Simmons v. Illinois Dept of Human Rights

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

KENNETH SIMMONS, )

)

Plaintiff, )

)

v. ) No. 20-cv-3243

)

ILLINOIS DEPARTMENT OF )

HUMAN RIGHTS, )

)

Defendant. )

)

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

This cause is before the Court on Defendant Illinois

Department of Human Rights’ Motion to Dismiss (d/e 6) the pro se

complaint filed by Plaintiff Kenneth Simmons. For the reasons that

follow, the Motion is GRANTED.

I. INTRODUCTION

On September 16, 2020, Plaintiff Kenneth Simmons,

proceeding pro se, filed a four-count complaint alleging the Illinois

Department of Human Rights (the Department) violated the

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101 et

seq., as well as Simmons’ rights under the First Amendment and

the Due Process Clause.

The Department moves to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(1) and 12(b)(6). The Department asserts

Simmons lacks standing to seek prospective relief, lacks standing

on Counts II and III, and fails to state a claim on all counts.

II. BACKGROUND

Simmons’ claims primarily relate to a fact-finding conference

held by the Department under the Illinois Human Rights Act. By

way of background, the Illinois Human Rights Act prohibits

discrimination in connection with employment, real estate

transactions, access to financial credit, availability of public

accommodations, and education. See 775 ILCS 5/2-101 et seq.

(2020), 5/3-101 et seq., 5/4-101 et seq., 5/5-101 et seq., 5/5a-101

et seq.; see also 775 ILCS 5/6-101 (additional civil rights

violations); Blount v. Stroud, 232 Ill.2d 302, 309 (2009). Under the

Act, a person who believes that he has been discriminated against

has an administrative process to enforce the right to be free from

such discrimination. See Cooper v. Bombela, 34 F. Supp. 2d 693,

695 (N.D. Ill. 1999), aff’d 196 F.3d 809 (7th Cir. 1999).

Specifically, the complainant files a charge of discrimination

with the Department. 775 ILCS 5/7A-102(A). The Department

serves the respondent and conducts an investigation to determine

whether the allegations are supported by substantial evidence. 775

ILCS 5/7A-102(C); 56 Ill. Admin. Code § 2520.430(a) (providing

that, after a charge is filed, the Department “shall institute an

investigation to ascertain the facts relating to the civil rights

violation as alleged in the charge and any amendments”). As part of

its investigation, the Department may hold a fact-finding conference

for the purpose of obtaining evidence, identifying the issues,

ascertaining the parties’ positions, and exploring the possibility of

settlement. 56 Ill. Admin. Code § 2520.440(a); 775 ILCS 5/7A-

102(C)(4) (providing the Department shall conduct a fact-finding

conference except in certain circumstances). “No tape recording,

stenographic report or other verbatim record of the conference can

be made.” 56 Ill. Admin. Code § 2520.440(c); see Cooper, 34 F.

Supp. 2d at 695 (noting the parties and investigator are permitted

to take notes).

Each charge investigated “shall be the subject of a report to

the Director.” 775 ILCS 5/7A-102(D)(1). The report is a

confidential document subject to review by the parties. 775 ILCS

5/7A-102(D)(1). The Director determines whether there is

substantial evidence that an alleged civil rights violation has been

committed. 775 ILCS 5/7A-102(D)(2). If the Director determines

there is not substantial evidence, the Director dismisses the charge

and gives the complainant notice of his right to seek review before

the Commission or commence a civil action in the appropriate

circuit court. 775 ILCS 5/7A-102(D)(3). If the Director determines

there is substantial evidence, the Director gives notice to the parties

of the complainant’s right to commence a civil action in the

appropriate circuit court or to request that the Department file a

complaint with the Human Rights Commission on the

complainant’s behalf. 775 ILCS 5/7A-102(D)(4) (also providing that

if the complainant fails to timely request the Department to file the

complaint, the complainant may file his complaint with the

Commission or commence a civil action in the circuit court). When

a complaint is filed with the Commission, the Commission holds a

hearing that provides the opportunity to examine and cross-

examine witnesses, the testimony is made under oath, and a

transcript is made, and the testimony is subject to the same rules

of evidence that apply in Illinois courts in civil cases. 775 ILCS

5/8A-102(G).

