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Kim Pindak v. Thomas Dart

September 14, 2011

KIM PINDAK, PLAINTIFF,
v.
THOMAS DART, SHERIFF OF COOK COUNTY, AND COOK COUNTY, ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Kim Pindak ("Plaintiff" or "Pindak") filed this complaint on September 29, 2010 against Defendants Thomas J. Dart, Sheriff of Cook County, and Cook County, Illinois ("Cook County") (collectively "Defendants"). Plaintiff asserts that Defendants have imposed a "blanket prohibition on peaceful panhandling" in the Daley Plaza. This policy, Plaintiff contends, violates the First Amendment of the United States Constitution ("First Amendment"), both facially and as applied to Plaintiff. He seeks declaratory, injunctive, and monetary relief. Defendants moved to dismiss Plaintiff's claims under FED. R. Civ. P. 12(b)(6), contending that Plaintiff lacks standing to seek injunctive relief; that this court should abstain pursuant to Younger v. Harris; and that, assuming the alleged policy does indeed exist, said policy is a valid time, place, and manner restriction, and thus does not violate the First Amendment. (Defs.' Mot. to Dismiss [14] at 1-2.) For the reasons explained below, Defendants' motion to dismiss is denied.

FACTUAL BACKGROUND

For purposes of this motion, the court presumes that the allegations in Plaintiff's complaint are true. Kim Pindak is a male resident of the City of Chicago, which is located in Cook County, Illinois. (Compl. ¶ 4.) Pindak receives public assistance sufficient to pay his monthly room and board at Bryn Mawr Care Nursing Home Facility, where he is a resident. (Compl. ¶¶ 4, 9.) Plaintiff also receives an additional $30.00 per month in public assistance, which he uses for other living expenses. (Compl. ¶ 9.) Pindak has no other income or savings, and he frequently panhandles (begs for money) to supplement his limited funds. (Compl. ¶ 9.)*fn1

One location where Pindak has been known to panhandle is Daley Plaza. (Compl. ¶ 10.) Plaintiff's complaint does not specify how long, or how regularly, Pindak has plied his trade in this location, but it does describe his style: When panhandling, Pindak stands with a cup in his hand and asks passersby, "Can you spare some change?" (Compl. ¶ 8.) Pindak is in no way aggressive and, when he receives a money, he always thanks the donor. (Id.)

Plaintiff alleges that his panhandling at Daley Plaza has met with resistance on three specific occasions. (Compl. ¶¶ 11-13.) The first alleged incident occurred on September 23, 2009, when sheriff's officers at the Daley Plaza told Plaintiff, "You can't beg at all [on Daley Plaza]. It is illegal." (Compl. ¶ 13.) The second incident occurred on Oct. 6, 2009, when Plaintiff was escorted off the grounds by law enforcement. (Id.)

The third incident allegedly occurred on September 24, 2010. (Compl. ¶ 11.) On that date, sheriff's officers told Plaintiff that panhandling was forbidden on the public property outside the Daley Center in Daley Plaza and told him that he would have to find another area for solicitation. (Id.) One of the officers elaborated, explaining that panhandling on Daley Plaza is prohibited, "this year, the following year, and the year after that." (Compl. ¶ 12.) Additionally, the officers warned Plaintiff that if he did not vacate the premises, an officer would "put handcuffs on [him]." (Id.) When Pindak asked where it was acceptable for him to panhandle, the officers repeated that there could be "no soliciting on the plaza" and instructed him to go "outside the plaza" to a street corner. (Id.)

Plaintiff claims that this policy was enforced by other officers on "numerous other occasions." (Compl. ¶ 13.) Because of the "uniformity of the practice [of removing panhandlers from Daley Plaza] by personnel and/or agents of the Sheriff's Department," it is Plaintiff's contention that there is either an "absolute prohibition on all peaceful panhandling" in the area that constitutes a policy and/or practice of the Cook County Sheriff's Department ("Sheriff's Department") or that the Sheriff's Department "has failed to adequately train its police officers to protect the legal rights of panhandlers." (Id.)

Plaintiff filed this action, pursuant to 42 U.S.C. § 1983, contending that Defendants have violated the First Amendment, both facially and as applied. Plaintiff seeks declaratory, injunctive, and monetary relief against all Defendants. (Compl. at 5.)

DISCUSSION

In order to survive a motion to dismiss for failure to state a claim, a plaintiff's complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). In ruling on a 12(b)(6) motion, the court treats all well-pleaded allegations as true, and draws all reasonable inferences in plaintiff's favor. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009). In considering a 12(b)(6) motion, the issue is adequacy of the complaint, not whether it is meritorious; and thus, while detailed factual allegations are not required, a plaintiff has an obligation to provide "enough facts to state a claim to relief that is plausible on its face" and that "raise[s] a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 555, 127 S. Ct. 1955, 1974, 1965 (2007); Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009).

As noted, Defendants argue that Plaintiff's complaint should be dismissed for lack of standing; under the Younger doctrine; and because the alleged policy is reasonable. (Defs.' Mot. to Dismiss at 1-2.) The court considers these arguments in turn.

I. Standing to Seek an Injunction

To establish standing to seek the prospective relief of an injunction, a plaintiff "must show that: (1) [he is] under threat of an actual and imminent injury in fact; (2) there is a causal relation between that injury and the conduct to be enjoined; and (3) it is likely, rather than speculative or hypothetical, that a favorable judicial decision ...


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