Porch v. University of Illinois College of Medicine

‘IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EBONE PORCH, )

Plaintiff, Case No. 21-cv-3848

v. Judge Robert M. Dow, Jr.

UNIVERSITY OF ILLINOIS at

CHICAGO, SCHOOL OF MEDICINE, )

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Ebone Porch brings this action against Defendant Board of Trustees of the

University of Illinois! (“Defendant” or the “University”) alleging violations of Title III of the

Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, the Illinois

Human Rights Act, and constitutional violations pursuant to 42 U.S.C. § 1983. Before the Court

is Defendant’s motion to dismiss [9] all claims pursuant to Federal Rule of Civil Procedure

12(b)(6). For the reasons stated below, Defendant’s motion [9] is granted. Count III is dismissed

with prejudice based on Plaintiff's concession that sovereign immunity bars a Section 1983 suit

against Defendant. Count V also is dismissed with prejudice as a declaratory judgment is

unnecessary and redundant in view of Counts I and II, which provide an adequate vehicle to

pronounce any rights Plaintiff may have under the ADA and Rehabilitation Act vis-a-vis the

named Defendant. In an abundance of caution, Counts I and II are dismissed without prejudice

and with leave to file a motion for leave to file an amended complaint no later than September 1,

' Plaintiff names “University of Illinois at Chicago, School of Medicine” as the Defendant, but any actions

against the University of Illinois are to be brought against the Board of Trustees of the University of Illinois.

See 110 Ill. Comp. Stat. 305/1; see also Wilson v. Integrated Med. Sys., Inc., 2016 WL 4734362, at *1 n.2

(N.D. IIL. Sept. 12, 2016).

2022, if Plaintiff believes an amended complaint is maintainable consistent with this opinion and

Federal Rule of Civil Procedure 11. Ifno motion for leave to amend is filed by that date, or if any

such motion is denied, the dismissal of Counts I and II will convert to with prejudice. In view of

the dismissal of all of Plaintiff's federal claims, the Court is inclined to decline supplemental

jurisdiction over the state law claim set out in Count IV, but will not formally dismiss that claim

without prejudice until it can rule on a motion for leave to amend the federal claims.

I. Background?

Plaintiff Ebone Porch is a permanent resident of Illinois and a former medical student at

the University of Illinois at Chicago School of Medicine. [1 at 7 4, 6.] The University of Illinois

at Chicago School of Medicine, is one of the largest medical schools in the country. [/d. at □ 5.]

Plaintiff enrolled at the University in August 2009. [/d. at J 9.] Plaintiff suffers from multiple

disabilities, including Attention-Deficit/Hyperactivity Disorder, learning disabilities, and

generalized anxiety disorder. [/d. at { 7.] Plaintiff has been evaluated by clinicians who have

recommended that she receive extended time testing accommodations while in school. [/d. at J 8.]

Plaintiff's claims arise from her obligation to complete the United States Medical

Licensing Examination (USMLE), which is a three-step examination for medical licensure in the

United States. [1 at 4 30.] The USMLE is sponsored by the Federation of State Medical Boards

(FSMB) and the National Board of Medical Examiners (NBME). [/d.] The test is designed to

assess a physician’s ability to apply knowledge, concepts, and principles and to demonstrate

fundamental patient-centered skills necessary to perform safe and effective patient care. [/d.]

Anyone seeking to obtain a medical license in the United States must pass all three steps of the

* For purposes of Defendant’s motion to dismiss, the Court accepts as true all well-pled allegations set forth

in the complaint [1] and draws all reasonable inferences in Plaintiff's favor. Calderon-Ramirez v.

McCament, 877 F.3d 272, 275 (7th Cir. 2017).

examination; no step can stand alone in the assessment of readiness. [J/d. |

The NBME develops Step 1 of the USMLE, which is administered on a number of dates

throughout the year at a variety of test sites throughout the United States. [1 at 32.] Step 1 isa

one-day examination that is divided into seven 60-minute blocks during one 8-hour testing session.

at 31.] The number of questions per 60-minute testing block varies but will not exceed 40,

and the total number of questions for the overall examination will not exceed 280. [/d.] Test scores

are reported to each student’s medical school. [/d. at § 32.] Plaintiff must pass Step 1 to maintain

her eligibility for medical school, and poor performance on the examination may adversely affect

Plaintiff's chances of being accepted into a residency training program. [J/d. at § 33.]

