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Uptown Tent City Organizers v. City of Chicago Department of Administrative Hearings

United States District Court, N.D. Illinois, Eastern Division

June 5, 2018




         This lawsuit centers on the plight of homeless residents of the City of Chicago ("the City"), specifically those who have at some point resided in the City's Uptown neighborhood. From July through September 2016, twenty to thirty homeless people resided in tents in front of a former elementary school at 4525 North Kenmore Avenue (referred to herein as "Stewart Mall") in Uptown. On September 26, 2016, the City fenced off Stewart Mall, and some of the homeless people who had been living there relocated their tents under the Lake Shore Drive ("LSD") viaducts at Wilson and Lawrence Avenues in Uptown. Over the next year, the number of homeless people living under the viaducts fluctuated. By mid-September 2017, approximately 20 to 25 people lived in tents under the viaducts.

         In March 2017, plaintiff Andy Thayer, a 30-year resident of Uptown who is not himself homeless, filed a "notification of public assembly" with the Chicago Department of Transportation ("CDOT"), pursuant to Municipal Code of Chicago ("MCC") § 10-8-334, on behalf of himself and plaintiff Uptown Tent City Organizers ("UTCO") (Compl., ¶ 7; doc. # 1: Notice of Removal, Ex. A: 04/17/2017 Admin. Decis. at 6-8).[2] Mr. Thayer sought permission to "erect a tent city" on Stewart Mall for approximately seven months because the City needed to perform construction work on the viaducts (Id.).[3] The City denied Mr. Thayer's request, and the denial was affirmed in a written decision by an Administrative Law Judge ("ALJ") on April 17, 2017 (Compl., ¶¶ 30-31; 04/17/2017 Admin. Decis. at 6-8). Mr. Thayer and UTCO sought administrative review in state court, and on June 15, 2017, defendants removed the case to federal court.

         Plaintiffs did not challenge the removal of their administrative review complaint to federal court. Rather, on August 1, 2017, plaintiffs filed an amended complaint adding to their claim for administrative review claims alleging violations of the Eighth Amendment, First Amendment, and the Illinois Homeless Act (doc. # 23: First Am. Compl, ¶¶ 72-86). Plaintiffs asserted that this Court had federal question jurisdiction over the federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction under 28 U.S.C. § 1367 over the state law claims (Id., ¶¶ 2-3). Before construction work on the viaducts was due to begin, plaintiffs moved to enjoin the City from beginning construction until they were granted a permit to assemble their tents on Stewart Mall, were provided permanent housing, or were given an alternative safe and visible location to set up their tents (doc. # 25: Mot. for Prelim. Inj. at 4-5). On September 15, 2017, after a hearing, this Court denied plaintiffs' motion for preliminary injunction (doc. # 43). On September 18, 2017, the City began construction on the viaducts, and the tent residents were forced to vacate those locations.

         After this Court's decision denying their motion for a preliminary injunction, plaintiffs filed a Second Amended Complaint ("Complaint"). Plaintiffs contend that the City's ordinances and actions violated: (1) their right under local law to obtain a City permit to erect and maintain tents on Stewart Mall (doc. # 48: Compl., Count I); (2) the First Amendment's guarantee of free speech and assembly (Id., Count II); (3) the Eighth Amendment's prohibition against cruel and unusual punishment (Id., Count III); (4) the Fourth Amendment's prohibition against illegal seizure (Id., Count IV); (5) the Fifth Amendment's prohibition against taking private property without just compensation (Id., Count V); and (6) the Illinois Homeless Act (Id., Count VI).

         Defendants have filed a motion to dismiss Counts II through VI of the Complaint under Federal Rule of Civil Procedure 12(b)(1) on the ground that plaintiffs lack standing to assert their claims, and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted (doc. # 56: Defs.' Mot. to Dismiss). The motion is now fully briefed. For the reasons that follow, we grant defendants' motion to dismiss. We find that neither plaintiff has standing to assert the claims in Counts III through VI, and we dismiss those claims under Rule 12(b)(1) for lack of subject-matter jurisdiction. Plaintiffs have standing to assert the claim in Count II, but the Court grants defendants' motion to dismiss Count II under Rule 12(b)(6). As there is no federal claim remaining in the case, we relinquish jurisdiction over the local law claim in Count I pursuant to 28 U.S.C. § 1367(c).