III. FACTS ALLEGED IN THE COMPLAINT

The Complaint here contains the following allegations.

Simmons has osteoarthritis in his back, both hips, both knees, and

a wrist. Compl. ¶ 9. Simmons has used a physician-prescribed

mobility device for the past sixteen years. Id. at ¶ 16. The Illinois

Secretary of State issued Simmons a permanent disability parking

placard in November 2018. Id. at ¶10.

Simmons uses, as prescribed by a family doctor, “high

concentrated THC” to help with the pain related to his disability.

Id. at ¶ 6. He also takes tizanidine to “control muscle spasms

related to his joint diseases both myalgia and myositis that are

related to his ADA qualifying condition.” Id. at ¶ 8. Simmons takes

diclofenac for his osteoarthritis. Id. at ¶ 9. The THC, tizanidine,

and diclofenac make Simmons drowsy and cause him to fall asleep.

Id. at ¶¶ 7, 8, 9.

On February 14, 2020, Simmons requested from the

Department an accommodation to allow him to participate in the

telephone fact-finding conference that was between Simmons and

the Village of Minier. Id. at ¶ 14. Specifically, Simmons stated, via

email:

With the amount of medical cannabis I use legally and

muscle relaxers it[’]s hard for me to write notes or keep up

during conversations sometimes so recording the phone

call is best for me so I can review it when [I’m] not very

medicated and will ask a court to intervene if needed. You

must provide case law and statute as to why I can not

record.

Id., Ex. (d/e 1, at 10). A second email provided, “Ada [sic] request.

My meds are directly related to my disability and this is a[n] ADA

request below.” Id. Simmons alleges he intended to have his wife

turn on her cell phone while she sat in the living room with him.

Compl. ¶ 17. He also alleges a stay-at-home order prevented others

from leaving the house to help him and prevented him from leaving

his home for help with the conference. Id. at ¶ 13.

The fact-finding conference occurred on April 7, 2020. Id. at ¶

19. The Department refused Simmons’ request for an

accommodation during the fact-finding conference when the

Department declared, after confirming Simmons still intended to

record the conference, that “Plaintiff is being uncooperative.” Id.

The Department hung up but continued the fact-finding conference

with the Village of Minier employees, attorneys, paralegals, and

other employees monitoring the conference. Id. Simmons also

alleges he refused to discuss a settlement and told all parties he

would hang up if the subject were brought up during the fact-

finding conference. Id. at ¶ 18.

In Count 1, Simmons alleges he has a qualifying disability

pursuant to the ADA and was denied a reasonable accommodation

to record the fact-finding conference. Compl. ¶¶ 17, 19. He seeks

$75,000 in damages, a finding that the Department violated the

ADA, and an order preventing the Department from committing

further ADA violations. Id. at ¶¶ 20-24.

In Count 2, Simmons alleges the Department has a policy,

practice, or procedure of telling persons with disabilities they are

not entitled to disability parking and an access aisle for their

mobility devices in parking lots open to the public. Compl. ¶ 25.

Simmons seeks $75,000 in damages, a finding that the Department

violated the ADA, and an order preventing the Department from

committing further ADA violations. Id. at ¶¶ 27-31.

In Count 3, Simmons alleges the Department has a policy,

practice, or procedure as an administrative review agency of telling

public bodies that they do not have to provide persons with

disabilities with disability parking or an access aisle for mobility

devices in parking lots open to the public. Compl. ¶ 32. Based on

this policy, practice, or procedure, public bodies have refused to

provide disability parking for persons with disabilities in parking

lots open to the public. Id. at ¶ 33. Simmons seeks $75,000 in

damages, a finding that the Department violated the ADA, and an

order preventing the Department from committing further ADA

violations. Id. at ¶¶ 35-39.

In Count 4, Simmons alleges that the Department refused to

allow him to lawfully record the fact-finding conference on April 7,

2020, and the Department hung up on Simmons because Simmons

engaged in constitutionally protected speech. Id. at ¶¶ 40-41.