In a letter dated October 4, 2018, Plaintiff was informed that she needed to take and pass

the Step 1 by April 6, 2019. [1 at § 10.] The following day, October 5, 2018, Plaintiff “tendered a

letter to begin the request for accommodations.” [/d. at § 11.] In her letter, she requested that

Defendant provide her instructions on applying for and obtaining testing accommodations. [/d.]

According to the complaint, Plaintiff requested instructions again on October 9, 2018, and again

on October 23, 2018. [/d.] Plaintiff claims that she was unable to pass the USMLE Step | by the

April 6, 2019 deadline “because Defendant did not notify her of the exam date, which was in

March of 2019, with enough time for her to have six months before the scheduled examination to

request extended time accommodations.” [/d. at J 12.]

On November 2, 2018, “[flinally, Plaintiff was allowed to submit the Medical Student

Disability and Accommodations documentation” [id. at §] 11], which she did by letter addressed to

the UIC Office of Access and Equity (OAE) requesting “testing accommodations for the USMLE

Step 1 to be administered in March of 2019” [id. at § 15]. Plaintiff submitted letters from her

psychologist, psychiatrist, and family practitioner, all of whom supported her request for extra time

to complete the examination due to her medical conditions. [/d. at § 13.] Plaintiff asserts that the

submitted documentation “substantially complies with the Defendant’s written policy regarding

requests for disability testing accommodations.” [/d. at § 14.] Plaintiff states that the OAE never

responded to her November 2, 2018 letter. [/d. at J 15.]

According to the complaint, Plaintiff then contacted Mr. Urosev, Dean of Academic

Affairs, and Dr. Marth Halsey, Academic Specialist, to request assistance with obtaining

accommodations for the USMLE.? [1 at § 16.] Plaintiff was informed that “the request for

accommodations requires six full months and since the college had only granted Plaintiff five

months to take the exam, there was not enough time to pursue the accommodations that Plaintiff

required to succeed on the examination.” [/d. at § 17.] Plaintiff “was advised to study hard and

[do] the best she could” on the examination. [/d. at J 18.] Plaintiff asserts that the “College of

Medicine through Dean Curry was aware of Plaintiff's need for accommodations” and had

informed her of her ability to obtain them, and “was also aware that the accommodations process

required six full months for the completion and granting of the accommodations,” yet “‘granted

Plaintiff only five months to take and pass the test.” [1 at 4] 19-21.]

Plaintiff sat for the exam in March of 2019 without accommodations and was unable to

pass. [1 at § 23.] She claims that she failed the examination “because she did not have sufficient

time to accurately read, comprehend, and complete the exam,” she “experienced significant

anxiety that exacerbated the impacts of her cognitive impairments” before the examination even

began, and ultimately “rushed through test questions” because of her difficulties focusing. [/d. |

Because Plaintiff did not pass Step 1 of the USMLE, she was dismissed from her medical program

by letter dated April 26, 2019. [/d. at § 24.] She filed a grievance with Defendant challenging the

> Plaintiff does not specify in her complaint exactly when she contacted Urosev and Halsey, nor when any

of the following events took place.

school’s decision to dismiss her, but her grievance was denied on October 4, 2019. [/d. at 25—

26.]

Plaintiff initiated this action on July 20, 2021, filing a five-count complaint against UIC

Medical School [1]. Plaintiff asserts (1) failure to accommodate in violation of the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. (Count I); (2) disability discrimination in

violation of Section 504 of the Rehabilitation Act of 1973 (Count II); (3) constitutional deprivation

pursuant to 42 U.S.C. § 1983 (Count IID); and (4) disability discrimination in violation of the

Illinois Human Rights Act (“IHRA”), 775 ILCS 5 (Count IV).* Plaintiff seeks injunctive relief in

the form of “retroactive placement to the position of medical student at the time of dismissal,”

compensatory damages, and attorney’s fees. Defendant moves to dismiss with prejudice all claims

in the complaint [9].

