Hummel v. St. Joseph County Board of Commissioners , 817 F.3d 1010 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3284
STEPHEN HUMMEL, et al.,
Plaintiffs-Appellants,
v.
ST. JOSEPH COUNTY BOARD OF COMMISSIONERS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:10-CV-003 JD — Jon E. DeGuilio, Judge.
____________________
ARGUED APRIL 20, 2015 — DECIDED MARCH 23, 2016
____________________
Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
DARRAH, District Judge ∗.
HAMILTON, Circuit Judge. This appeal arises from a broad
challenge to the accessibility of state court facilities in St. Jo-
seph County, Indiana, for individuals with disabilities. Over
the years of this lawsuit, some plaintiffs who were formerly
∗ The Honorable John W. Darrah, United States District Judge for the
Northern District of Illinois, sitting by designation.
2 No. 14-3284
litigating cases in the state court facilities have stopped doing
so. Some plaintiffs have died. Others have dropped their
claims. The lawsuit also seems to have prompted physical
changes to the main courthouse and to the state court’s poli-
cies.
In 2014, the district court granted summary judgment for
the defendants on all then-remaining claims. Plaintiffs have
appealed. We affirm, not for any single, central reason, but for
different reasons for the numerous claims. Plaintiffs lack
standing to sue for some of their claims. They failed to present
evidence sufficient to raise genuine disputes of material fact
on other claims. Plaintiffs’ strongest claim was that court-
house restrooms were inaccessible. The courthouse has since
been remodeled to become more accessible, so that claim is
moot.
We do not hold that the St. Joseph County courts are fully
compliant with the Americans with Disabilities Act (“ADA”)
and the Rehabilitation Act. Rather, we hold only that these
plaintiffs have failed to present evidence sufficient to survive
defendants’ motion for summary judgment on the specific
claims before the district court. We express no opinion regard-
ing any possible future claims involving courthouse accessi-
bility. If, in the future, individuals with disabilities experience
problems with access to the St. Joseph County courts, their
claims will need to be decided on a fresh record.
I. Factual and Procedural Background
In January 2010, four plaintiffs—Victoria Means, Tonia
Matney, Stephen Hummel, and Margaret Hummel—sued the
St. Joseph County Board of Commissioners and the City of
South Bend. Plaintiffs were all individuals with disabilities,
No. 14-3284 3
and all alleged that they had cases pending in state courts in
St. Joseph County. Plaintiffs Means and Matney, who have
both since died, used wheelchairs, and Matney had limited
vision. Plaintiff Stephen Hummel has limited physical mobil-
ity as a result of a stroke. His wife, plaintiff Margaret Hum-
mel, who has since died, had limited physical stamina and
ability to walk. Plaintiffs have been represented throughout
this case by the same attorney, who is also an individual with
a disability and uses a wheelchair.
Plaintiffs sought both injunctive relief and damages, alleg-
ing that the St. Joseph County Courthouse in South Bend and
the Mishawaka County Services Building (the “Mishawaka
Courthouse”) did not comply with federal rules ensuring ac-
cessibility for individuals using wheelchairs, in violation of
the ADA and the Rehabilitation Act. 1 The county operates
both buildings, so the claims regarding the accessibility of the
actual courthouse buildings were against St. Joseph County.
In particular, plaintiffs explained that the courtrooms in the
St. Joseph County Courthouse and the Mishawaka Court-
house failed to meet federal accessibility standards with re-
spect to restrooms, elevators, witness stands, jury boxes, jury
deliberation rooms, attorney podiums, spectator seating, en-
trance ramps, clerk counters, services for the blind, and water
fountains.
Plaintiffs also alleged that parking around the St. Joseph
County Courthouse in South Bend is not accessible to them,
especially in inclement weather. They brought this claim
1 Plaintiffs also asserted claims under the United States and Indiana
Constitutions. Plaintiffs have not pursued those claims on appeal.
4 No. 14-3284
against the city, which operates the parking near the court-
house and the snow removal services. The city was not a de-
fendant on any claims relating to the Mishawaka Courthouse.
On September 16, 2011, the district court granted in part a
motion to dismiss, concluding that none of the original plain-
tiffs had standing to seek injunctive relief against the county
because none of them had cases pending in the St. Joseph
County courts. Plaintiffs then amended their complaint to
add five plaintiffs with then-pending state court cases: Crystal
Wright, Karen Brandy-Comer, Shawna Canarecci, Michael
Ramos, and Erica Bishop. Wright, Brandy-Comer, and Ramos
were also individuals with disabilities caused by mobility im-
pairments. Canarecci and Bishop, by contrast, sought relief on
the basis of their representation by an attorney with a disabil-
ity (the same who represented the original four plaintiffs).
