Simmons v. Village of Minier

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

KENNETH SIMMONS, )

)

Plaintiff, )

)

v. ) Case No. 20-cv-1357-JES-JEH

)

VILLAGE OF MINIER, )

)

Defendant. )

ORDER AND OPINION

This matter is now before the Court on Defendant’s Fed. R. Civ. P. 11 Motion for

Sanctions and for attorney’s fees under the Americans with Disabilities Act (“ADA”). (Doc. 26).

Plaintiff has responded and Defendant, with leave of Court, has filed a reply. Plaintiff

subsequently filed (Doc. 30) which is captioned “Motion for Sanctions,” but which appears to be

a sur-reply to Defendant’s Motion for Sanctions. For the reasons set forth below, Defendant’s

Motion (Doc. 26) is granted in part and denied in part, with Defendant to file an itemized

accounting. To the extent (Doc. 30) is construed as a sur-reply, it is denied.

BACKGROUND

Plaintiff, who has been granted in forma pauperis status and is proceeding pro se, filed

his initial complaint on October 19, 2020. Plaintiff pled, in relevant part, that the Village of

Minier (“Minier”), violated the ADA when it temporarily moved its board meetings to the Good

Shephard Lutheran Church (“Church”) in Minier, Illinois to accommodate Covid-related social

distancing. Plaintiff, who is disabled, travelled to the Church for a September 1, 2020 board

meeting but was unable to park in any of the three handicap parking spaces because they were

allegedly not ADA-compliant. Plaintiff requested relief in the form of costs, plus such additional

relief as necessary to make him “whole.” Defendant responded with a motion to dismiss (Doc.

9), which construed the requested relief as one for money damages under the ADA. Plaintiff

responded, and did not deny this characterization.

Defendant’s motion to dismiss asserted, in part, that Plaintiff could not proceed in an

ADA claim for money damages as he had not pled intent or deliberate indifference by Minier.

That is, Minier knew Plaintiff was disabled, knew of the inaccessible parking, and knew that it

would prevent Plaintiff attending the meeting. Defendant also asserted Plaintiff could not

proceed on the ADA claim for injunctive relief as to a single meeting where he had not alleged

that other meetings would be held at the Church, and he intended to appear there. Plaintiff filed a

response (Doc. 15), affirmatively stating that he was requesting $1000 in actual damages and that

it was his intent to attend future board meetings. Plaintiff also requested, and was granted, leave

to amend.

On June 7, 2021, Plaintiff filed an amended complaint where he largely repeated the

allegations of his prior complaint, including, “On 9-1-2020, Plaintiff requested to address the

Minier board of trustees during their board meeting.” (Doc. 1 at par. 1) (Doc. 16 at par. 3).

Plaintiff requested $1,000 as damages, but again failed to plead that Minier had notice of the

parking issue so as to be liable for compensatory damages under the ADA. Plaintiff also pled that

he intended “to return to address the board if and when the board meetings are ADA complaint.”

(Doc. 16 par. 16).

Defendant filed a Motion to Dismiss the amended complaint (Doc. 17), reasserting that

Plaintiff could not obtain money damages under the ADA where he failed to plead that

Defendant were aware of, and deliberately indifferent to the parking issue. Defendant also

provided the affidavit of Minier Mayor Neill Keneipp, attesting that as of June, 2021, the board

meetings were once again being held at the Village Hall. Defendant asserted that this defeated

any claim for prospective injunctive where Plaintiff had not pled the likelihood that the meetings

would, again, be held at the Church.

Plaintiff did not respond to this motion to dismiss, and the Court dismissed the amended

complaint, finding that the allegations “were insufficient to establish Defendant’s conduct was

intentional or done with deliberate indifference” for purposes of ADA compensatory damages.

Id. at 4. The Court also found that Plaintiff waived the claim for injunctive relief when he did not

respond or assert a likelihood that the meetings would be held at the Church at a future date. See

Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (finding that a litigant waives an

issue which is the subject of a motion to dismiss if he does not respond to it). The Court granted

Defendant’s motion to dismiss and dismissed the request for injunctive relief with prejudice.

(Doc. 19 at 4). Plaintiff was given leave to replead, and cautioned that a second amended

complaint was to comply with the instruction provided in the order and was to comply with the

Federal and Local Rules.

On November 22, 2021, Plaintiff filed a second amended complaint, requesting costs and

such relief as to make him whole. Rather than repeating the allegations of the prior two

pleadings, that on September 1, 2020 he had asked to address the board; he pled that on August

19, 2020, he sent an email requesting to address the board. [Doc. 20 at par. 3]. The attached

email entirely consisted of two sentence fragments: “Address board” “At next meeting.” This, of

course, was not materially different from the allegations in his two prior complaints, as it did not

provide notice to Minier that Plaintiff was disabled, had encountered an issue with the

handicapped-accessible parking at the Church, and wished to address the board on this issue.