I. Legal Standard

Dismissal for failure to state a clatm under Rule 12(b)(6) is proper “when the allegations

in a complaint, however true, could not raise a claim of entitlement to relief.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 558 (2007). In reviewing a motion to dismiss pursuant to Rule 12(b)(6),

the Court accepts as true all of Plaintiffs’ well-pleaded factual allegations and draws all reasonable

inferences in Plaintiffs’ favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th

Cir. 2007). However, “[t]o survive a motion to dismiss, the well-pleaded facts of the complaint

must allow the court to infer more than the mere possibility of misconduct.” Langworthy v.

Honeywell Life & Acc. Ins. Plan, 2009 WL 3464131, at *2 (N.D. Ill. Oct. 22, 2009) (citing

McCauley vy. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011)). Additionally, the Court “need

not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action,

4 The complaint also purports to assert a fifth claim of “declaratory relief” [1 at 18], which the Court finds

unnecessary and redundant for the reasons stated above.

supported by mere conclusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)

(quoting /gbal, 556 U.S. at 678). Evaluating whether a “claim is sufficiently plausible to survive

a motion to dismiss is ‘a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” /d. (quoting McCauley, 671 F.3d at 616).°

Il. Analysis

A. Count I: ADA Discrimination

Another judge in this circuit dealt with a similar set of allegations in Saavedra v. Bd. Of

Regents of University of Wisconsin System, 982 F.Supp.2d 879 (N.D. Ill. Oct. 9, 2013). Plaintiff

in that case was a second-year resident physician at the University of Wisconsin—Madison (“UW-—

Madison”) School of Medicine and Public Health who suffered from dyslexia, ADHD, and a

learning disability. In order to continue his residency, the plaintiff needed to pass Step 3 of the

USMLE. Plaintiff failed the test on his first two attempts, and on July 28, 2006, he was informed

that his employment contract would terminate on September 30, 2006, but also that he would be

reinstated if he passed Step 3 by December 1, 2006.

> Defendant moves for dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can

be granted, but also asserts that “the Court lacks subject matter jurisdiction over Counts I, III, and IV,” an

objection which is typically raised pursuant to Rule 12(b)(1). Defendant properly filed its motion pursuant

to 12(b)(6), but throughout its briefing fails to properly distinguish between “two sometimes confused or

conflated concepts: federal-court ‘subject matter’ jurisdiction over a controversy; and the essential

ingredients of a federal claim for relief.” Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006). In Arbaugh,

the Supreme Court determined that the issue of whether a party is an “employer” under Title VII was an

element of the party’s claim rather than a jurisdictional requirement. The Court reviewed the definition of

employer under the statute, 42 U.S.C. § 2000e(b), and concluded that the question of whether an employer

falls within its definition was a merit-based determination, explaining that “when Congress does not rank a

statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in

character.” Arbaugh, 546 U.S. at 516. Similarly, the ADA’s definition of a “private entity” under 42 U.S.C.

§ 12181 suggests that the issue of whether Defendant is subject to the provisions of Title II is an element

of Plaintiff's claim—not a question of jurisdiction. Cf Runnion ex rel. Runnion v. Girl Scouts of Greater

Chi. & Nw. Indiana, 786 F.3d 510, 517 (7th Cir. 2015) (issue of “whether the Girl Scouts receive federal

financial assistance” to determine whether they were covered by the Rehabilitation Act “has no effect on

subject-matter jurisdiction and that federal-question jurisdiction under 28 U.S.C. § 1331 is proper’). In

view of the foregoing, the Court will address all of Defendant’s arguments under Rule 12(b)(6).

Plaintiff petitioned the NBME for additional test-taking time to accommodate his

disabilities. Plaintiff was unable to pass Step 3 before the December 1 deadline, but ultimately

was successful after retaking the test with extra time on May 3, 2007. He applied for reinstatement

to his residency but was turned down. According to his complaint, the program director informed

him that he could not return to the program because he did not pass the examination on time, and

stated: “our Program just doesn’t have the resources to accommodate you or work with you with

extra time.” 982 F.Supp.2d at 882.

