Mohammed v. Dupage Legal Assistance Foundation

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ABDUL MOHAMMED, )

)

Plaintiff, )

) Case No. 18 C 2503

v. )

) Judge Jorge L. Alonso

DUPAGE LEGAL ASSISTANCE )

FOUNDATION, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Abdul Mohammed has filed a four-count second amended complaint

against defendants DuPage Legal Assistance Foundation (“DLAF”), Ceclia Najera, and Robin

Roe, alleging violations of the Americans with Disabilities Act (“ADA”) and claims of conspiracy

and intentional infliction of emotional distress. Before the Court is defendants’ motion to dismiss

[19] pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the

motion is granted. Civil case terminated.

BACKGROUND

The Court previously identified several concerns it had with the adequacy of plaintiff’s

complaint and gave him an opportunity to amend. In his second amended complaint, plaintiff

alleges the following facts; the Court accepts them as true for purposes of the instant motion and

draws all reasonable inferences in plaintiff’s favor.

Plaintiff’s allegations are lengthy and, at times, incoherent. He is in the midst of divorce

proceedings with his wife in DuPage County. Plaintiff says that he is indigent and, therefore,

sought legal assistance from DLAF. DLAF is a 501(c)(3) not for profit corporation and is the only

source of legal aid in DuPage County. DLAF assigned defendant Cecilia Najera to assist plaintiff

with his divorce proceedings. Ms. Najera represented plaintiff for several months and then

withdrew as counsel.1 Plaintiff returned to DLAF, and the office manager, defendant Roe,

informed plaintiff that he could not apply for legal aid without approval from the board of

directors.2 Plaintiff then filed this suit.3 He alleges that defendants violated Titles II and III of the

ADA by discriminating against him based on his gender and emotional disabilities, engaged in a

civil conspiracy of harassment and intimidation, and intentionally caused him severe emotional

distress. Defendants move to dismiss, arguing that Titles II and III of the ADA do not apply to

them and that plaintiff has failed to sufficiently plead his claims.

1 Plaintiff says that Ms. Najera’s reason for withdrawing as counsel – that his financial affidavit

was incomplete – was simply a pretext. (Dkt. 18, ¶¶ 47-53.) He generally claims that Ms. Najera

disrespected, harassed, and verbally abused him based on his gender and emotional disabilities. He

says that he sought reasonable accommodation from Ms. Najera and asked that she not (a) yell and

shout at him; (b) hurl verbal abuse and profanity at him; (c) disrespect him; (d) advocate for his

wife; (e) advocate for the Hamdard Center, an entity that he was suing; (f) protect and advocate for

her former clients who filed numerous false police reports, false DCFS reports, and numerous false

actions against him; (g) call him a criminal; and (h) inflict intentional emotional distress. (Dkt. 18,

¶ 38.) He goes on to say that Ms. Najera is “a pathological liar by the soul and to the core,” that

“[i]f there is a human being on the planet earth who comes anywhere close to be [sic] a wild animal,

that is [Ms. Najera]. Even wild animals look after their fellows in distress as seen on Animal Planet

and Nat Geo Wild,” and that Ms. Najera “is unfit to live in a civilized society.” (Dkt. 20, p. 12, ¶¶

109-110.) Curiously, he further complains about the attorneys representing Ms. Najera in the

instant suit, claiming that “Defendant’s Lead Counsel sits in his cozy office and mischaracterizes

Statutes, Laws and Facts in a willful and reckless manner and his sidekick appears in Court and lies

with a straight face.” (Id. ¶ 125.)

2 Defendants denied plaintiff’s legal aid application on April 20, 2018, after he had initiated this

suit. (Dkt. 18, ¶ 57.)

3 Plaintiff has recently filed similar lawsuits in this district regarding his dissatisfaction with his

divorce proceedings in DuPage County. All of his complaints have been dismissed. See, e.g.,

Mohammed v. Hamdard Ctr for Health and Human Servs, et. al., Case No. 18 C 2638 (N.D. Ill.

Apr. 18, 2018) (Gettleman, J.) (finding plaintiff’s claims that defendants violated Titles II and III

of the ADA frivolous in that plaintiff failed to tie any of defendants’ actions to plaintiff’s alleged

disability (diabetes)); Mohammed v. Prairie State Legal Services, Inc., et. al., Case No. 18 C 4248

(N.D. Ill. June 22, 2018) (Guzman, J.) (finding plaintiff’s claims that defendants discriminated

against him based on his disabilities (diabetes, anxiety, depression, and insomnia) and denied him

legal aid in violation of the ADA, conspired to harass him, and intentionally inflicted emotional

distress upon him to be frivolous).

STANDARD

The purpose of a Rule 12(b) motion to dismiss is to test the sufficiency of the complaint,

not decide the merits of the case. Derfus v. City of Chi., 42 F. Supp. 3d 888, 893 (7th Cir. 2014).