(Doc. 20 at 3). Plaintiff also reiterated his request for injunctive relief, asking that the Court order

that Minier only conduct meetings at ADA-complaint facilities with ADA-compliant parking.

The Court makes note here, that despite Plaintiff’s claim that the August 19, 2020 email

served notice on Minier, Plaintiff does not plead that even he was aware, on August 19, 2020,

that the Church’s handicapped parking was inadequate, so as to have recognized this issue at the

time the email was sent. Plaintiff had pled in his three complaints that he encountered this

problem on September 1, 2020, when he tried unsuccessfully to exit his car for the board

meeting, not that he had encountered it before.

Defendant moved to dismiss the second amended complaint (Doc. 21), noting, while

Plaintiff did not reiterate his requests for $1000 in actual damages, he appeared to seek money

damages, requesting relief which would make him whole. Defendant reiterated that Plaintiff had

not pled intentional conduct by Minier, for it to be liable for money damages under the ADA.

Defendant also addressed Plaintiff’s repled claim for injunctive relief, asserting Plaintiff’s

general failure to allege that future board meetings would revert to the Church and the Court’s

prior ruling that this issue had been waived.

Plaintiff filed a response (Doc. 23), generally asserting that his second amended

complaint was adequate. He also disputed that he had requested money damage, asserting:

“FURTHER, Defendant argues against actual damages EVEN THOUGH I DID NOT REQUEST

THEM,” and “I have not asked for actual damages…” (Doc. 23 1-2). On February 3, 2022, the

Court entered an order finding Plaintiff had failed to plead intent for purposes of money damages

under the ADA. To the extent that Plaintiff’s response was credited as disavowing a claim for

monetary relief, he was left only with a claim for injunctive relief which had been dismissed on

November 1, 2021 due to waiver. The Court dismissed the second amended complaint with

prejudice.

As noted, Plaintiff has filed a “Motion for Sanctions” (Doc. 30) which appears to be a

sur-reply to Defendant’s Motion for Sanctions. (Doc 26). Plaintiff asserts that he is poor, he is

behind in his rent, he cannot pay utilities and that Defendant “cannot get blood out of a turnip.”

Plaintiff also asserts that he will file for bankruptcy and be unable pay the fees he owes to the

Village of Minier, thus causing Defendant further economic injury. As (Doc. 30) is construed as a

sur-reply, filed without leave, it is denied and was not further considered by the Court.

DISCUSSION

Defendant notes that, as the prevailing party, it is entitled to reasonable attorney’s fees,

litigation expenses, and costs under §12205 of the ADA.1 Defendant asks that Plaintiff be

ordered to pay attorney’s fees of $ 1,584.00, the costs incurred in drafting the Motions to Dismiss

the amended and second amended complaints. In addition, Defendant asks that Plaintiff be

sanctioned under Fed. R. Civ. P. 11 and the Court’s inherent authority. Defendant asserts Plaintiff

has a history of engaging in frivolous and vexatious litigation, having filed 42 lawsuits; and has

made a campaign of “ADA lawsuits against small municipalities and unsuspecting property

owners in central Illinois for alleged violations.” (Doc. 26 at 7-8). Defendant asks that Plaintiff

be sanctioned with a monetary penalty in the amount of the filing fee which was waived based

on his in forma pauperis status; and a ban from filing any further lawsuits against Minier, or any

other municipality, until the monetary penalties are paid in full.

ATTORNEY’S FEES UNDER THE ADA

The ADA provides the provision of attorney’s fees at 42 U.S.C. § 12205:

In any action or administrative proceeding commenced pursuant to this chapter,

the court or agency, in its discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee, including litigation expenses, and costs,

1 A party winning a motion to dismiss is considered the prevailing party. Adkins v. Briggs & Stratton Corp., 159 F.3d

306, 307 (7th Cir. 1998).

and the United States shall be liable for the foregoing the same as a private

individual.

Id.

As noted, under § 12205, the court may in its discretion, award attorney’s fees to the

prevailing party. Awarding attorney’s fees is appropriate only when the suit is brought in bad

faith or when it is “frivolous, unreasonable, or without foundation. The mere fact that a plaintiff

loses his case is not a sufficient justification for the assessment of fees against him.” Baaske v.

City of Rolling Meadows, 191 F. Supp. 2d 1009, 1018 (N.D. Ill. 2002) (citing Vitug v. Multistate

Tax Comm'n, 883 F.Supp. 215, 218 (N.D. Ill. 1995)). The Court does not find that Plaintiff’s

ADA claim, when initially filed, was brought in bad faith, or evidenced frivolousness. The Court

finds differently, however, as to Plaintiff’s persistence in filing a second amended complaint

where two materially identical prior complaints had been dismissed, as discussed below.