Plaintiff filed suit in federal court against the Board of Regents of the University of

Wisconsin System, the Interim Chancellor of U-W Madison, and the Dean of the UW—Madison

School of Medicine and Public Health. Plaintiff claimed (in relevant part) employment

discrimination under the Rehabilitation Act of 1973 § 504 alleging that defendants denied his

restatement application because they refused to provide reasonable accommodation for his

disabilities.© Defendants filed a motion to dismiss which the court granted, finding that plaintiff

had failed to state a plausible claim for relief under § 504. The court explained:

The problem with plaintiffs claim is that he did not ask defendants to accommodate

his disabilities. He says he needed extra time during his medical licensing exam

because his dyslexia, ADHD, and learning disability prevented him from reading

all of the exam questions in the time normally allotted. But he did not ask

defendants for this accommodation and properly so because defendants had no

power to grant it. Only the NBME could give plaintiff more time to take his exam[. ]

Id. at 884.

The same reasoning applies here, and Plaintiff thus fails to state a claim for discrimination

under the ADA. In fact, Plaintiff's claim suffers from two fatal defects. First, as Defendant argues,

Plaintiff asserts her claim under Title III of the ADA, which is the wrong vehicle here. The ADA

Tt is well established that “discrimination claims under the ADA and the Rehabilitation Act are governed

by the same standards, with one exception related to causation that is not relevant here.” Bowers v. Dart, |

F.4th 513, 519 (7th Cir. 2021).

was enacted “to provide a clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1). The Act “forbids

discrimination against persons with disabilities in three major areas of public life: employment,

which is covered by Title I of the statute; public services, programs, and activities, which are the

subject of Title I; and public accommodations, which are covered by Title III.” “Title III of the

ADA only applies to prohibit discrimination by private entities, and not by public entities.”

Naperville Smart Meter Awareness v. City of Naperville, 69 F.Supp.3d 830, 843 (N.D. Ill. 2014).

Plaintiff emphatically brings her claim under Title III. [See 14 at 2 (clarifying that “Plaintiff

pleaded her claim under Title IIT’).] But Defendant is a state agency in Illinois. See Mays Gillon

v. Bd. Of Trustees of Univ. of Ill., 2018 WL 905506, at *4 (N.D. Ill. Feb. 15, 2018) (“[T]he

University of Illinois is a state agency.”). Thus, there is a mismatch between the named Defendant

and the relief potentially available to Plaintiff under the section of the ADA she invokes. Plaintiff

must either (a) assert a Title II claim against the University,’ or (b) pursue her Title IIT claim

against a private entity. Compare Baaske v. City of Rolling Meadows, 191 F. Supp. 2d 1009, 1012

(N.D. Il. 2002) (“The [NBME], as a private entity offering examinations related to licensing, is

subject to the ADA under Section 12189”) with Block ex rel. Block v. Rockford Pub. Sch. Dist.

205, 2001 WL 1195757, at *1 (N.D. Ill. Oct. 10, 2001) (noting that public schools “are

quintessential ‘public entities,” making Title II the exclusive means of enforcing [plaintiffs’ | rights

under the ADA”). Plaintiff's attempt to assert a Title If claim against a public entity fails as a

matter of law.

7 As Defendant argues in its opening brief [see 10, at 4-5], Plaintiff may face a different set of obstacles if

she were to assert a claim under Title II against the University as an entity—including sovereign

immunity—but the Court need not explore that scenario here.

Plaintiff attempts to avoid this impediment by arguing that Defendant may have violated

Title III “through the NBME.” [14 at 3.] Indeed, Plaintiff maintains that the Court should not

dismiss Count I because “[w]hether Defendant would be subject to liability for causing Plaintiff

to take the exam administered by the NBME, an entity covered under Title II, remains an issue of

fact and question of law not to be decided at this stage.” [Jd.] But this theory, too, is flawed. As

Plaintiff acknowledges in her complaint, the NBME “sponsor[s],” “develops,” and “administers”

the USMLE. [1 at Jj 30, 32, 43.] Plaintiff has not plausibly alleged that Defendant was responsible

for failing to accommodate her disabilities. In fact, she states that ADA regulations “prohibit

NBME from administering the USMLE without ensuring that the scores reported ‘accurately

reflect the applicant’s aptitude or achievement level or whatever other factor the test purports to

measure, rather than reflecting the applicant’s [disability].’” [1 at 4 46 (quoting 28 C.F.R. §

36.309(b)(1)(i).] In this regard, Plaintiff is exactly right: Title II of the ADA requires the NBME

to “offer [licensing] examinations or courses in a place and manner accessible to persons with

disabilities or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189.