On March 4, 2013, the district court denied plaintiffs’ re-
quest for a preliminary injunction ordering the defendants to
make the desired changes to the St. Joseph County Court-
house. At some point after the preliminary injunction hearing,
though, defendants remodeled the St. Joseph County Court-
house restrooms, which plaintiffs agree are now accessible.
In December 2013, the county and city moved for sum-
mary judgment on all remaining claims, presenting evidence
that their facilities complied with the federal statutes. Plain-
tiffs offered little evidence to rebut the evidence defendants
presented. But plaintiffs filed a cross-motion for partial sum-
mary judgment seeking a declaratory judgment and a perma-
nent injunction requiring the county to keep in place the
ADA-compliant restrooms it had installed and to enforce one
No. 14-3284 5
state court judge’s policy that she would accommodate indi-
viduals with disabilities by transferring their cases to another
courtroom.
By the time of the summary judgment motions, three of
the original plaintiffs—Victoria Means, Tonia Matney, and
Margaret Hummel—had passed away. Still, claims remained
against the city and county for both damages and injunctive
relief. Two plaintiffs, Wright and Brandy-Comer, had pending
litigation in the St. Joseph Superior Court. Two other plain-
tiffs, Bishop and Canarecci, sued based on their representa-
tion by a disabled lawyer. Plaintiff Ramos’s case had been
pending in the St. Joseph Superior Court but had been dis-
missed without prejudice in 2014 before the district court’s
grant of summary judgment. He nevertheless asserted his
claims against defendants when the district court took up the
motions for summary judgment.
The district court granted defendants’ motion for sum-
mary judgment. Many claims failed for lack of standing. The
district court dismissed the claims of the two non-disabled
plaintiffs represented by a disabled lawyer, saying broadly
that Title II of the ADA did not provide for “associational”
standing. The court dismissed Ramos’s injunctive claims
against the county for lack of standing because his case had
ended. The court also dismissed Ramos’s claims against the
city for lack of standing because the Mishawaka Courthouse,
where his case had been heard, is not located in the City of
South Bend. The court held that Wright and Brandy-Comer,
the two disabled plaintiffs with claims then pending at the St.
Joseph County Courthouse, lacked standing to proceed with
claims against the city for parking accessibility and snow re-
moval practices. The court found no evidence that they had
6 No. 14-3284
suffered past injuries that would support standing for dam-
ages, and that the prospect of future injury was too specula-
tive to support an injunction.
With those rulings, what remained were damages claims
relating to the two courthouses—St. Joseph County and
Mishawaka—and injunctive claims relating to the St. Joseph
County Courthouse. The district court disposed of those pri-
marily through summary judgment on the merits for defend-
ants. Regarding damages, the court held that there was no ev-
idence that any of the remaining plaintiffs had been injured
by any past inaccessibility at either courthouse. Regarding in-
junctive relief, the court found no evidence that the court-
house buildings remained inaccessible. The court also found
that plaintiffs did not have standing to challenge the accessi-
bility of the jury facilities because any injury would be too
speculative, and that any challenges to the restrooms were
mooted by remodeling that had been done since the begin-
ning of the lawsuit.
The district court denied plaintiffs’ motion for summary
judgment, noting that plaintiffs had no remaining underlying
claims following summary judgment for the defendants, and,
regarding the restrooms, the county was unlikely to revert to
inaccessible restrooms after remodeling to create accessible
ones.
II. Legal Standards
Plaintiffs appeal as to both their standing to sue and the
merits of their claims. Since all issues were decided on sum-
mary judgment, we review de novo questions of both standing
and the merits. See Rawoof v. Texor Petroleum Co., 521 F.3d 750,
755 (7th Cir. 2008). A moving party is entitled to summary
No. 14-3284 7
judgment if it can show “that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The moving party has
the burden of either: (1) showing that there is an absence of
evidence supporting an essential element of the non-moving
party’s claim; or (2) presenting affirmative evidence that ne-
gates an essential element of the non-moving party’s claim.
E.g., Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th Cir. 2013).