SANCTION UNDER RULE 11 AND THE COURT’S INHERENT AUTHORITY

When a party files pleadings with the court he certifies that to the best of his belief, his

“claims, defenses, and other legal contentions are warranted by existing law ...” Fed. R. Civ. P.

11(b)(2). Rule 11 “appl[ies] to anyone who signs a pleading, motion or other paper[,]” including

pro se parties. Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir. 1990) (assessing

attorney’s fees against pro se litigant for asserting a frivolous claim). In addition, the Court has

the power, under its inherent authority, to sanction a party who engages in vexatious litigation.

Carr v. Tillery, 591 F.3d 909, 919 (7th Cir. 2010).

Plaintiff was apparently unable to plead facts to support that Minier had notice of the

Church’s allegedly non-compliant parking, but nonetheless filed a second amended complaint

repeating the same uncorrected defect. See Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)

(quoting Neitzke v. Williams, 490 U.S. 319, 328) (1989) (“An action has no arguable legal basis

when the defendant is immune from suit or when plaintiff claims a violation of a legal interest

which clearly does not exist.”). While Plaintiff disavows requesting money damages in his

second amended complaint, Plaintiff does not explain what other relief would make him whole,

and did not dispute it when a prior identical request had been construed as one for money

damages.

In addition, Plaintiff repled a claim for injunctive relief which had been previously

dismissed with prejudice. See Dix v. Edelman Fin. Services, LLC, 978 F.3d 507, 521 (7th Cir.

2020), cert. denied, 141 S. Ct. 2658 (2021), reh’g denied, 141 S. Ct. 2890 (2021) (finding “that

pro se litigants are not excused from the monetary sanctions available under Federal Rule of

Civil Procedure 11…”) See also, Mohammed v. Anderson, 833 Fed. Appx. 651, 655 (7th Cir.

2020), cert. denied, 141 S. Ct. 1242 (2021) (finding it proper to assess attorneys’ fees against pro

se plaintiff who exhibited bad faith and willful misconduct).

The Court notes that the specter of sanctions is not new to Plaintiff as he had been

threatened with sanctions in Simmons v. Hackney, No. 16-1100 (C.D.Ill. Apr. 20, 2016) and

sanctioned in Simmons v. Stockstill, No. 10-02167, 2010 WL 3938193, at *9 (C.D. Ill. Oct. 4,

2010) (dismissing complaint with prejudice under Rule 11). There, the court found that Plaintiff

Simmons’ complaint which relied on facts previously dismissed in an earlier case was barred by

res judicata. The court found:

Plaintiff's complaint appears to be patently without merit and designed to harass

Defendants, to cause the unnecessary burden of defense of a patently malicious

lawsuit, and to vexatiously and contumaciously multiply proceedings that are a

waste of judicial resources. Plaintiff's claims against most Defendants are clearly

barred by res judicata or a statu[t]e of limitations notwithstanding the artful

pleading that attempts to now claim a conspiracy.

Id. at *3.

The Court finds Plaintiff’s serial pleading of essentially identical and insufficient claims

was vexatious and malicious. The Court notes that Defendant was obligated to incur attorney’s

fees to respond to successive pleadings reasserting claims previously dismissed. Defendant

requests reimbursement of the attorney’s and paralegal fees associated with the motions to

dismiss both the amended and second amended complaints.

The Court is cognizant of Plaintiff’s pro se status, however, and does not find his

behavior necessarily vexatious or malicious until the filing of the second amended complaint, as

then he was clearly on notice of the deficiencies and, still, pled them a third time. “[W]hen a

layman persists in a hopeless cause long after it should have been clear to him, as a reasonable

(though not law-trained) person, that his cause was indeed hopeless, sanctions should be

imposed....” Ghosh v. Lindley, 4 F.3d 996 (7th Cir. 1993) (citing Bacon v. American Federation

of State, County and Municipal Employees Council, # 13, 795 F.2d 33, 35 (7th Cir. 1986)).

The Court grants Defendant’s Motion (Doc. 26), to the extent that it will assess

reasonable attorney’s fees against Plaintiff for those amounts incurred in the filing of the third

motion to dismiss (Doc. 21). The motion is otherwise denied. Defense counsel is, within 14 days

of this order, to submit an itemized account of the time spent and amounts owed for drafting that

particular motion. Plaintiff will have 14 days thereafter in which to respond.

IT IS THEREFORE ORDERED:

1. The Court grants Defendant’s Motion (Doc. 26), to the extent that it will assess

against Plaintiff the reasonable attorneys’ fees incurred for the filing of the third motion to

dismiss (Doc. 21), with that amount to be determined after Defense counsel submits an itemized

account. Plaintiff will have 14 days thereafter in which to respond.

2. Plaintiff’s filing incorrectly captioned as a Motion for Sanctions (Doc. 30), is

denied.

Signed on this 20th day of May, 2022.

s/James E. Shadid___________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE