IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JANICE LAROSA, on Behalf of

NOEL LAROSA, a Minor,

Plaintiff,

v.

WALGREEN CO. and TAKE CARE

HEALTH SYSTEMS, INC.,

 Defendants.

Case No. 12 C 932

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s

Amended Complaint. For the reasons stated herein, the Motion is

granted in part and denied in part.

I. BACKGROUND

Plaintiff Janice LaRosa (“Janice”) sues Defendants Walgreen

Co. (“Walgreens”) and its wholly-owned subsidiary Take Care Health

Systems (“Take Care”) on behalf of her minor son, Noel. Plaintiff

alleges violations of the Americans with Disabilities Act (the

“ADA”) and the Rehabilitation Act (the “RA”). (This Motion was

originally brought by four defendants, but two have since been

dismissed by agreement from the case.) Take Care Health Systems

runs the Take Care Clinics found inside some Walgreens stores,

which provide retail medical care to consumers on a walk-in or

appointment basis.

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Plaintiff’s allegations are accepted as true for the purposes

of this Motion to Dismiss. Noel is sixteen years old, and was

adopted by the LaRosas at the age of seven. Among other

challenges, Noel has Amniotic Band Syndrome, and as a result (among

other things) is missing digits on his right hand and foot, and has

webbed digits on his left hand and foot. (There is no dispute that

Noel is disabled under the ADA and RA.) 

Noel wished to try out for his high school soccer team in the

fall of 2011, but needed to get a physical examination that cleared

him to play. Janice could not schedule an appointment with Noel’s

pediatrician in time. Instead, she contacted the Take Care Clinic

located inside the Walgreens at 1825 Willow Road in Northfield,

Illinois, and was told that they could see Noel for a sports

physical without an appointment.

A physician’s assistant (“PA”) instructed Janice to fill out

a “Preparticipation Physical Examination form” for Noel. The form

listed 51 questions regarding Noel’s medical history, and stated

that the parent should “[c]ircle questions you don’t know the

answer to.” Because Noel is adopted, Janice could not answer

certain questions, and explained as much to the PA who reviewed the

form. 

The PA began examining Noel by taking his blood pressure,

asking him to jump up and down, and listening to his heart, among

other things. When Noel took off his shoes so that he could be

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weighed, the PA stopped the examination and asked Noel and Jan to

step outside the office. Shortly thereafter, she took them to see

Leigh Harmon (“Harmon”), a nurse practitioner. Harmon asked why

there were incomplete answers in Noel’s paperwork. After Janice

explained Noel’s adoptive status, Harmon stated that the

examination was over because Walgreens had a policy against

examining adopted children.

Both Harmon’s supervisor and the Walgreens store manager, when

consulted, confirmed that Walgreens would not examine Noel. Janice

and Noel could not find someone to perform the physical in time,

and Noel was not able to try out for the soccer team. 

Janice later communicated with Sandra Ryan (“Ryan”), Take

Care’s Chief Nurse Practitioner Officer. Ryan stressed the

importance of obtaining a family history, when feasible, to

ascertain medical risks, but also emphasized that Take Care clinics

will see and evaluate all children consistent with their policies

and procedures. Janice also learned that nurse practitioners have

absolute discretion over whom to see at the clinics, and can turn

anyone away for any reason.

Plaintiff alleges that Defendants turned Noel away because of

his disability, violating Title III of the ADA, 42 U.S.C. § 12182,

and Section 504 of the RA, 29 U.S.C. § 794. Alternatively,

Plaintiff alleges that Defendants’ policy of absolute discretion

resulted in a disparate impact on Noel, similarly violating those

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statutes. Defendants have moved to dismiss under FED. R. CIV.

P. 12(b)(6) for failure to state a claim upon which relief can be

granted.

II. LEGAL STANDARD

On a motion to dismiss under Rule 12(b)(6), the Court accepts

as true all well-pleaded facts in Plaintiffs’ Complaint and draws

all inferences in her favor. Cole v. Milwaukee Area Tech. Coll.

Dist., 634 F.3d 901, 903 (7th Cir. 2011). A 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). Plaintiffs need

not allege “detailed factual allegations,” but must offer more than

conclusions or “a formulaic recitation of the elements of the cause

of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). “Naked assertion[s] devoid of further factual enhancement”

will not suffice – a complaint “must contain sufficient factual

matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50

(2009).