If the moving party takes the former approach, the non-
moving party must respond by offering evidence that would
allow a reasonable trier of fact to find in that party’s favor on
the issue. Id. at 1168–69. The non-moving party “need not de-
pose her own witnesses or produce evidence in a form that
would be admissible at trial, but she must ‘go beyond the
pleadings’ (e.g., produce affidavits, depositions, answers to
interrogatories, or admissions on file).” Id., quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Plaintiffs always bear the burden of showing they have
standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992). If standing is challenged by a motion for summary
judgment, plaintiffs cannot rest on “mere allegations” but
must offer evidence to support standing. Id. (internal quota-
tion marks omitted). In addition, when a federal court ad-
dresses a claim for injunctive relief, it must take care to deter-
mine whether plaintiffs have offered evidence of a “real and
immediate”—and not just a “conjectural or hypothetical”—
threat of a future violation of their rights. See City of Los An-
geles v. Lyons, 461 U.S. 95, 102 (1983) (citation and internal quo-
tation marks omitted); Scherr v. Marriot International, Inc., 703
F.3d 1069, 1074 (7th Cir. 2013).
8 No. 14-3284
Plaintiffs base their claims on the ADA and the Rehabilita-
tion Act. Title II of the ADA provides that “no qualified indi-
vidual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be sub-
jected to discrimination by any such entity.” 42 U.S.C. § 12132.
Similarly, the Rehabilitation Act provides: “No otherwise
qualified individual with a disability in the United States …
shall, solely by reason of her or his disability, be excluded
from participation in, be denied the benefits of, or be sub-
jected to discrimination under any program or activity” cov-
ered by the Act. 29 U.S.C. § 794(a). For public facilities built or
altered after January 26, 1992, the public entity must ensure
that the facility is not just possibly accessible but “readily ac-
cessible.” 28 C.F.R. § 35.151(a), (b). For older facilities that
have not been altered, however, the public entity need only
ensure that “each service, program, or activity” offered by
that public entity—as opposed to the entire facility operated
by the entity—is “readily accessible.” § 35.150(a). So long as
the entity makes these services, programs, and activities ac-
cessible, it need not “make structural changes in existing fa-
cilities.” § 35.150(b)(1).
III. Defendants’ Motion for Summary Judgment
In the district court, defendants presented evidence that
the courthouse services were readily accessible to plaintiffs
and asserted there was no evidence to the contrary. In re-
sponding, plaintiffs did not seem to understand the obliga-
tion defendants’ motion placed upon them. Instead of offering
their own evidence, plaintiffs relied primarily on comments
the district court made in its 2013 opinion denying a prelimi-
nary injunction. Those comments summarized testimony
No. 14-3284 9
about facts that might make a material difference in the case.
But as the district court made clear, those citations to a prior
opinion did not comply with the district court’s Local Rule
56-1, which requires a party opposing summary judgment to
“identif[y] the material facts that the party contends are gen-
uinely disputed so as to make a trial necessary.” N.D. Ind. L.R.
56-1(b)(2). The district court declined to rely on the factual as-
sertions supported only by references to its prior opinion.
Plaintiffs argue that the district court erred under Rule
56-1 in refusing to consider as evidence citations to the district
court’s prior opinion. How strictly to apply a local rule, how-
ever, is left to the district court’s sound discretion. See
Waldridge v. American Hoechst Corp., 24 F.3d 918, 923–24 (7th
Cir. 1994); see also Little v. Cox’s Supermarkets, 71 F.3d 637, 641
(7th Cir. 1995). We find no abuse of discretion here. Federal
Rule of Civil Procedure 56(c)(1)(A) does not identify prior ju-
dicial opinions as a form of evidence that may be used to sup-
port or oppose a motion for summary judgment. Absent a
specific citation to the actual evidence in the record—as op-
posed to the district court’s comments about such evidence at
an earlier hearing—the district court did not abuse its discre-
tion in declining plaintiffs’ invitation to search the record it-
self to determine which evidence might support their posi-
tion. See Waldridge, 24 F.3d at 923–24.
Without the factual assertions supported by only refer-
ences to the district court’s prior opinion, the only evidence
left was testimony that the elevator control panel at the St. Jo-
seph County Courthouse would not be accessible to the blind,
testimony that the elevator is very old, state court documents
for plaintiff Wright showing that she had further hearings
10 No. 14-3284
scheduled in the county courts, plaintiffs’ attorney’s admis-
sion that there is now an accessible restroom in the St. Joseph
County Courthouse, a citation to the St. Joseph County Court
Local Rules, and an affidavit by plaintiffs’ attorney describing
difficulties that people in wheelchairs face when parking near
the St. Joseph County Courthouse.
Defendants offered more plentiful evidence in support of
their motion for summary judgment, including: a sworn state-
ment by Chief Judge Manier (whose courtroom was in
Mishawaka), a sworn statement by Judge Reagan (courtroom
in South Bend), affidavits of two city employees, and interrog-
atory responses from plaintiffs Hummel, Wright, Brandy-
Comer, and Ramos.
We address each of plaintiffs’ claims in turn. We conclude
that plaintiffs failed to offer sufficient evidence in response to
defendants’ motion for summary judgment.
A. Mishawaka Courthouse
We start with the claims relating to the Mishawaka Court-
house, for which only the county is a defendant. Those claims
for damages and injunctive relief cannot withstand summary
judgment on this record.
First, no plaintiff has standing to seek injunctive relief re-
garding the Mishawaka Courthouse. Michael Ramos was the
only plaintiff who litigated a case there. His case was dis-
missed without prejudice in February 2014. No evidence in
the record suggests that any remaining plaintiff has plans to
return to that courthouse. Absent evidence supporting a “real
and immediate” threat that plaintiffs will be harmed by the
non-ADA-compliant courthouse, plaintiffs lack standing to
No. 14-3284 11
seek injunctive relief. Scherr, 703 F.3d at 1074, quoting Lyons,
461 U.S. at 102.
Second, on the damages claims, plaintiffs failed to present
evidence sufficient to survive summary judgment. They did
not rebut defendants’ evidence that the Mishawaka Court-
house is accessible. Defendants offered a statement by Chief
Judge Manier of the St. Joseph Superior Court. She explained
that all aspects of her courtroom complied with the ADA and
made clear that if anyone with a disability were struggling to
use the facilities in her courtroom, she would find a way to
accommodate that person. Without contrary evidence ex-
plaining how plaintiffs were denied court services, the county
is entitled to summary judgment on plaintiffs’ claims for dam-
ages related to the Mishawaka Courthouse.
B. Parking near the St. Joseph County Courthouse
In the district court, plaintiffs challenged (1) scarce acces-
sible parking around the St. Joseph County Courthouse and
(2) the difficulties of parking in winter months due to snow
removal practices. These are the only claims against the City
of South Bend. The district court concluded that plaintiffs had
not offered evidence that the amount of accessible parking vi-
olated the ADA. We agree. Although there was some evidence
in the record showing that parking availability had been a
problem for individuals with disabilities, the ratio of accessi-
ble spaces to the overall spaces was well above the ADA Ac-
cessibility Guidelines. See ADA Accessibility Guidelines for
Buildings and Facilities § 4.1.2(5)(a) (1991). The district court
also determined that individuals with disabilities were not
entitled to have special access to free on-street parking adja-
cent to the courthouse when such parking is not provided to
12 No. 14-3284
the public at large. Plaintiffs do not challenge this determina-
tion on appeal.
Regarding snow removal practices, the district court con-
cluded that no plaintiff had standing, and that, even if one
did, the lack of evidence in the record explaining how the
city’s current snow removal practices limit accessibility also
justified summary judgment. We agree that no plaintiff has
standing to challenge the city’s snow removal practices.
Plaintiffs’ lack of past harm prevents them from having
standing to sue for damages. Plaintiffs presented no evidence
that any plaintiff tried to visit the courthouse when there was
snow on the ground. Nor is there any evidence that plaintiffs
would have visited the courthouse in the past but were de-
terred from doing so because they knew the snow removal
practices would prevent them from having access. See Scherr,
703 F.3d at 1075 (plaintiff lacked standing to sue hotels for lack
of accessibility absent evidence that she had specific plans to
visit them); cf. Pickern v. Holiday Quality Foods Inc., 293 F.3d
1133, 1135, 1138 (9th Cir. 2002) (reversing dismissal for lack of
standing because plaintiff alleged he was deterred from going
to store because of ADA violation).
