claims based on the City’s past conduct because they have not alleged that they have
suffered any injury caused by the City’s parking scheme.
In its Motion for Summary Judgment, the City challenges these claims by arguing that
Mr. Hummel has not alleged any facts that would constitute a federal constitutional violation,
nor provided any legal authority or argument for the proposition that insufficient handicappedaccessible parking in the vicinity of a courthouse amounts to a violation of the Fourteenth
Amendment. Concerning the state constitutional claims, the City argues that “there is no Indiana
authority for the proposition that South Bend’s handicapped Parking allocation constitutes a
violation of the Indiana constitution.” See DE 37 at 11. Plaintiffs make no response at all to the
City’s challenge to its causes of action under the federal and state Constitutions.
Based on this complete failure to defend against the City’s arguments, the Court grants
the City’s Motion for Summary Judgment on these constitutional claims. It is not the Court’s job
to conduct legal research and construct legal arguments for the parties. See Gross v. Town of

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Cicero, 619 F.3d 697, 704 (7th Cir. 2010). In fact, “[i]t is a well-settled rule that a party
opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual,
why summary judgment should not be entered. If it does not do so, and loses the motion, it
cannot raise such reasons on appeal.” Domka v. Portage County, 523 F.3d 776, 783 (7th Cir.
2008) (quoting Liberales v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983)). The City has
called Plaintiffs’ bluff, and absent some explanation of a viable legal theory to support the
constitutional claims, those claims may not proceed to trial.
B.

Claims for Prospective Relief
Next, the Court considers Plaintiffs’ claims for injunctive and declaratory relief based on

the threat of future harm, rather than past encounters. First, the Court notes that the City has
made no argument nor put forward any evidence specifically with respect to the Plaintiffs’
future-oriented claims. To the extent the City’s motion seeks judgment on these claims, it is
denied. That does not quite end matters in this case, however, because the Court must consider
its own jurisdiction to hear the case, whether directed by the parties or on its own accord, and the
Court does not have jurisdiction over this case to the extent that Plaintiffs lack standing to bring
particular claims. Ezell, 2011 WL 2623511, at *7. The Court has already held that Hummel lacks
standing to pursue prospective relief against the County Defendants because he has no pending
case and has not alleged that he has any intention of returning to the Courthouse for any reason.
See DE 55, at 12. For the same reasons outlined there, the Court lacks jurisdiction to consider
Hummel’s claim for prospective relief against the City.
Based on the only evidence the Court has before it, however, Means and Matney appear
to have standing to pursue their claims for prospective relief. According to the docket sheet

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submitted by the County Defendants with their Motion to Dismiss and accompanying
memorandum and exhibits [DE 38, 39, 39-1], it appears that the case of Dunedin Apts. v. Matney
and Means, Cause No. 71D01-0911-SC-11358 was still pending as of January 27, 2011. If this
case is still pending and is, in fact, a live controversy that may require Means and Matney to
appear in court at any time, the Court is satisfied that the continuing nature of the litigation is
sufficient to provide standing for Means and Matney to challenge the conditions of handicappedaccessible public parking in the vicinity of the Courthouse.
Conclusion
For the foregoing reasons, the City’s Motion for Summary Judgment is GRANTED with
respect to Plaintiff Hummel’s claims for damages and DENIED with respect to Plaintiffs
Means’s and Matney’s claims for prospective relief. The damages claims of Means and Matney
are DISMISSED for want of standing, as are Hummel’s claims for prospective relief.
SO ORDERED.
ENTERED:

September 26, 2011

/s/ JON E. DEGUILIO
Judge
United States District Court

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