Simmons was not allowed to record and review public officials doing

their public duties “while he slept, gathered his thoughts etc. or

attempted to follow along during the conference or to review later or

post on social media.” Id. at ¶ 43. Simmons alleges he wanted to

make sure the public officials were doing their jobs, and the

Department did not want the public to see they were violating the

ADA and not doing their job. Id. at ¶¶ 45-46. The conference was

recorded until the Department hung up. Id. at ¶ 47. The call was

posted on YouTube on May 7, 2020, and the Department is aware

the call is on YouTube. Id. at ¶¶ 48, 49. Simmons has not been

questioned by law enforcement about the recording. Id. at ¶ 49.

Simmons seeks $75,000 in damages, a declaratory judgment, a

finding that the Department violated Simmons’ due process or First

Amendment rights, and an order preventing further violations. Id.

at ¶¶ 50-54.

IV. ANALYSIS

Simmons brings three of his claims pursuant to the ADA,

which prohibits discrimination in three major areas: employment

(Title I), public services, programs, and activities (Title II), and

public accommodations (Title III). See Tennessee v. Lane, 541 U.S.

509, 516-17 (2004). Title II “prohibits any public entity from

discriminating against ‘qualified’ persons with disabilities in the

provision or operation of public services, programs, or activities.”

Id. at 517 (citing 42 U.S.C. § 12131-12134) (noting Title II

authorizes private citizens to bring suits for money damages). A

public entity includes “state and local governments, as well as their

agencies and instrumentalities.” Id. (citing 42 U.S.C. § 12131(1)).

A qualified person with a disability is:

an individual with a disability who, with or without

reasonable modifications to rules, policies, or practices,

the removal of architectural, communication, or

transportation barriers, or the provision of auxiliary aids

and services, meets the essential eligibility requirements

for the receipt of services or the participation in programs

or activities provided by a public entity.

42 U.S.C. § 12131(2).

The Court interprets Simmons’ claims in Counts I through III

as being brought under Title II of the ADA and interprets the claims

in Count IV as being brought under 42 U.S.C. § 1983. The

Department seeks dismissal of all four counts of Simmons’

Complaint.

A. The Court Sua Sponte Dismisses Count IV

The Court dismisses Simmons’ claim in Count IV, brought

pursuant to Section 1983, because the Department is immune

under the Eleventh Amendment.

The Eleventh Amendment “bars federal jurisdiction over suits

brought against a state, not only by citizens of another state or

foreign state, but also by its own citizens.” MCI Telecomm. Corp. v.

Ill. Bell Tel. Co., 222 F.3d 323, 336 (7th Cir. 2000). The Eleventh

Amendment applies “regardless of the nature of the relief sought.”

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 1000

(1984).

The Eleventh Amendment applies unless the states

unequivocally waive the protections of the Eleventh Amendment

and consent to suit in federal court or Congress abrogates the

states’ Eleventh Amendment immunity. Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 47 (1996) (citing Ex Parte Young, 209 U.S.

123, 162 (1908)). Illinois has not unequivocally waived the

protections of the Eleventh Amendment, and Congress has not

abrogated the state’s Eleventh Amendment immunity by enacting §

1983. Quern v. Jordan, 440 U.S. 332, 345 (1979).

The immunity afforded to the states extends to state agencies.

Kroll v. Bd. of Trs. of Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991).

Because the Department is a state agency, Simmons’ Section 1983

claims are barred by the Eleventh Amendment. See Cooper v. Ill.

Dep’t of Human Servs., No. 17-cv-1368-DRH-SCW, 2018 WL

2933482, at *2 (S.D. Ill. June 12, 2018), aff’d as mod., 758 F. App’x

553 (2019). The Court, therefore, dismisses Count IV with

prejudice.

B. Simmons Failed to Allege Standing to Seek Prospective

Injunctive Relief in Counts I and IV and Standing to

Pursue Counts II and III

The Department argues Simmons lacks standing to seek

prospective injunctive relief in Counts I and IV and lacks standing

to pursue Counts II and III. The Department brings a facial

challenge to subject matter jurisdiction because the Department

asserts the allegations in Simmons’ Complaint are insufficient to

show standing. See Silha v. Act, Inc., 807 F.3d 169, 173 (7th Cir.

2015) (explaining a facial challenge argues the plaintiff has not

sufficiently alleged subject matter jurisdiction while a factual

challenge argues that, even if the pleadings were sufficient, there is

in fact no subject matter jurisdiction).