The University has no such obligations because it does not “sponsor” “develop” or “administer”

the USMLE.

The cases to which Plaintiff cites also work against her [see 14 at 3-4], because those cases

deal with issues of vicarious liability in the context of an employer-municipality. Black’s Law

Dictionary defines vicarious liability as “‘[l]iability that a supervisory party (such as an employer)

bears for the actionable conduct of a subordinate or associate (such as an employee) based on the

relationship between the two parties.” Vicarious Liability, BLACK’S LAW DICTIONARY (11th ed.

2019); see also Novak v. Hall, 139 F.Supp.3d 901, 909 (N.D. Ill. 2015) (because Cook County is

considered a “public entity” under the ADA, “the court will assume that as Judges Hall and Evans

are employed by the County, Cook County is vicariously liable for any violations of the ADA and

Rehabilitation Act committed by them’). No supervisory relationship exists between the NBME

and the University. Rather, the University predicates continued enrollment on the USMLE exams,

which are run by the NBME. It is “well within” the University’s “authority to decide that in order

for it to adhere to the demanding standards of a medical school responsible for producing

competent physicians, it needed to require plaintiff to pass Step 1,” Powell v. Nat’l Bd. Of Med.

Examiners, 364 F.3d 79, 88 (2d Cir. 2004), and that does not establish a supervisory relationship

between Defendant and the NBME.*®

B. Count II: Rehabilitation Act

The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability

... Shall, solely by reason of her or his disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance[.]” 29 U.S.C. § 794(a). As the Court noted above, the same standards govern

the Rehabilitation Act and the ADA. See Bowers v. Dart, 1 F.4th 513, 519 (7th Cir. 2021). Under

both statutes, Plaintiff must demonstrate “that [she] is a qualified individual with a disability, and

that [she] was denied access to a service, program or activity because of [her] disability.” /d.

Plaintiff's Rehabilitation Act claim fails for the same reason as her ADA claim: She has

not alleged any facts that suggest that Defendant is responsible for the injury she asserts. The crux

of Plaintiff's Count I is the same as Count I. The complaint states: “Defendants unlawfully

discriminated against Plaintiff on the basis of a disability when they failed to provide Plaintiff with

* Tt is not impossible that events giving rise to an ADA claim simultaneously implicate Titles II and III Act.

The Seventh Circuit acknowledged such a possibility in Ashby v. Warrick Cnty Sch. Corp., 908 F.3d 225,

233 (7th Cir. 2018), explaining that “when public and private entities act jointly, such as when a

municipality and a private company jointly work to build a new stadium, both Title II and Title III may be

implicated.” The allegations in the complaint do not suggest (nor does Plaintiff argue) that such a dynamic

exists here.

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testing accommodations when they were aware that accommodations were necessary for Plaintiff

to perform at her potential.” [1 at 60.] But as explained above, the complaint does not plausibly

allege any facts to support her theory that the University—rather than the NBME—failed to

accommodate her. See Saavedra, 982 F.Supp.2d at 884; see also Cunningham v. Univ. of New

Mexico Bd. of Regents, 531 F. App’x 909, 920 (10th Cir. 2013) (affirming dismissal of medical

student’s ADA and Rehabilitation Act claims against the University in part because “[i]nsofar as

[plaintiff] needed an accommodation, it would have been in the area of taking the examinations

that the Board administered—examinations that are not under the control or purview of UNM”).

Because Count II of the complaint also is dismissed, the Court need not address

Defendant’s statute of limitations argument [see 10, at 7-8]. See Amin [jbara Equity Corporation

v. Village of Oak Lawn, 860 F.3d 489, 492 (7th Cir. 2017) (“A limitations defense is not often

resolved on a Rule 12(b)(6) motion because a complaint need not anticipate and overcome

affirmative defenses, such as the statute of limitations” (citations omitted)). With that said, it is

worth noting the observation of another judge in this Circuit that the notion that a disability

discrimination claim accrues on the date of the denial of the plaintiff's appeal is “squarely

foreclosed by Seventh Circuit precedent.” Cordova v. Univ. of Notre Dame Du Lac, 936 F. Supp.

2d 1003, 1011 (N.D. Ind. 2013) (citing Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 553

(7th Cir. 1996) (“internal appeals are not part of the ADA statutory procedure and do not toll the

time for filing suit’). Thus, unless the law has changed, Defendant’s statute of limitations

argument appears to be strong.

C. Count IIT: 42 U.S.C. § 1983

Plaintiff concedes [see 14, at 4] that her claim under 42 U.S.C. § 1983 fails as a matter of

law. See Kaimowitz v. Bd. of Trustees of Univ. of Ill., 951 F.2d 765, 767 (7th Cir. 1991) (“Because

1]

this Court has determined in previous § 1983 actions that a state university is an alter ego of the

state, * * * it follows that a state university is not a person within the meaning of § 1983 and

therefore not subject to suits brought under § 1983.”). Count III is thus dismissed with prejudice.

D. Count IV: Illinois Human Rights Act

Finally, Defendant moves to dismiss Count [V—violation of the IHRA—because Plaintiff

failed to exhaust her administrative remedies prior to filing this action. The Court agrees.

The IHRA vests the Illinois Human Rights Commission “with exclusive authority to hear

complaints seeking redress for alleged violations under the Act.” Swidnicki v. Brunswick Corp.,

23 F.Supp.3d 921, 929 (N.D. Ill. 2014). “Judicial review of such claims is available only after the

Commission has issued a final order on a complaint.” /d. Plaintiff has not alleged any facts to

show that she brought her claim before the Commission before filing this action in federal court.

Moreover, even if Plaintiff had exhausted her remedies before the Commission, the Court

would decline to exercise supplemental jurisdiction over this claim in view of the disposition of

all of Plaintiffs federal claims above. To be sure, 28 U.S.C. § 1367 provides that “in any civil

action of which the district courts have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims” arising from the same nucleus of facts. 28 U.S.C.

§ 1367(a). However, the statute also provides that a district court “may decline to exercise

supplemental jurisdiction” over state-law claims if the court “has dismissed all claims over which

it has original jurisdiction.” § 1367(c). It is well settled in the Seventh Circuit that “[a] court that

resolves all federal claims before trial normally should dismiss supplemental claims without

prejudice.” Redwood v. Dobson, 476 F.3d 462, 467 (7th Cir. 2002). Following the usual practice

in our Circuit, the Court is not inclined to retain jurisdiction over her [HRA claim absent a viable

federal claim.

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IV. Conclusion

For the reasons stated above, Defendant’s motion to dismiss [9] is granted. Count III is

dismissed with prejudice based on Plaintiff's concession that sovereign immunity bars a Section

1983 suit against Defendant. Count V also is dismissed with prejudice as a declaratory judgment

is unnecessary and redundant in view of Counts I and II, which provide an adequate vehicle to

pronounce any rights Plaintiff may have under the ADA and Rehabilitation Act vis-a-vis the

named Defendant. In an abundance of caution and to provide Plaintiff an avenue for relief should

she discern a viable federal claim, Counts I and II are dismissed without prejudice and with leave

to file a motion for leave to file an amended complaint no later than September 1, 2022, if Plaintiff

believes an amended complaint can be maintained consistent with this opinion and Federal Rule

of Civil Procedure 11. Ifno motion for leave to amend is filed by that date, or if any such motion

is denied, the dismissal of Counts I and II will convert to with prejudice. In view of the dismissal

of all of Plaintiff's federal claims, the Court is inclined to decline supplemental jurisdiction over

the state law claim set out in Count IV but will not formally dismiss that claim without prejudice

until it can rule on a motion for leave to amend the federal claims. In the event that Plaintiff has

no viable federal claim against Defendant, Count IV will be dismissed without prejudice. See 735

ILCS 5/13-217.

Dated: August 2, 2022 Lele

Robert M. Dow, Jr.

United States Distriéf Judge

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