Firszt v. Bresnahan

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NEIL RICHARD FIRSZT, )

)

) Case No. 21-cv-6798

Plaintiff, )

) Judge Sharon Johnson Coleman

v. )

)

TERRI BRESNAHAN, Superintendent of )

Schools, Community Consolidated School )

District 59, Elk Grove Village, Illinois, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Neil Richard Firszt, on behalf of his minor child, challenges defendant

Illinois Community Consolidated School District 59’s (the “District’s”) implementation of Governor

Jay Pritzker’s mandatory Executive Order 2021-18 (“EO21-18”), which states that all public and

nonpublic K-12 schools must require “the indoor use of face coverings by students, staff, and

visitors who are over age two.” Because Firszt has failed to state a claim upon which relief can be

granted, the Court dismisses his complaint in its entirety. A separate basis for the Court’s dismissal

of Firszt’s complaint is that, as a pro se litigant, he cannot bring this lawsuit on behalf of his minor

child. See Elustra v. Mineo, 595 F.3d 699, 705 (7th Cir. 2010). In other words, a non-attorney parent

must be represented by counsel to bring an action on behalf of his child. See Foster v. Board of Educ. of

City of Chicago, 611 Fed.Appx. 874, 877 (7th Cir. 2015).

Background

On July 23, 2021, pursuant to his authority under the Illinois Constitution and Section 7 of

the Illinois Emergency Management Agency Act (“IEMAA”), 20 ILCS 3305/1, et seq., Governor

Pritzker issued a disaster proclamation for the State of Illinois. In that proclamation, the Governor

noted that “despite efforts to contain COVID-19, the virus has continued to spread rapidly.” From

this proclamation, Governor Pritzker issued EO21-18 on August 4, 2021, which states in relevant

part: “All public and nonpublic schools in Illinois serving pre-kindergarten through 12th grade

students must follow the joint guidance issued by ISBE [Illinois State Board of Education] and

IDPH [Illinois Department of Health] and take proactive measures to ensure the safety of students,

staff, and visitors, including, but not limited to:”

a. Requiring the indoor use of face coverings by students, staff, and visitors who are over

age two and able to medically tolerate a face covering, regardless of vaccination status,

consistent with CDC guidance; and

b. Implementing other layered prevention strategies (such as physical distancing, screening

testing, ventilation, handwashing and respiratory etiquette, advising individuals to stay

home when sick and get tested, contact tracing in combination with appropriate

quarantine and isolation, and cleaning and disinfection) to the greatest extent possible

and taking into consideration factors such as community transmission, vaccination

coverage, screening testing, and occurrence of outbreaks, consistent with CDC guidance.

Construing plaintiffs’ pro se complaint liberally, see Harris v. United States, 13 F.4th 623, 627

(7th Cir. 2021), Firszt alleges that the District has violated his son’s right to bodily integrity under

the substantive due process clause of the Fourteenth Amendment by implementing Governor

Pritzker’s mask mandate under EO21-18. He also alleges violations of the free exercise clause of the

First Amendment and the Americans with Disabilities Act (“ADA”). He seeks $7,000,000.01 in

damages.

Legal Standard

Under 28 U.S.C. § 1915(e)(2)(B), even if a pro se plaintiff has paid the filing fee, the Court

has the authority to screen his claims to determine whether the action he alleges is frivolous or

malicious, fails to state a claim on which relief may be granted, or if it is seeking damages from a

defendant who is immune. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see also Jones v. Bock, 549 U.S. 199,

214, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (grounds for sua sponte dismissal set forth in 28 U.S.C. §

1915(e)(2)(B)).

Discussion

Substantive Due Process

The Court first turns to plaintiffs’ substantive due process claim. As stated, plaintiff alleges

that EO21-18 and the District ’s adoption of this executive order contravenes the substantive due

process clause by violating his son’s right to privacy via his fundamental liberty interest in his bodily

integrity. Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). “To

allege a viable substantive due process claim, [plaintiff] would need to allege conduct under color of

state law that ‘violated a fundamental right or liberty’ that was so ‘arbitrary and irrational’ as to

‘shock the conscience.’” Nelson v. City of Chicago, 992 F.3d 599, 604 (7th Cir. 2021); see also Campos v.

Cook County, 932 F.3d 972, 975 (7th Cir. 2019 ) (“Substantive due process protects against only the

most egregious and outrageous government action.”).