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a

defendant may move for dismissal of a claim for lack of subject

matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When reviewing a

facial challenge, the court must accept as true all well-pleaded

factual allegations and draw all reasonable inferences in favor of the

plaintiff. Silha, 807 F.3d at 173, 174 (noting the court uses the

Twombly-Iqbal plausibility requirement when evaluating facial

challenges to subject matter jurisdiction).

A plaintiff must demonstrate standing for each type of relief he

seeks. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).

To have standing, an individual must meet three requirements: (1)

the individual must have suffered an injury in fact that is both (a)

concrete and particularized and (b) actual or imminent; (2) the

injury must be fairly traceable to the challenged actions; and (3) it

must be likely that a favorable decision will redress the injury.

Sierra Club v. Franklin Cty. Power of Ill., LLC, 546 F.3d 918, 925

(7th Cir. 2008); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 136

S. Ct. 1540, 1547 (2016). To survive the Department’s motion to

dismiss for lack of standing, Simmons must plead “sufficient factual

allegations, taken as true, that ‘plausibly suggest’ each of these

elements.” Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285,

289 (7th Cir. 2016). Pro se complaints are liberally construed.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

The Department first argues Simmons lacks standing to seek

prospective injunctive relief in Counts I and IV because the counts

are based on an incident that occurred during the April 7, 2020

fact-finding conference. The Department asserts this was a

singular event that began and ended on the same day and Simmons

makes no allegations that he will likely attend another fact-finding

conference via phone or that the Department is likely to take similar

discriminatory actions in the future. The Court agrees.

“[T]o establish injury in fact when seeking prospective

injunctive relief, a plaintiff must allege a ‘real and immediate’ threat

of future violations of their rights.” Scherr v. Marriott Int’l, Inc.,

703 F.3d 1069, 1074 (7th Cir. 2013) (finding the plaintiff alleged

standing where she stated she would use the hotel but for the

continuing ADA violations there in light of her past travel history

and desire to stay at the hotel despite the violations). Past exposure

to illegal conduct does not alone show a present case or controversy

for purposes of injunctive relief, unless accompanied by continuing,

present adverse effects. O’Shea v. Littleton, 414 U.S. 488, 495

(1974) (wherein the court was “unable to conclude that the case-or-

controversy requirement is satisfied by general assertions or

inferences that in the course of their activities respondents will be

prosecuted for violating valid criminal laws”). Simmons makes no

such allegations here. That Simmons will again be involved in a

telephone fact-finding conference during a lockdown is not alleged

and entirely speculative. Because he has not alleged a real and

immediate threat of future violations of his rights, Simmons has not

alleged standing for his claims for prospective injunctive relief in

Counts I and IV. Therefore, those claims for relief are dismissed

without prejudice.

The Department also argues Simmons lacks standing to

pursue Counts II and III because he fails to allege the Department’s

policies affect him in a personal way. Again, the Court agrees.

In Counts II and III, Simmons alleges the Department has a

policy, practice, or procedure of (1) telling persons with disabilities

they are not entitled to disability parking and an access aisle (Count

II) and (2) telling public bodies they do not have to provide the

persons with disabilities with disability parking and an access aisle

(Count III). He further alleges in Count III that public bodies have

refused to provide the same based on the practice, policy, or

procedure. Compl. Counts II, III.

Missing from the Complaint are any allegations that Simmons

suffered an injury in fact that is fairly traceable to the Department’s

policy, practice, or procedure. He does not allege he has been

personally injured in any way. See, e.g., Baaske v. City of Rolling

Meadows, 191 F. Supp. 2d 1009, 1014 (N.D. Ill. 2002) (finding the

plaintiff did not meet the constitutional standing requirement where

he did not allege he had been injured in any way but only alleged a

group of disabled persons might be injured by the firehouse

renovation).

Specifically, in Count II, Simmons does not allege an injury in

fact that is traceable to the Department’s alleged actions such that

a favorable decision would redress the injury. Simmons does not

allege the Department told Simmons he was not entitled to

disability parking or access aisles in parking lots open to the public,

that he was denied disability parking or access aisles in parking

lots open to the public, or how he was harmed by such policy,

practice, or procedure. In Count III, Simmons does not allege that

he has suffered an injury, such as being denied disability parking

or use of access aisles by a public body based on advice received

from the Department.