III. DISCUSSION

A. Count I: The Americans with Disabilities Act

To state a claim under Title III of the ADA, Plaintiff must

allege that: (1) Noel is disabled; (2) the Defendants are private

entities that own, lease, or operate a place of public

accommodation; and (3) Noel was denied the opportunity to

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participate in or benefit from services or accommodations on the

basis of his disability. Torrence v. Advanced Home Care, Inc.,

No. 08 C 2821, 2009 WL 1444448, at *3 (N.D. Ill. May 21, 2009). A

private person being subjected to discrimination on the basis of

disability, or who reasonably believes that he is about to be

subjected to such discrimination, may seek injunctive relief under

Title III. 42 U.S.C. § 12188; 28 C.F.R. § 36.501(a). 

Defendants argue that the Plaintiff fails to state a claim

under the ADA because: (a) Noel was not denied an examination based

on his disability; (b) the Complaint insufficiently specifies the

nature of the alleged discrimination; and (c) Plaintiff lacks

standing under the ADA because Plaintiffs cannot sue under

Title III for a purely past harm. Because standing is the

jurisdictional issue the Court turns first to that question. 

1. Standing for Injunctive Relief

Defendants argue that Plaintiff cannot seek redress under

Title III of the ADA for purely past discrimination; that is, they

argue that Plaintiff lacks standing to seek an injunction, the only

relief available under Title III. (Candidly, Defendants did not

clearly frame the issue as one of standing in their Motion.

However, Plaintiff fairly interpreted the argument as challenging

her standing, and Defendants followed Plaintiff’s lead in their

Reply. The Court agrees with Plaintiff’s interpretation, and

follows suit.) 

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Standing to obtain injunctive relief requires a current or

imminent injury that is (a) causally connected to the conduct to be

enjoined and (b) likely redressable through a favorable ruling. 

See Schirmer v. Nagode, 621 F.3d 581, 585 (7th Cir. 2010).

Plaintiff argues that under Title III, she need only show that the

past discrimination deters her from returning to the Take Care

clinic with Noel, not that she and Noel have a specific plan to

return to that clinic. See Scherr v. Marriot International, Inc.,

No. 10 C 7384, 2011 WL 2606184, at *6 (N.D. Ill. June 29, 2011)

(adopting the “deterrent effect doctrine” recognized in several

other circuits).

Even if the Court adopted the “deterrent effect” approach,

however, Plaintiff has not demonstrated standing. The only current

harm identified in the briefing is Noel’s inability to try out for

soccer, which could not be redressed by this suit. Plaintiff

alleges neither deterrence nor an intent to return to the clinic.

Indeed, the Complaint alleges that Janice and Noel only visited the

clinic because Noel’s physician was unavailable. As the Complaint

clearly demonstrates that a repeat visit is unlikely regardless of

the alleged discrimination, Count I is dismissed with prejudice for

lack of jurisdiction.

B. Count II: The Rehabilitation Act

To state a claim under Section 504 of the Rehabilitation Act,

Plaintiff must plead that (1) Noel had a disability which brings

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him with the statute; (2) that he was “otherwise qualified” for the

services he sought; (3) that he was discriminated against solely by

reason of his disability; and (4) that the “program or activity in

question receives federal financial assistance.” Grzan v. Charter

Hospital of Nw. Ind., 104 F.3d 116, 119 (7th Cir. 1997).

1. Standing

The Court turns first to the question of standing. Although

Defendants do not challenge Plaintiff’s standing under the RA,

courts must ensure that they have proper jurisdiction. Daley v.

Grajec, 06-CV-1493, 2007 WL 2286132, at *6 (S.D. Ind. Aug. 7,

2007). Unlike under the ADA, private plaintiffs may recover

compensatory damages under the RA. Tennessee v. Lane, 541 U.S.

509, 517 (2004). Based on the concrete harm alleged from the past

discrimination, as discussed below, the Court concludes that

Plaintiff has standing for a damages claim, though not for

injunctive relief (that portion of Count II is, as above, dismissed

with prejudice). Parvati Corp. v. City of Oak Forest, 630 F.3d

512, 516 (7th Cir. 2010) (a plaintiff must demonstrate standing for

each form of relief sought).

The Court turns next to the merits. Defendants argue that

Plaintiff cannot state a claim under the RA because: (a) Noel was

not denied an examination solely on the basis of his disability; 

(b) Noel was not “otherwise qualified” for the physical

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examination; and (c) Plaintiff has insufficiently alleged that Take

Care directly receives federal funds.

2. Denial of Exam “Solely on the Basis of” Disability

Defendants argue that Noel was not denied a physical

examination solely by reason of his disability. Instead,

Defendants argue, the Amended Complaint establishes that Noel was

turned away because Janice could not provide a full medical history

for him, as required by Take Care policy. 