Plaintiffs’ attorney’s affidavit is insufficient to confer
standing for damages. The attorney uses a wheelchair, and he
described the obstacles he has faced due to the snow removal
practices. But he has not been a plaintiff. The record lacks ev-
idence that his obstacles to courthouse accessibility harmed
the remaining plaintiffs themselves. The attorney explained
that in “winter all curb-cut ramps within a two-block radius
of the courthouses are frequently blocked by snow and are
impassable,” and that “[o]n a number of occasions, [his wife]
found it necessary to bring a shovel to scoop out curb-cut
No. 14-3284 13
ramps filled with snow.” Plaintiffs offered this evidence to es-
tablish that they were harmed by discrimination against their
lawyer.
As a general matter, a plaintiff can be injured for purposes
of the case-or-controversy requirement of Article III of the
Constitution by unlawful activity targeting someone other
than the plaintiff so long as the plaintiff is thereby harmed.
Cf. Lujan, 504 U.S. at 562 (discussing possibility that “a plain-
tiff’s asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else”)
(emphasis in original). One can easily imagine a litigant being
harmed by her lawyer’s inability to reach the courtroom on
her behalf. But harm to the lawyer is not enough to show the
client has a claim (though the lawyer might have his own
claim). A plaintiff must offer evidence showing actual harm
or a threat of imminent harm to herself to show standing for
damages or injunctive relief for her own benefit.
We respectfully disagree with the broad language in the
district court opinion rejecting any possibility of plaintiffs
basing standing on discrimination against their lawyer. The
court wrote that “Title II of the ADA does not provide for the
sort of associational standing asserted.” In fact, the ADA rec-
ognizes that a person can be harmed by discrimination
against someone with whom he or she is associated. See 28
C.F.R. § 35.130(g) (“A public entity shall not exclude or other-
wise deny equal services, programs, or activities to an indi-
vidual or entity because of the known disability of an individ-
ual with whom the individual or entity is known to have a
relationship or association.”) (emphasis added).
14 No. 14-3284
While the law would permit such a claim, this record
simply does not support standing to seek damages on this ba-
sis. The lawyer’s affidavit, aside from general statements
about the inaccessibility of the parking, specifically alleged
only that the parking inaccessibility had affected his represen-
tation of plaintiffs Means and Matney, who have since passed
away. Plaintiffs failed to offer evidence that they themselves
suffered any injury because of discrimination against their at-
torney. Without such evidence, plaintiffs lack standing on the
basis of their association with their attorney. See Estate of Mo-
reland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005) (declining to
“scour” the record to help a party overcome summary judg-
ment).
Unable to establish any claims for damages, plaintiffs
Wright and Brandy-Comer argue that their ongoing state
cases give them standing to seek injunctive relief. They argue
that there is a chance they will be called into court on a day
when there is snow on the ground. Based on their attorney’s
past experience with snow making ramps inaccessible, they
argue that snow—along with the city’s failure to remove it
promptly—will make it difficult to reach the court on a day of
inclement weather.
While recognizing that South Bend receives significant
snowfall in most winters, we do not find evidence in this rec-
ord that plaintiffs face a “real and immediate” threat that they
will be subjected to a violation of their rights, even assuming
that the city’s failure to remove the snow constitutes a viola-
tion of the federal disability statutes. See Scherr, 703 F.3d at
1074. We could only speculate whether Wright and Brandy-
Comer’s cases will involve court appearances on future
snowy days. This is not to say that the possibility of future
No. 14-3284 15
injury must be certain, but there must be at least a substantial
risk that such harm will occur. See American Bottom Conserv-
ancy v. United States Army Corps of Engineers, 650 F.3d 652, 658
(7th Cir. 2011) (certainty not required; probable harm is
enough); Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010)
(stating that “probability of future injury counts as ‘injury’ for
the purpose of standing”). We cannot say that the risk pre-
sented here meets that standard, though if there are similar
problems in the future, the district court may need to take ac-
tion in a future case.
C. Accessibility of the St. Joseph County Courthouse
Finally, plaintiffs raise several accessibility problems
posed by various features of the St. Joseph County Court-
house: the restrooms, elevators, water fountains, facilities for
jurors, witness stands, podiums for lawyers, clerk counters,
entrance ramp, and spectator seating. Plaintiffs also argue
that there are insufficient services for the blind. Plaintiffs seek
both damages and injunctive relief on these claims.
We agree with the district court that no plaintiff has of-
fered sufficient evidence to maintain a claim for damages
against the county. Three remaining plaintiffs, Hummel,
Wright, and Brandy-Comer, have had some experience litigat-
ing in the St. Joseph County Courthouse. They have failed to
offer evidence that they encountered accessibility problems in
the courthouse, that those problems led to their inability to
access court services, or that they were discriminated against
on the basis of their disabilities.