In his response to the motion to dismiss, Simmons states, “I

was denied handicap parking based upon the IDHR policy.” Pl.

Resp. at 1 (d/e 13). The Court can consider allegations made and

exhibits attached in response to a motion to dismiss if they are

consistent with the allegations of the complaint. See Smith v. Dart,

803 F.3d 304, 311 (7th Cir. 2015); Gutierrez v. Peters, 111 F.3d

1364, 1367 n.2 (7th Cir. 1997). However, Simmons’ statement is

merely a conclusory allegation that is not entitled to the

presumption of truth afforded to well-pleaded facts. See United

States ex rel. John v. Hastert, 82 F. Supp. 3d 750, 766 (N.D. Ill.

2015) (“Legal conclusions and conclusory allegations that merely

recite the elements of a claim, like this allegation, are not entitled to

the presumption of truth afforded to well-pleaded facts.”). Simmons

has failed to allege standing in Counts II and III, and those counts

are dismissed without prejudice.

C. Simmons Fails to State a Claim in Counts I, II, and III

The Department also argues Simmons fails to state a claim in

Counts I, II, and III.

A motion under Rule 12(b)(6) challenges the sufficiency of the

complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458

(7th Cir. 2007). To state a claim for relief, a plaintiff need only

provide a short and plain statement of the claim showing she is

entitled to relief and giving the defendants fair notice of the claims.

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

When considering a motion to dismiss under Rule 12(b)(6), the

Court construes the complaint in the light most favorable to the

plaintiff, accepting all well-pleaded allegations as true and

construing all reasonable inferences in plaintiff’s favor. Id.

However, the complaint must set forth facts that plausibly

demonstrate a claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 547 (2007). A plausible claim is one that alleges factual

content from which the Court can reasonably infer that the

defendants are liable for the misconduct alleged. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Merely reciting the elements of a cause

of action or supporting claims with conclusory statements is

insufficient to state a cause of action. Id.

The Department argues that Counts I, II, and III should be

dismissed for failure to state a claim pursuant to Title II of the ADA.

To state a claim under Title II of the ADA, a plaintiff must allege: (1)

he is a qualified individual with a disability; (2) he was either

excluded from participating in, or denied the benefits of, a public

entity’s services, programs, or activities, or was otherwise

discriminated against; and (3) that such exclusion, denial of

benefits, or discrimination was because of his disability. See P.F.

by A.F. v. Taylor, 914 F.3d 467, 471 (7th Cir. 2019); Toledo v.

Sanchez, 454 F.3d 24, 31 (1st Cir. 2006). A Title II claim “may be

established 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. Cmty. Servs., Inc.

v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006) (quoting

Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840,

846 (7th Cir. 1999)). Simmons alleges the Department failed to

provide a reasonable accommodation.

The Department argues Simmons failed to sufficiently allege a

claim in Count I because he is not an “individual with a disability”

and he failed to allege he was excluded from the conference

“because of” his disability. Under the ADA, an individual is not an

“individual with a disability” if he is “currently engaging in the

illegal use of drugs, when the covered entity acts on the basis of

such use.” 42 U.S.C. § 12210(a). The “illegal use of drugs” is

defined as follows:

(1) In general

The term “illegal use of drugs” means the use of drugs, the

possession or distribution of which is unlawful under the

Controlled Substances Act. Such term does not include

the use of a drug taken under supervision by a licensed

health care professional, or other uses authorized by the

Controlled Substances Act or other provisions of Federal

law.

(2) Drugs

The term “drug” means a controlled substance, as defined

in schedules I through V of section 202 of the Controlled

Substances Act.

42 U.S.C. § 12210(d) (emphasis added).

The Ninth Circuit determined, in James v. City of Costa Mesa,

700 F.3d 394, 397 (9th Cir. 2012), that the use of medical

marijuana constitutes the illegal use of drugs under § 12210. In

James, the plaintiffs argued the language in the statute created two

exceptions from the illegal drug exclusion: (1) an exception for drug

use supervised by a licensed healthcare professional carried out

under any legal authority, including state authority and (2) an

exception for drug use authorized by the Controlled Substances Act

or another federal law. Id. at 398. Under the plaintiffs’

interpretation, state-sanctioned, doctor-recommended use of

marijuana is a covered use under the supervised use exception. Id.