         Before addressing any challenge to plaintiffs' complaint for failure to state a claim, the Court must answer "the threshold question" of whether plaintiffs have standing to bring the claims they assert. Taylor v. McCament, 875 F.3d 849, 855 (7th Cir. 2017). Standing is '"an essential and unchanging part of the case-or-controversy requirement of Article III.'" Swanigan v. City of Chicago, 881 F.3d 577, 583 (7th Cir. 2018) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); U.S. CONST, art. Ill, § 2, cl. 1). "Standing has three elements: 'The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.'" Matushkina v. Nielsen, 877 F.3d 289, 292-93 (7th Cir. 2017) (quoting Spokeo, Inc. v. Robins, ___ U.S. __, 136 S.Ct. 1540, 1547 (2016)). "When there are multiple plaintiffs[, a]t least one plaintiff must have standing to seek each form of relief requested in the complaint." Town of Chester, N. Y. v. Laroe Estates, Inc., ___ U.S. __, 137 S. Ct. 1645, 1651 (2017). Challenges to standing are appropriately addressed by a motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. Swanigan, 881 F.3d at 582.


         With regard to Mr. Thayer, plaintiffs agree that he does not have standing to assert the claims in Counts III through VI (doc. # 66: Pls..' Resp. at 2), and defendants do not challenge his standing to assert the claim in Count II (Defs.' Mem. at 4). We agree that Mr. Thayer has standing to assert that his First Amendment rights were violated in Count II. In the Complaint, plaintiffs (including Mr. Thayer) contend that "they are in fear of being ticketed [and] arrested" if they set up a tent community (Compl., ¶ 75). Assuming, solely for the purpose of considering standing, that erecting tents constitutes protected speech or expressive conduct (a question we address below, see pp. 17-20), Mr. Thayer has alleged "a concrete and particularized chilling effect" from the City's conduct preventing him from doing so. Bell v. Keating, 697 F.3d 445, 454-55 (7th Cir. 2012); see also Hoover v. Wagner, 41 F.3d 845, 847 (7th Cir. 1995) ("Arrest, prosecution, and conviction are tangible harms, and so is abandoning one's constitutional right of free speech in order to avert those harms"). And, the alleged chilling effect could be redressed by a decision in plaintiffs' favor. Therefore, Mr. Thayer has standing to assert the claim in Count II. See also Six Star Holdings, LLC v. City of Milw., 821 F.3d 795, 803 (7th Cir. 2016) (holding that the plaintiff had standing where it refrained from protected speech in response to the city's unconstitutional ordinances).


         The matter of UTCO's standing to assert the claims in the Complaint requires additional analysis. Defendants challenge UTCO's standing to assert each of the claims in Counts II through VI, while plaintiffs maintain that UTCO has standing.

         It is UTCO's burden - as the party now seeking to invoke federal jurisdiction - to establish that the jurisdictional requirements have been met. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588-89 (7th Cir. 2014). "In order to survive dismissal for lack of standing, the plaintiffs' complaint must contain sufficient factual allegations of an injury resulting from the defendants' conduct, accepted as true, to state a claim for relief that is plausible on its face." Diedrich v. Ocwen Loan Servicing, LLC, 839 F.3d 583, 588 (7th Cir. 2016) (citing Spokeo, 136 S.Ct. at 1548). "District courts deciding such motions must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiffs favor, unless standing is challenged as a factual matter." Laurens v. Volvo Cars of N. Am., LLC, 868 F.3d 622, 624 (7th Cir. 2017) (internal quotations omitted).

         In this case, defendants do not challenge UTCO's standing as a factual matter (i.e., with documentation disputing UTCO's standing). We thus begin by setting forth the well-pleaded allegations in the Complaint that bear on the matter of UTCO's standing.

         Plaintiffs allege UTCO is "an unincorporated association, the members of which include individuals currently residing on the streets and other non-permanent locations, primarily using personally-owned tents for shelter, and supportive housed community members, primarily based in the Uptown neighborhood" (Compl., ¶ 6). UTCO's objective is "to raise awareness about the plight of homelessness across the city of Chicago, to provide services for homeless individuals, and to advocate for those who have been excluded from mainstream society" (Id.).[4]

         Between July and September 2016, some 20 to 30 homeless persons created a "tent city" on Stewart Mall (Compl, ¶ 17). "Many of the tents" were orange-colored tents provided by UTCO (Id., ¶ 19). The tents provided homeless individuals with safe shelter and drew attention to the lack of affordable housing options in Uptown (Id., ¶ 18). People put up signs near the tents "educating people about police harassment and announcing upcoming protests and marches" and sometimes handed out informational leaflets (Id., ¶ 19).

         In late September 2016, Stewart Mall was fenced off and the homeless who were encamped in that location were forced to move (CompL, ¶ 20). "Many" of these individuals set up tents under the LSD viaducts at Wilson and Lawrence Avenues (Id., ¶ 21).

         In March 2017, plaintiffs sought a permit to "erect a tent city" on Stewart Mall because construction was due to begin on the viaducts (CompL, ¶ 24). Stewart Mall is public land located across the street from Chicago City Alderman James Cappleman's office and "highly visible" to people on Broadway Avenue (Id., ¶¶ 16-17). Plaintiffs' purpose in requesting the permit was "two-fold: to provide an alternative location to live for the homeless people living in tents under the Wilson and Lawrence viaducts; and to erect a tent city in a highly visible location in order to protest the lack of affordable housing in the City of Chicago" (Id., ¶ 24).