Hummel has come the closest to offering evidence suffi-
cient for a claim for damages. Unlike the others, he actually
visited the courthouse to participate in a one-day bench trial.
16 No. 14-3284
Plaintiffs’ interrogatory answers show that neither Wright nor
Brandy-Comer has attended, let alone been harmed by at-
tending, a court hearing in the St. Joseph County Courthouse.
But Hummel failed to offer evidence of more than his mere
presence at trial. He argued to the district court that the
“Court has well summarized [in its prior decision] the diffi-
culties and problems individuals with disabilities faced in the
main Courthouse” and that “Hummel is in that group.” As
noted above, the district court did not err by refusing to con-
sider as evidence citations to its prior decision at the prelimi-
nary injunction hearing. Allegations that some litigants with
disabilities may suffer discrimination when they enter the St.
Joseph County Courthouse are not enough to show a genuine
issue of material fact about whether Hummel personally suf-
fered discrimination when he went to court. See Argyropoulos
v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (noting that
“our favor toward the nonmoving party does not extend to
drawing inferences that are supported by only speculation or
conjecture”) (internal quotation marks, citation, and altera-
tion omitted).
This inference would be especially difficult to draw given
the sworn statement of Judge Reagan, the judge who presided
over Hummel’s bench trial, indicating that she had no indica-
tion that anyone with a disability was having a difficult time
during the trial. Plaintiffs are correct, of course, that Hummel
may still have been discriminated against even if Judge
Reagan had no reason to know that. There is no need to com-
plain informally before suing (though it is hard to imagine
that an informal complaint would have been futile). But again,
plaintiffs offered no evidence to this effect.
No. 14-3284 17
The result is the same on the question of injunctive relief.
Here, the district court correctly concluded that Wright and
Brandy-Comer have standing to challenge the features of the
courthouse that could cause them to suffer future discrimina-
tion because they had cases pending at the courthouse. They
do not, however, have standing to challenge the features that
would not directly affect a litigant, such as the jury facilities,
or facilities that are inaccessible to the blind, a disability they
do not have.
It is reasonable to infer from their concrete plans to con-
tinue pursuing state court litigation that Wright and Brandy-
Comer will enter the courthouse in the future. Assuming they
are correct that the courthouse is not in compliance with the
ADA, it is also reasonable to infer that the features about
which plaintiffs complain will limit the accessibility of the
courthouse to plaintiffs for the foreseeable future. See Scherr,
703 F.3d at 1074–75. In other words, unlike the speculative risk
that they might encounter snow at the courthouse some day
in the future, there is a more substantial risk that plaintiffs will
encounter discrimination based on these more permanent fea-
tures of the courthouse.
But Wright and Brandy-Comer do not have standing to
challenge all aspects of the courthouse. Because Wright and
Brandy-Comer have failed to offer evidence explaining how
they—as non-blind individuals with disabilities—might be
injured by the lack of services for blind individuals, we con-
clude that the district court was right to deny plaintiffs stand-
ing to challenge services for the blind. Plaintiffs also do not
have standing to challenge the jury facilities, although that
poses a closer question. The district court rejected plaintiffs’
attempts to establish standing to challenge juror facilities
18 No. 14-3284
based on the mere prospect that they might someday be called
to be jurors. Although there is a chance these plaintiffs will be
called to serve as jurors at some point, there is no concrete ev-
idence that plaintiffs have already been or likely will be called
as jurors. The prospect of jury service remains too speculative
to support standing to challenge juror facilities.
On appeal, plaintiffs offer a new theory to support their
standing to challenge the facilities for jurors. They argue that,
as litigants in civil cases, plaintiffs have standing to raise the
rights of jurors who have been excluded from serving on the
jury for discriminatory reasons. See J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 128 (1994) (“We have recognized that
whether the trial is criminal or civil, potential jurors, as well
as litigants, have an equal protection right to jury selection
procedures that are free from state-sponsored group stereo-
types rooted in, and reflective of, historical prejudice.”); Ed-
monson v. Leesville Concrete Co., 500 U.S. 614, 618 (1991); see
also United States v. Harris, 197 F.3d 870, 876 (7th Cir. 1999)
(allowing challenge of peremptory strike of juror on the basis
of her disability even if only under “rationality review”).
