UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

SANTIAGO ABREU, 

 Plaintiff, 

 v. 

HAROLD’S CHICKEN SHACK #60, 

LLC, 

 Defendant. 

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Case No. 2:16-CV-243-JD 

OPINION AND ORDER

Plaintiff Santiago Abreu (“Abreu”) claims that Defendant Harold’s Chicken Shack #60, 

LLC (“Harold’s”), is violating Title III of the Americans With Disabilities Act (the “ADA”). See

42 U.S.C. § 12181 et seq. Because Abreu’s Complaint failed to establish his standing to pursue 

his claim for prospective relief against Harold’s, the Court afforded him an opportunity to 

substantiate the allegations of his Complaint. Thus, Abreu filed an Amended Complaint [DE 27], 

to which Harold’s has moved to dismiss for lack of standing [DE 28]. In response, Abreu 

unconventionally filed its own verified motion [DE 29]—that is, one for summary judgment, but 

it is unaccompanied by any evidence. For the reasons stated below, the Court denies both 

motions. 

I. FACTUAL BACKGROUND 

Because no admissible evidence has been produced in support of the motions, the Court 

sets forth the facts asserted in the Amended Complaint [DE 27]. The allegations establish that 

Harold’s is a public restaurant located at 6690 Broadway in Merrillville, Indiana. Abreu is a 

resident of Palm Beach County, Florida, who visited Harold’s on March 24, 2016, as a customer. 

However, Abreu was unable to fully and safely access Harold’s pathway to the entrance, check-
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out counter, and men’s restroom due to architectural barriers that prevented use of his wheelchair 

(which is needed on account of Abreu’s suffering from multiple sclerosis and paraparesis). 

Abreu indicates that he will return to the Merrillville area next Summer, as he does twice every 

year, in order to seek treatment for his disability and to visit friends. Abreu alleges that he would 

return to Harold’s if it ceased its discriminatory conduct and modified the facility in order to 

accommodate individuals with physical disabilities. Thus, Abreu asks the Court to declare that 

Harold’s is in violation of the ADA and related accessibility guidelines, to require Harold’s to 

comply with the ADA, and to award the fees, costs, and expenses associated with the litigation. 

Rather than file an Answer to the Amended Complaint, Harold’s moved to dismiss the 

Amended Complaint arguing that Abreu lacks standing to bring the ADA claim.

II. STANDARD OF REVIEW 

Rule 12(b)(1) authorizes dismissal of claims over which the Court lacks subject matter 

jurisdiction. In analyzing a motion to dismiss, the Court must accept as true all well-pled factual 

allegations and must draw all reasonable inferences in favor of the plaintiff. Long v. Shorebank 

Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). The burden of establishing proper federal subject 

matter jurisdiction rests on the party asserting it, which in this case is Abreu. Muscarello v. Ogle 

Cnty. Bd. of Comm’rs, 610 F.3d 416, 425 (7th Cir. 2010). 

Although Abreu argues that the motion to dismiss ought to be converted into a motion for 

summary judgment, see, Fed. R. Civ. P. 12(d), the Court declines the request. First, generally 

speaking, a “district court may properly look beyond the jurisdictional allegations of the 

complaint and view whatever evidence has been submitted on the issue to determine whether in 

fact subject matter jurisdiction exists.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th 

Cir. 1999). Second, with respect to this case, no evidence was submitted for the Court’s 

consideration. 
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If, at some point, Harold’s intends to lodge a factual challenge rather than a facial 

challenge to jurisdiction, then it will need to submit evidence (not just threadbare allegations) 

calling Abreu’s standing into question. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 

440, 443-46 (7th Cir. 2009) (internal citation omitted). At that point, “[t]he presumption of 

correctness that . . . [is] accord[ed] to a complaint’s allegations fall[] away,” and Abreu would 

then have the burden of coming forward with competent proof that standing exists. See id. 

(citation omitted). 

III. DISCUSSION 

Title III of the ADA prohibits discrimination on the basis of disability in places of public 

accommodation by the owner, lessee, or operator of such a place. 42 U.S.C. § 12182(a). “The 

core meaning of this provision, plainly enough, is that the owner or operator of a store, hotel, 

restaurant, . . . or other facility (whether in physical space or in electronic space . . . ) that is open 

to the public cannot exclude disabled persons from entering the facility and, once in, from using 

the facility in the same way that the nondisabled do.” Doe v. Mut. of Omaha Ins. Co., 179 F.3d 

557, 559 (7th Cir. 1999) (internal citation omitted). Although the ADA “generously confer[s] the 

right to be free from disability-based discrimination, Congress [cannot] abrogate the Art. III 

minima: A plaintiff must always have suffered ‘a distinct and palpable injury to himself,’ that is 

likely to be redressed if the requested relief is granted.” Ortiz v. Westchester Med. Ctr. Health 

Care Corp., No. 15 CIV. 5432 (NSR), 2016 WL 6901314, at *5 (S.D.N.Y. Nov. 18, 2016) 

(internal citations and citations omitted). Thus, in order to establish standing, a plaintiff must 

show: “(1) injury in fact, which must be concrete and particularized, and actual and imminent; 

(2) a causal connection between the injury and the defendant’s conduct; and (3) redressability.” 

Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1073 (7th Cir. 2013) (quoting Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992)). 
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The second and third elements of Lujan are not at issue here,1

 and the only question is 

whether Abreu is presently suffering a sufficiently “concrete and particularized” and “actual or 

imminent” injury to satisfy the Court’s “injury in fact” requirement. See Scherr, 703 F.3d at 

1074. Because Abreu seeks injunctive relief, and to establish injury in fact when seeking 

prospective injunctive relief, Abreu must allege a “real and immediate” threat of future violations 

of his rights (in this case, his rights under the ADA). Id. (citing City of Los Angeles v. Lyons, 461 

U.S. 95, 102 (1983)); see Hummel v. St. Joseph Cty. Bd. of Comm'rs, 817 F.3d 1010, 1016 (7th 

Cir. 2016). The threat of future injury can be shown by an intent to return to or use the public 

accommodation, Scherr, 703 F.3d at 1074, but it can also be shown by establishing that the 

plaintiff is reasonably deterred from the accommodation because of the discrimination. See 

Access Living of Metro. Chicago v. Uber Techs., Inc., 351 F. Supp. 3d 1141, 1149 (N.D. Ill. 

2018) (citing Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 949 (9th Cir. 2011) (en 

banc); Scherr v. Marriot Int'l, Inc., 833 F.Supp.2d 945, 951 (N.D. Ill. 2011), aff'd, 703 F.3d 1069 

(7th Cir. 2013)). 

While it is true that Abreu resides in the Southern Region of the United States, which is a 

significant distance from Merrillville, Indiana, Abreu claims that he has traveled to the 

Merrillville area twice each year for purposes of seeking medical treatment for his disability and 

visiting friends. He also alleges that he “will return” next July for these same reasons. Per Abreu, 

during these regularly scheduled annual trips to the Merrillville area, were it not for Harold’s 

 

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 The uncontested allegations of the Amended Complaint establish that Abreu visited Harold’s 

on March 24, 2016, as a customer that required use of a wheelchair. At that time, Abreu was 

unable to safely access Harold’s uneven and overly steep pathway to the entrance, unable to use 

the excessively high check-out counter, and unable to fully utilize the men’s restroom facilities 

due to architectural barriers. Therefore, it is clear that Abreu’s assertions, taken as true, establish 

that he suffered a past injury. And, per Abreu, there is no indication that the owner or operator of 

Harold’s has attempted to remedy these alleged barriers. 
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failing to reasonably accommodate the physically disabled (as he personally experienced), then 

Abreu would return to Harold’s. 

Given these factual contentions, the Court finds that at this stage of the proceedings, 

Abreu faces a “real and immediate” threat that he will be subjected to a violation of his rights 

sufficient to confer standing. See Hummel, 817 F.3d at 1019–20 (7th Cir. 2016) (the possibility 

of future injury need not be certain, but there must be at least a substantial risk that such harm 

will occur) (citing American Bottom Conservancy v. United States Army Corps of Engineers, 650 

F.3d 652, 658 (7th Cir. 2011) (holding that certainty is not required; but 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”)). Abreu’s future plans (as stated at the time 

the Amended Complaint was filed) are much more specific than the vague and speculative “some 

day” intentions that troubled the Supreme Court in Lujan. See Lujan, 504 U.S. at 564 (holding 

that “‘some day’ intentions—without any description of concrete plans, or indeed even any 

specification of when the some day will be—do not support a finding of the “actual or imminent” 

injury that our cases require.”). Moreover, Abreu’s upcoming plans to return every year to the 

same area for medical treatment and to visit friends (as he has in the past) are sufficient to 

support a plausible inference that Abreu would like to return to Harold’s, but for its continued 

structural barriers for the wheelchair bound. See id. Given Abreu’s past history of and future 

plans to travel to the Merrillville area, along with his affirmative desire to frequent Harold’s but 

for the alleged violations, Abreu has standing to pursue his claim for injunctive relief against 

Harold’s. 

One last matter must be resolved—that is, Abreu’s motion for summary judgment. 

Despite the fact that judicial records reveal that Abreu is a plaintiff in just over two hundred state 
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and federal cases (pending in Arizona, Colorado, Florida, Illinois, Indiana, Michigan, and New 

York), with his attorney of record representing him in at least twenty of those cases, the 

plaintiff’s motion for summary judgment fails to comply with the federal rules. Specifically, no 

admissible evidence was provided in support of the motion for summary judgment in accordance 

with Federal Rule of Civil Procedure 56(c)(1). While the motion itself is verified, it only states 

unhelpful legal conclusions [DE 29]. At the summary judgment stage, the plaintiff can no longer 

rest on mere allegations, but must set forth by affidavit or other evidence specific facts. See

Midwest Fence Corp. v. United States Dep't of Transportation, 840 F.3d 932, 939 (7th Cir. 

2016). Nor will the Court permit the parties to rely on prior judicial opinions or mooted 

pleadings as a form of evidence (as Abreu did) to support or oppose summary judgment. See 

Hummel, 817 F.3d at 1017 (citing Rule 56(c)(1)(A)). Finally, because the motion for summary 

judgment was simultaneously filed as a response to Harold’s motion to dismiss, it appears 

Harold’s only replied to the issue of standing, rather than taking the opportunity to address the 

merits of any ADA violation. Rather than risk a dispositive ruling based on a misstep of counsel, 

compliance with the rules will ensure that the Court can resolve any motion for summary 

judgment on the merits. See, e.g., Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 

(7th Cir. 2010). 

These procedural problems have helped take this case long past the discovery stage and 

its needed disposition (by way of a properly filed dispositive motion or trial). Accordingly, 

Harold’s has until April 10, 2019, to file an Amended Answer to the Amended Complaint, and 

the parties have until May 6, 2019, to file any motions for summary judgment, with any 

responses due by June 3, 2019, and any replies to be filed by July 17, 2019. 
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IV. CONCLUSION 

For the reasons set forth above, the Court DENIES the motion to dismiss [DE 28] and the 

motion for summary judgment [DE 29]. 

 SO ORDERED. 

 ENTERED: March 27, 2019 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court