Reading Defendants’ Memorandum generously, the Court

incorporates their very similar, but more detailed, argument on

this point under Count I. There, Defendants argue that while

Janice was given a number of different explanations for why Noel

was turned away, all of the various explanations centered around

Janice’s failure to provide his complete medical history. This

establishes that Take Care has a policy against conducting

examinations without a complete medical history, Defendants argue,

and therefore that Noel could not have been denied an examination

solely on the basis of his disability.

Defendants misconstrue the thrust of Plaintiff’s Complaint –

that Take Care’s explanations were purely pretextual. Although the

question is a close one, Plaintiff has alleged sufficient facts —

for example, that the medical form appears to anticipate some

unanswered questions, and that (despite the incomplete medical

history) the PA examined Noel until seeing his feet – to make the

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claim of pretext plausible. That is, Plaintiff has alleged

sufficient facts to make a factual issue of whether Take Care truly

had such a policy, or how stringently it was enforced. Contrary to

Defendants’ implication, Plaintiff has not admitted the validity of

their explanations merely by repeating them to the Court. See Gale

v. Hyde Park Bank, 384 F.3d 451, 452 (7th Cir. 2004) (“the

plaintiff may tell the court what his adversary has said without

throwing in the towel.”)

Accordingly, Defendants’ assertions that they did not

discriminate against Noel are insufficient to warrant dismissal at

this stage; their arguments will have another opportunity at

summary judgment, when the record will be clearer. Factual

disputes are not to be resolved on a motion to dismiss; determining

the sufficiency of the complaint is not the same as determining

whose version of events to believe. See Swanson v. Citibank, 614

F.3d 400, 404 (7th Cir. 2010).

3. Whether Noel was “Otherwise Qualified” for an Exam

Defendants similarly argue that Noel was not “otherwise

qualified” for an exam because he did not provide a complete

medical history, as required by Take Care policy. As noted above,

however, Plaintiff has set forth sufficient facts in the Amended

Complaint to create a factual issue (at least at this stage)

regarding the extent and rigor of Take Care’s policy requiring a

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complete medical history. Therefore, Defendants’ Motion to Dismiss

is denied to that extent.

4. Receipt of Federal Funds

As noted above, to state a claim under the RA, Plaintiff had

to allege that Defendants received federal funds. Such federal

financial assistance includes grants, loans, contracts, or any

other arrangements by which a federal agency makes financial

assistance available to a defendant. See 28 C.F.R. § 41.3(e). (28

C.F.R. § 41.3 is part of the Department of Justice’s set of

“coordinating” regulations under the RA; each federal agency adopts

its own version, but all are required to be consistent. See id.

§ 41.4(a); Helen L. v. DiDario, 46 F.3d 325, 330-31 (3d Cir.

1995).)

The Amended Complaint alleges that Walgreens receives federal

funds, including Medicare and Medicaid payments. Am. Compl. ¶ 10.

It also alleges “on information and belief” that Take Care receives

federal funds. Id. at ¶ 95. Defendants object that the RA extends

only to direct recipients of federal funds, and that Plaintiff did

not specifically allege that Take Care is a direct recipient.

(Defendants concede that directly receiving Medicare and Medicaid

payments qualifies, and therefore that this element is adequately

pled against Walgreens.) Defendants do not appear to claim that

Take Care actually receives no direct federal assistance, but only

that Plaintiff omitted the word “direct” from paragraph 95.

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Defendants attempt to split the hair too finely. First, where

pleadings concern matters within the defendant’s knowledge,

allegations do not categorically fail because they are based upon

“information and belief.” See Simonian v. Blistex, Inc., No. 10-

01201, 2010 WL 4539450, at *3 (N.D. Ill. Nov. 3, 2010). 

Furthermore, given the liberal pleading standard under Rule 8, the

Court will not conclude that Plaintiff’s claim against Take Care

fails for lack of the word “direct” in the funding allegation.

Accordingly, although the Court dismisses Plaintiff’s claim for

injunctive relief under Count II (without prejudice), Defendants’

Motion to Dismiss Count II is denied as to the damages claim.

IV. CONCLUSION

For the reasons stated herein, the Court rules as follows:

1. Defendants’ Motion to Dismiss as to Count I is granted

with prejudice; 

2. Defendants’ Motion to Dismiss as to the injunctive claim

under Count II with prejudice is granted; and

3. Defendants’ Motion to Dismiss as to the damages claim

under Count II is denied. 

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE:6/29/2012

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