There are two reasons, however, that we cannot base
plaintiffs’ standing on potential disability discrimination that
St. Joseph County Courthouse jurors might face. First, plain-
tiffs did not argue this theory of standing in the district court,
so it is waived. See Economy Folding Box Corp. v. Anchor Frozen
Foods Corp., 515 F.3d 718, 720 (7th Cir. 2008); Robyns v. Reliance
Standard Life Insurance Co., 130 F.3d 1231, 1237–38 (7th Cir.
1997) (“The well-established rule in this Circuit is that a plain-
tiff waives the right to argue an issue on appeal if she fails to
raise the issue before a lower court.”). Second, even if we over-
looked that waiver, plaintiffs have put nothing in the record
No. 14-3284 19
indicating more than a speculative probability that any of
their state cases will require the use of a jury or that any mem-
bers of the jury panel will be disabled. Usually, the party chal-
lenging the composition of the jury wants to undo the verdict
the jury reached. See, e.g., Edmonson, 500 U.S. at 617. The case
for standing here is far more speculative. The district court
correctly determined that these plaintiffs lacked standing to
challenge the facilities for jurors. 2
As for the features of the courthouse that plaintiffs do have
standing to challenge, the district court was correct to grant
defendants’ motion for summary judgment. Absent plaintiffs’
reliance on the district court’s order denying a preliminary in-
junction, plaintiffs failed to present evidence that the witness
stands, drinking fountains, spectator seating, lawyer podi-
ums, and clerk counters violate the ADA or Rehabilitation
Act. Plaintiffs provided evidence that the elevator is very old,
but without more that evidence would not support a finding
that the elevator renders court services not readily accessible.
See Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). There was
much debate about the accessibility problems posed by the
entrance ramp during the preliminary injunction hearing. At
least two individuals suggested it was ADA-compliant, and
the district court reminded plaintiffs that they had not pro-
duced any evidence that the ramp was not ADA-compliant.
Plaintiffs did not or could not respond. In opposing summary
judgment, they failed to offer additional evidence about ac-
cessibility problems posed by the ramp. The ramp might or
2 We are confident, however, that if genuine accessibility problems
remain, there will be future prospective jurors or others who will have
standing to seek relief in federal court.
20 No. 14-3284
might not be ADA-compliant, but plaintiffs’ lack of evidence
requires us to affirm summary judgment on the point.
Finally, on the issue that looked most promising to plain-
tiffs at the preliminary injunction hearing—whether sufficient
restroom facilities were accessible to plaintiffs using the St. Jo-
seph County Courthouse—we agree with the district court
that the county’s intervening installation of ADA-compliant
restrooms has eliminated any need for injunctive relief. Plain-
tiffs emphasize that at one point a person with a disability
would have needed to go down to the courthouse basement
and travel through a tunnel ramp to the neighboring county
building to use an ADA-compliant restroom. That led the dis-
trict court to conclude in its preliminary injunction opinion
that “it appears that there are no public restrooms accessible
to individuals in wheelchairs in the Courthouse itself, and
there is no indication that the County accommodates individ-
uals with disabilities by reassigning cases involving disabled
parties, attorneys, witnesses, or spectators to fully accessible
facilities elsewhere.” As a result, the district court thought
that there was at least a reasonable likelihood that plaintiffs
could establish that the lack of restroom access rendered the
courthouse less than readily accessible.
But the restroom situation has changed since that decision.
The record indicates that there are now ADA-compliant rest-
rooms in the St. Joseph County Courthouse. Plaintiffs con-
ceded as much in their cross-motion for summary judgment,
making clear that there was no longer a dispute of material
fact that the county installed accessible restrooms in the court-
house.
Where, as here, an issue is no longer “live” and the parties
“lack a legally cognizable interest in the outcome,” the claim
No. 14-3284 21
is “moot and must be dismissed for lack of jurisdiction.” St.
John’s United Church of Christ v. City of Chicago, 502 F.3d 616,
626 (7th Cir. 2007), quoting Powell v. McCormack, 395 U.S. 486,
496 (1969); see also Brown v. Bartholomew Consolidated School
Corp., 442 F.3d 588, 596 (7th Cir. 2006) (“A case becomes moot
when a court’s decision can no longer affect the rights of liti-
gants in the case before them and simply would be an opinion
advising what the law would be upon a hypothetical state of
facts.”) (citation and internal quotation marks omitted). It is
not enough that the controversy was live at an earlier stage of
the case. Article III requires a live controversy throughout the
existence of the case. See St. John’s United Church of Christ, 502
F.3d at 626, citing Arizonans for Official English v. Arizona, 520
U.S. 43, 68 n.22 (1997). Because the county provided plaintiffs
the relief they sought on this claim, plaintiffs do not currently
have an interest in maintaining this claim.