To survive a motion to dismiss pursuant to Rule 12(b)(6), a pleading that purports to state a claim

for relief must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this

standard when its factual allegations “raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555-56; see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)

(“[P]laintiff must give enough details about the subject-matter of the case to present a story that

holds together.”). For purposes of a motion to dismiss, the Court accepts “as true all of the well-

pleaded facts in the complaint and draws all reasonable inferences in favor of the plaintiff.” Platt

v. Brown, 872 F.3d 848, 851 (7th Cir. 2017). “A document filed pro se is to be liberally construed,

… and a pro se complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers. Beal v. Beller, 847 F.3d 897, 902 (7th Cir. 2017).

DISCUSSION

As an initial matter, plaintiff improperly attempts to add two new § 1983 claims (a class-

of-one equal protection claim and a substantive due process claim) in his response to defendants’

motion to dismiss. (See dkt. 20, ¶¶ 122, 123.) Plaintiff may not, however, amend his complaint

by raising new claims in his response to defendants’ motion to dismiss. Wooley v. Jackson Hewitt,

Inc., 540 F. Supp. 2d 964, 972 (N.D. Ill. Mar. 25, 2018). Accordingly, the Court will not consider

these claims or any new arguments raised by plaintiff in his response to defendants’ motion to

dismiss.

Counts I and II – ADA Violations

Plaintiff alleges that defendants violated Titles II and III of the ADA when they denied him

legal aid and legal representation based on his gender and emotional disabilities. 42 U.S.C. §§

12132, 12182. The ADA prohibits discrimination against persons with disabilities. Ashby v.

Warrick Cty. Sch. Corp., 908 F. 3d 225, 230 (7th Cir. 2018). Title II forbids discrimination related

to public services, programs, and activities, whereas Title III forbids discrimination related to

public accommodations. Id. Defendants first move to dismiss, arguing that plaintiff’s claims fail

because Titles II and III of the ADA do not apply to them as alleged. The Court agrees.

To establish a claim under Title II of the ADA, plaintiff must show that (1) he is a qualified

individual with a disability as defined by the statute; (2) he was excluded from a benefit provided

by the public entity; and (3) the exclusion was because of his disability. United States v. N. Ill.

Special Recreation Ass’n, 168 F. Supp. 3d 1082, 1091 (N.D. Ill. Mar. 2, 2016); 42 U.S.C. §12132.

Defendants first say that they are not considered a public entity within the meaning of the ADA.

A “public entity” is defined under the ADA as “(a) any State or local government; (b) any

department, agency, special purpose district, or other instrumentality of a State or States or local

government; and (c) the National Railroad Passenger Corporation, and any commuter authority

(as defined in section 24102(4) of Title 49).” 42 U.S.C. §12131(1). In his second amended

complaint, plaintiff alleges that DALF is a 501(c)(3) not for profit corporation. He says that Ms.

Najera’s status as a Guardian Ad Litem and licensed attorney makes her an officer of the DuPage

County Circuit Court. He further says that Ms. Najera is a contractor of the DuPage County Circuit

Court. Plaintiff makes no allegation as to Ms. Roe. These allegations are insufficient to show that

defendants are a public entity under Title II of the ADA. And plaintiff has provided the Court with

no persuasive authority to suggest otherwise.

Defendants next argue that plaintiff has failed to allege that he has a qualified disability as

defined under the ADA. A person is considered to have a disability when that person has “(i) a

physical or mental impairment that substantially limits one or more of the major life activities of

such individual; (ii) a record of such an impairment; or (iii) being regarded as having such an

impairment as described in paragraph (f) of this section.” 28 C.F.R. § 36.105(a)(1). While plaintiff

says that he has an emotional disability, he fails to show how defendants allegedly discriminated

against him on the basis of his emotional disability. In other words, plaintiff does not provide a

connection between defendants’ behavior and his disability. See also, Mohammed v. Hamdard

Ctr for Health and Human Servs, et. al., Case No. 18 C 2638 (N.D. Ill. Apr. 18, 2018) (Gettleman,

J.) (finding plaintiff’s claims that defendants violated Titles II and III of the ADA frivolous in that

plaintiff failed to tie any of defendants’ actions to plaintiff’s alleged disability (diabetes));

Mohammed v. Prairie State Legal Services, Inc., et. al., Case No. 18 C 4248 (N.D. Ill. June 22,

2018) (Guzman, J.) (finding plaintiff’s claims that defendants discriminated against him based on

his disabilities (diabetes, anxiety, depression, and insomnia) and denied him legal aid in violation

of the ADA, conspired to harass him, and intentionally inflicted emotional distress upon him to be

frivolous).

For these reasons, the Court finds that plaintiff has failed to plausibly allege an ADA

violation, and Counts I and II are dismissed.

Counts III and IV – State Law Claims

The only remaining claims are plaintiff’s state law claims. A district court may decline to

exercise supplemental jurisdiction over a state law claim if “the district court has dismissed all

claims over which it has original jurisdiction.” 28 U.S.C. 1367(c)(3). Considering that this case is

still in its early stages and a new judge will not have to redo work this Court has already done, the

Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims.

CONCLUSION

For the aforementioned reasons, defendants’ motion to dismiss [19] is granted. Civil case

terminated.

Date: 1/31/2019 =

Jorge L. Alonso

United States District Judge