Firszt has failed to plausibly allege that the mask mandate in Illinois schools, which was

enacted to prevent the spread of the deadly coronavirus among students, teachers, faculty, and

visitors, is so egregious and outrageous as to shock the conscience. Indeed, the Court would be

hard-pressed to conclude that the Governor’s executive order, which is intended to save lives during

an ongoing public health crisis that has taken at least 840,000 American lives, amounts to egregious

or outrageous conduct. The Court is not alone in this conclusion. See Parker v. Wolf, 506 F.Supp.3d

271, 291 n.20 (M.D. Pa. 2020) (mask mandate and tracing program, “at worst, [are] minor and

fleeting inconveniences, especially when compared to the widespread infectiousness and death that

Defendants credibly seek to avoid through these two orders.”). Therefore, plaintiff has failed to

allege a substantive due process claim.

First Amendment

Furthermore, Firszt asserts that the District’s adoption of the mask mandate violated his

son’s right to the free exercise of religion contained in the First Amendment. “The principle that

government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on

conduct motivated by religious belief is essential to the protection of the rights guaranteed by

the Free Exercise Clause.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543,

113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Nevertheless, “the right of free exercise does not relieve an

individual of the obligation to comply with a ‘valid and neutral law of general applicability on the

ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”

Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d

876 (1990) (citation omitted). The “[g]overnment fails to act neutrally when it proceeds in a manner

intolerant of religious beliefs or restricts practices because of their religious nature.” Fulton v. City of

Philadelphia, 141 S.Ct. 1868, 1877, 210 L.Ed.2d 137 (2021). A “neutral law of general applicability is

constitutional if it is supported by a rational basis.” Illinois Bible Coll. Assoc. v. Anderson, 870 F.3d 631,

639 (7th Cir. 2017).

Here, Firszt has not plausibly alleged how the mask mandate placed a substantial burden on

his son’s exercise of his religion in the context of the school setting. Moreover, on its face, the mask

mandate is a neutral law of general applicability because it equally applies to all school-aged children

regardless of their religious belief or affiliation. The mandate does not single out a particular

religious belief nor does it restrict practices because of their religious nature. Under the

circumstances, the mask mandate has a rational basis due to the severity of the COVID-19

pandemic and the need to prevent the spread of the disease. As such, Firszt’s free exercise claim is

without merit.

ADA Claim

Firszt also alleges that individuals with breathing difficulties who are not able to wear face

coverings are protected by the ADA. See 28 C.F.R. § 36.105. Firszt, however, fails to allege that his

son has breathing difficulties or how the ADA applies to his son. Also, as discussed, Firszt cannot

bring this ADA claim on behalf of his son due to Firszt’s pro se status. See Georgakis v. Ill. State

Univ., 722 F.3d 1075, 1077 (7th Cir. 2013) (“A nonlawyer can’t handle a case on behalf of anyone

except himself.”).

Article III Standing

Next, Firszt does not have Article III standing to challenge EO21-18 and the District’s

adoption of that executive order. “Article III of the Constitution limits the federal judicial power to

deciding ‘Cases’ and ‘Controversies’” and “as an essential part of a federal court’s authority under

Article III, [the] standing doctrine ensures respect for these jurisdictional bounds.” Prairie Rivers

Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021). To establish standing

under Article III, plaintiff must show: (1) an injury-in-fact; (2) that is fairly traceable to the

defendants’ conduct; and (3) that is likely to be redressed by a favorable judicial decision. Protect Our

Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 729 (7th Cir. 2020) (Barrett, J.).

Firszt has not fulfilled the injury-in-fact component of Article III standing, which requires

that the harm be “concrete and particularized” and “actual or imminent.” Prosser v. Becerra, 2 F.4th

708, 713 (7th Cir. 2021), because he has failed to plausibly allege a constitutional claim or claim

under the ADA. Moreover, Firszt’s allegations fail to assert a particularized injury that affects his

son “in a personal and individual way,” but instead he alleges a “generalized grievance” shared by all

parents of K-12 school children in Illinois. See Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146,

1152 (7th Cir. 2020). Accordingly, Firszt does not have standing to bring claims against defendants.

Vaccine Status

Last, Firszt takes issue with the District’s promotion of vaccines and “vaccine propaganda.”

Firszt has plead himself out of court because he has attached the District’s August 17, 2021 email to

him explaining that the District does not have vaccine or Covid testing mandates. See O’Gorman v.

City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015) (a plaintiff “can plead himself out of court by

including factual allegations that establish that the plaintiffis not entitled to relief as a matter of

law.”).

Conclusion

For these reasons, the Court, sua sponte, dismisses plaintiffs complaint for failure to state a

claim. Crvil case terminated.

TT IS SO ORDERED.

Date: 1/14/2022

Entered: i i

SHARON JOHNSON COLEMAN

United States District Judge