The defendants argued the statute created one exception covering

all uses authorized by the Controlled Substances Act (which

authorizes uses that involve professional supervision or uses in

connection with research and experimentation) or other provisions

of federal law. Id.

The Ninth Circuit agreed with the defendants and found that

the use of medical marijuana did not fall within the supervised use

exception of the statute (§ 12210(d)(1)) based on the text, the

legislative history of the ADA, and the relationship between the ADA

and the Controlled Substances Act. Id. at 398, 404. The court

found that Congress intended to define “illegal use of drugs” by

reference to federal, not state law. Id. at 399. The court further

found that “[t]o conclude that use of marijuana for medical

purposes is not an illegal use of drugs under the ADA would

undermine the [Controlled Substances Act’s] clear statement that

marijuana is an unlawful controlled substance that has ‘no

currently accepted medical use in treatment in the United States.’”

Id. at 402 (quoting 21 U.S.C. § 812(1)(B)).

This Court agrees with the reasoning of the James court. The

Controlled Substances Act continues to define marijuana as a

Schedule I controlled substance that “has no currently accepted

medical use in treatment in the United States.” 21 U.S.C. §

812(b)(1)(B), § 821(c)(a)(10). As noted above, an individual with a

disability does not include an individual who is currently engaging

in the illegal use of drugs when the covered entity acts on the basis

of such use. Simmons alleges the Department acted on the basis of

his use of marijuana by failing to accommodate the side effects of

his use of marijuana. As such, Simmons has failed to allege he is

an individual with a disability.

The Court acknowledges that Simmons also alleges the use of

various prescription medications—tizanidine and diclofenac—also

contributed to his fatigue and necessitated his requested

accommodation. However, because the alleged denial of his

requested accommodation was based in part on the use of medical

marijuana and Simmons being uncooperative (insisting on

recording after being told he could not), Simmons also does not

sufficiently allege the discrimination to have occurred due to his

disability. See Wis. Cmty. Servs., 465 F.3d at 754 (noting that a

plaintiff must show that “but for” his disability, he would have been

able to access the services or benefits desired); Ibrahim v. Cty. of

Los Angeles, No. 2:18-cv-6013-CBM-SK, 2019 WL 3064424, at * 2

(C.D. Ca. May 3, 2019) (finding the plaintiff failed to state a claim

where her children were removed due to a positive drug test caused

by Norco and medical marijuana because the ADA requires the

discrimination to have occurred solely because of a disability and

the discrimination was based, at least in part, on the use of medical

marijuana).

The Department also argues Simmons has failed to state a

claim in Counts II and III because he fails to allege he was excluded

from or denied the benefits of the services, programs, or activities of

a public entity or otherwise subjected to discrimination. The

Department argues Simmons does not allege he was denied the

benefit of parking or the use of access aisles at one of the

Department’s facilities or by a public body which acted on the

Department’s advice.

Although the Court dismissed Counts II and III for lack of

standing, the Court also finds Counts II and III fail to state a claim.

Simmons’ allegations in Counts II and III are wholly conclusory and

do not state a claim. Mere recitation of the elements of a claim is

insufficient to state a claim. Reynolds v. CB Sports Bar, Inc., 623

F.3d 1143, 1146 (7th Cir. 2010) (“To survive a motion to dismiss,

the plaintiff must do more than simply recite the elements of a

claim”). Therefore, Counts II and III are also dismissed without

prejudice for failure to state a claim.

V. CONCLUSION

For the reasons stated, the Department’s Motion to Dismiss

(d/e 6) is GRANTED. Counts I, II, and III are dismissed without

prejudice and with leave to amend. Count IV is dismissed with

prejudice. Simmons shall file any amended complaint on or before

October 28, 2021. The Department shall file an answer or

otherwise plead to the amended complaint (if one is filed) or answer

the original complaint (if an amended complaint is not filed) on or

before October 28, 2021.

ENTERED: September 28, 2021

FOR THE COURT:

s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE