The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
E-FILED Friday, 10 December, 2010 04:51:50 PM
Clerk, U.S. District Court, ILCD
REPORT AND RECOMMENDATION
In August 2010, Plaintiff Robert I. Sherman filed a Complaint (#1) against the State of Illinois, Friends of the Cross, Inc., and other individual defendants in their official capacities. Plaintiff alleges a violation of the Establishment Clause. Federal jurisdiction is based on federal question pursuant to 28 U.S.C. § 1331 because Plaintiff has alleged a constitutional violation.
On August 27, 2010, Plaintiff filed a Petition for a TRO or Preliminary Injunction (#11). On November 1, 2010, the State of Illinois and a number of other Defendants (hereinafter the "State of Illinois Defendants") filed a Motion to Dismiss (#18). On November 5, the Friends of the Cross, Inc. Defendants filed Defendants', Friends of the Cross, Inc. And James J. Lingle, Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Response to Plaintiff's Temporary Restraining Order (#24). Plaintiff has filed a response to each pending motion to dismiss (#26, #27). After reviewing the parties' pleadings and memoranda, this Court recommends, pursuant to its authority under 28 U.S.C. § 636(b)(1)(B), that the State of Illinois' Motion to Dismiss (#18) be GRANTED, and that the Friends of the Cross, Inc.'s motion to dismiss (#24) be GRANTED. This Court further recommends that Plaintiff's petition for a temporary restraining order or preliminary injunction (#11) be DENIED as moot.
The following background is taken from Plaintiff's complaint. Plaintiff alleges that a large private Christian cross located near Alto Pass, Illinois, known as Bald Knob Cross, became dilapidated. The Illinois Department of Commerce and Economic Opportunity (hereinafter the "Department") provided a grant of $20,000 to Friends to the Cross, Inc., to be spent on replacement and installation of exterior panels of the cross. This sum came out of a $5 million legislative appropriation to the Department. Friends of the Cross, Inc. was specifically named by the General Assembly as an eligible grantee in the appropriation bill.
Plaintiff is an atheist, and he resides in and pays taxes to the State of Illinois. He asserts that the expenditure of public money on the Bald Knob Cross constitutes a violation of the Establishment Clause. He alleges that Friends of the Cross has falsely certified to the Department that the funds would not be used to advance any religious mission, when in fact restoring the cross would be undertaken primarily for a sectarian purpose.
Plaintiff brings action for declaratory and injunctive relief for violations of the Establishment Clause of the United States Constitution, as well as Article X, Section 3 of the Illinois Constitution. He also seeks mandamus to order the Department to rescind the grant and require Friends of the Cross to repay the money provided.
The State of Illinois Defendants assert their motion to dismiss should be granted under FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction. Defendants argue that Plaintiff lacks standing. A plaintiff seeking to invoke federal court jurisdiction must demonstrate: (1) an injury that is concrete, particularized, and actual or imminent; (2) a causal connection between the injury and the challenged conduct, such that the injury may be fairly traceable to that conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir. 2000). Where standing is challenged as a factual matter, a plaintiff who files in federal court bears the burden of supporting the allegations necessary for standing with competent proof. Perry v. Village of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). In addition to constitutional standing requirements, there are several judicially imposed limits on the exercise of federal jurisdiction, including the rule barring adjudication of generalized grievances. O'Sullivan v. City of Chicago, 396 F.3d 843, 853 (7th Cir. 2005). Courts have refused to recognize a generalized grievance against allegedly illegal government conduct as sufficient for standing to invoke federal judicial power. Id. at 855 (quoting United States v. Hays, 515 U.S. 737, 743 (1995)). Individuals challenging governmental actions must have suffered a direct injury as a result of the allegedly unconstitutional action. Id. at 856.
Additionally, both motions to dismiss before this Court seek dismissal under FED. R. CIV. P. 12(b)(6) for failure to state a claim. The purpose of a motion to dismiss for failure to state a claim is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The complaint must give fair notice of what the claim is and the grounds upon which it rests. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007). However, fair notice is not enough by itself; in addition, the allegations must show that it is plausible, rather than merely speculative, that the plaintiff is entitled to relief. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). Furthermore, if the plaintiff chooses to provide additional facts, beyond the short and plain statement required, plaintiff may plead himself out of court when the facts plaintiff provides demonstrate he has no claim. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999).
When considering a motion to dismiss for failure to state a claim, the Court is limited to the allegations contained in the pleadings. Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). The Court must treat all well-pleaded allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (requiring plausible grounds for inferences if those inferences are to sustain a complaint). In considering the plaintiff's factual allegations, the Court should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The application of the notice pleading standard ...