         On September 17, 2017, with construction on the viaducts due to begin the following day, homeless individuals living in tents under the viaducts numbering between 20 and 25 ~ moved their tents and belongings to an area west of the Wilson viaduct with the help of housed UTCO members (CompL, ¶¶ 44-46). "Many" of the homeless individuals had posted signs outside their tents with messages, such as "Homes Not Shelters" or "Stop Harassing the Homeless" (Id., ¶ 55). The next morning, City of Chicago police officers ordered that the individuals remove the tents or risk arrest and confiscation of the property (Id., ¶¶ 48-49). Chicago police officers informed individuals that unattended tents and possessions would be moved to 850 West Wilson (Id., ¶¶ 53-54), which is about one-third of a mile from the Wilson Avenue viaduct. That afternoon, "the tent encampment moved" a short distance away (Id., ¶ 56).

         On the morning of September 19, 2017, Chicago Police officers again threatened arrest and confiscation if the tent encampment did not move (Compl., ¶ 58). Chicago police officers went tent-to-tent to inform people they would have to move, and to ask if they needed medical attention (Id., ¶ 61). One Chicago police officer marked tents for removal with blue masking tape after the warnings were given (Id.). Chicago police officers stated that unattended items would be tagged: sanitation workers confiscated one unattended tent, and the remaining individuals moved the tents across the sidewalk to land owned by the Metropolitan Water Reclamation District (Id., ¶¶ 63, 65). An employee of the Water Reclamation District told the individuals they had to leave, and that evening most of the people - with the assistance of housed UTCO members moved their belongings to an "abandoned" private lot nearby (Id., ¶¶ 66-67).

         The next day, a Chicago police commander informed the individuals remaining in the tents that they were trespassing and would be subject to arrest if they did not move, or if they tried to set up a tent encampment elsewhere in Uptown (Compl., ¶¶ 70-74). Tyler Dean Hamlin, an UTCO member (plaintiffs do not allege whether he is homeless), refused to leave and was arrested for trespass (Id., ¶ 73). In addition, plaintiffs allege that the Chicago police commander stated that items left on the public way would be confiscated (Id. A 74).

         Plaintiffs contend that they have adequately alleged that UTCO has standing to sue in its own right. They assert that UTCO suffered a direct injury from defendants' challenged conduct because the City "has seized and threatened to seize the tents and other materials UTCO provided," which directly injured UTCO "because it needs to fundraise to attempt to replace at least some of the confiscated property" (Pls..' Resp. at 4). In addition, plaintiffs contend that dispersal of the tent encampment made "it much more difficult, and in many instances impossible, for UTCO to perform its mission as it cannot readily find the people it is attempting to serve," and UTCO expended time and assets moving homeless people who were displaced (Id). Defendants dispute that UTCO has adequately alleged "that it, as an organization, has been harmed by any action of the City" (Defs.' Mem. at 5). For the following reasons, we find that UTCO had not plausibly alleged that it suffered an injury in fact, and thus, UTCO does not have standing to sue in its own right.[5]

         As explained above, to have standing a plaintiff must allege that it suffered an "injury in fact," meaning '"an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Matushkina, 877 F.3d at 293 (quoting Spokeo, 136 S.Ct. at 1548). An "injury is concrete because it 'actually exist[s],' and it is particularized because it 'affects [the plaintiff] in a personal and individual way." Id. For an organization to have standing to sue in its own right, the organization must allege that it -- rather than only its members -- suffered a concrete and particularized injury. Milw. Police Ass'n v.Flynn, 863 F.3d 636, 639 (7th Cir. 2017).

         Here, plaintiffs do not adequately allege that UTCO itself suffered an injury in fact. Although they plead that UTCO provided "many" of the tents used by the homeless in Uptown (Compl., ¶ 19), plaintiffs allege only that one unattended tent was confiscated, and the allegations do not tie UTCO to that tent in a concrete or particularized manner. Plaintiffs do not allege that UTCO provided the one confiscated tent, that the owners of the confiscated property were members of UTCO, or that the tent was confiscated permanently and could not later be reclaimed by the owner. Despite an allegation that one unidentified officer stated generally "[i]f there is nobody here, it's garbage," the Court cannot reasonably infer from the Complaint that the one confiscated tent was permanently disposed of, because plaintiffs allege that the removed property was visibly tagged. Moreover, UTCO's description of its alleged injury -- a "need[] to fundraise to attempt to replace at least some of the confiscated property" (Pls..' Resp. at 4) ~ sounds more ...

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