That said, a defendant’s decision to comply voluntarily
with a plaintiff’s demands does not always moot a request for
injunctive relief. There may still be a risk that a defendant
could reverse course once a claim is dismissed. See Friends of
the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528
U.S. 167, 189 (2000); Chicago United Industries, Ltd. v. City of
Chicago, 445 F.3d 940, 947 (7th Cir. 2006). But voluntary con-
duct can moot a case “if the defendant can demonstrate that
there is no reasonable expectation that the wrong will be re-
peated.” Chicago United Industries, Ltd., 445 F.3d at 947 (cita-
tion and internal quotation marks omitted); see also Friends of
the Earth, Inc., 528 U.S. at 190 (“[A] defendant claiming that its
voluntary compliance moots a case bears the formidable bur-
den of showing that it is absolutely clear the allegedly wrong-
ful behavior could not reasonably be expected to recur.”).
22 No. 14-3284
When the defendant is a government actor, however, we or-
dinarily presume that the objectionable behavior will not re-
cur. See Chicago United Industries, Ltd., 445 F.3d at 947. In this
case, the structural alterations to the courthouse would be dif-
ficult to undo, and there is no evidence that the county in-
tends to prevent individuals with disabilities from using these
ADA-compliant restrooms in the future. The district court
properly dismissed the claims related to the restrooms.
IV. Plaintiffs’ Cross-Motion for Summary Judgment
For the same reasons, we also affirm the district court’s de-
cision to deny plaintiffs’ cross-motion for summary judgment.
Plaintiffs sought a permanent injunction and a declaratory
judgment requiring the county to maintain the restrooms it
installed and to formalize the policy the county courts seem
to have adopted to transfer a case involving a person with a
disability to an ADA-compliant courtroom. Because all the
underlying claims have since been disposed of—and there is
no evidence that defendants will cease giving plaintiffs the ac-
commodations they desire—there is nothing the county is
currently doing or failing to do that these particular plaintiffs
might still challenge.
Absent an ongoing challenge about whether the county
has failed to make readily accessible to plaintiffs the court ser-
vices it provides, that portion of this case has become, at least
on this record, “an abstract dispute about the law not linked
to the rights of a particular plaintiff.” Milwaukee Police Ass’n v.
Board of Fire & Police Comm’rs, 708 F.3d 921, 932–33 (7th Cir.
2013) (citation and internal quotation marks omitted); see also
Volkman v. Ryker, 736 F.3d 1084, 1091 n.1 (7th Cir. 2013) (“If the
injunctive relief is moot, we doubt whether, on these facts, the
declaratory judgment request can stand alone.”), citing Rhodes
No. 14-3284 23
v. Stewart, 488 U.S. 1, 4 (1988), and Ashcroft v. Mattis, 431 U.S.
171, 172 (1977). The district court correctly denied plaintiffs’
request for a permanent injunction and declaratory relief ra-
ther than adjudicate a hypothetical issue. 3
For all these reasons, the judgment of the district court is
AFFIRMED.
3 Plaintiffs make clear that one reason they sought declaratory relief
was so that they might be considered prevailing parties for the purposes
of receiving attorney fees. Plaintiffs argue that the defendants’ changes on
the issues on which they seek declaratory relief—installing new restrooms
and adopting a policy of accommodation—came about in response to their
lawsuit. The district court found no evidence in the record establishing
plaintiffs’ claims to have been the catalysts for these changes But even if it
were true that plaintiffs’ suit caused defendants to change, we would not
be able to treat plaintiffs as prevailing parties under the so-called “cata-
lyst” theory rejected by the Supreme Court in Buckhannon Board & Care
Home, Inc. v. West Virginia Department of Health & Human Resources, 532
U.S. 598, 600 (2001). The Court explained that absent a court order on the
merits, plaintiffs cannot be considered a prevailing party even if they
achieved their “desired result because the lawsuit brought about a volun-
tary change in the defendant’s conduct.” Id. Plaintiffs recognized as much
in their briefing before us and made clear that they seek to preserve the
issue for possible Supreme Court review.