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

Now before the Court are the parties’ cross motions for summary judgment [DE 20; DE 

22] concerning Plaintiff Santiago Abreu’s claim that Defendant Harold’s Chicken Shack #60, 

LLC, violated Title III of the Americans With Disabilities Act (the “ADA”), 42 U.S.C. § 12181 

et seq. Having considered the parties’ submissions [DE’s 20-25], the motions for summary 

judgment [DE 20; DE 22] are STRUCK with leave to re-file at a later date so that jurisdiction 

may first be sufficiently established in accordance with the Court’s discussion below.

I. BACKGROUND

The facts asserted in the largely uncontested complaint, see Fed. R. Civ. P. 8(b)(6),

establish that Harold’s Chicken Shack #60 (“Harold’s”) is a public restaurant located at 6690 

Broadway in Merrillville, Indiana. Defendant Santiago Abreu (“Abreu”), a resident of Palm 

Beach County, Florida, visited Harold’s on March 24, 2016, both as a “bona fide patron” and 

“tester” of ADA compliance. However, Abreu was unable to fully and safely access Harold’s 

pathway to the entrance, check-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). Thus, Abreu asks the Court to declare that Harold’s is in violation of 

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the ADA, to enjoin Harold’s from conducting business until the facility complies with the ADA,

and to award the fees, costs, and expenses associated with the litigation.1

Rather than deny the alleged ADA violations, Harold’s (owner) responded to the 

allegations by: (1) answering the complaint and contending that Abreu lacks standing to bring 

the ADA claim because he does not live near Indiana and is unlikely to revisit the restaurant [DE 

19]; and (2) moving for summary judgment on the grounds that Harold’s is not the party 

responsible for making the structural changes necessary to comply with the ADA because (based 

on an affidavit from the restaurant’s operator [DE 21-1], which is the only evidence provided by 

either party for purposes of summary judgment), Harold’s is merely leasing the premises. 

Because the former issue raises a legitimate concern over this Court’s jurisdiction, the Court 

addresses the problems associated with plaintiff’s standing. Even though the parties failed to

directly raise the issue in their motions for summary judgment, the Court must engage in this 

jurisdictional inquiry. Hay v. Ind. State Bd. of Tax Comm'rs, 312 F.3d 876, 879 (7th Cir. 2002) 

(“[N]ot only may the federal courts police subject matter jurisdiction sua sponte, they must.”) 

(citations omitted).

II. STANDARD OF REVIEW

Summary judgment is proper when the movant shows 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). A “material” fact is one identified by the substantive law as affecting the outcome of the 

suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with 

respect to any material fact when “the evidence is such that a reasonable jury could return a 

 1 Despite referencing compensatory damages in the complaint’s introductory paragraph, Abreu’s 

prayer for relief did not seek the imposition of compensatory damages [DE 1 at ¶ 48 A-H], nor 

did Abreu’s summary judgment filings address compensatory damages [DE 22; DE 23].

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verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a 

rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and 

summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In 

determining whether a genuine issue of material fact exists, this Court must construe all facts in 

the light most favorable to the non-moving party and draw all reasonable and justifiable 

inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. 

Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).

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). 

However, the Seventh Circuit has made it clear that in order for the Court to have 

jurisdiction over this claim, Abreu must have standing to bring it. Scherr v. Marriott Int’l, Inc., 

703 F.3d 1069, 1073 (7th Cir. 2013) (addressing a claim under Title III of the ADA; “Standing to 

bring and maintain a suit is an essential component of this case-or-controversy requirement.”). 

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.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560 (1992)). At least in the context of Title III of the ADA, the Seventh Circuit has stated 

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that to support a claim for prospective relief, “a plaintiff must allege past injury under the ADA; 

show that it is reasonable to infer from her complaint that this discriminatory treatment will 

continue; and show that it is also reasonable to infer, based on the past frequency of her visits 

and the proximity of [the public accommodation] to her home, that she intends to return to [the 

public accommodation] in the future.” Id. (brackets in original; internal quotations omitted) 

(quoting Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008)). A federal court must 

take care to determine whether plaintiff has offered evidence of a “real and immediate”—and not 

just a “conjectural or hypothetical”—threat of a future violation of his rights. Hummel v. St. 

Joseph Cty. Bd. of Comm'rs, 817 F.3d 1010, 1016 (7th Cir. 2016) (citing City of Los Angeles v. 

Lyons, 461 U.S. 95, 102 (1983)). Plaintiff always bears the burden of showing standing to sue. 

Id. (citing Lujan, 504 U.S. at 561).

Abreu alleged in his unverified complaint that after visiting Harold’s a single time in 

March 2016, he was denied full and safe entry into the restaurant and, once in, from using the 

facility in the same way that the nondisabled do. It is reasonable to infer that this discriminatory 

treatment occurred and will likely continue, given Harold’s non-denial of the violations, along 

with Harold’s admission that it accommodates the disabled by taking their food orders out to 

their vehicles. 

However, the record is devoid of any evidence that would allow a reasonable inference 

that based on Abreu’s single visit to Harold’s, during a random trip from his residence in Florida, 

he intends to return to Harold’s. While Abreu generally asserted in his complaint that he intends

to return to Harold’s at some unknown point in the future as a customer and ADA tester,

Harold’s denies this point. Moreover, at no point does Abreu claim that he would visit Harold’s

but for the alleged ADA violations, and he does not even show an intent to return to the

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geographic area of Merrillville, Indiana (where Harold’s is located), except to confirm ADA 

compliance. Accordingly, on the record before it, the Court is unable to reasonably infer, based 

on the non-existence of other past visits to the restaurant, Harold’s living on the other side of the 

country, and his unspecified vague assertion that he’ll likely return at some point in the future, 

that Abreu has established standing to pursue his claim for injunctive relief against Harold’s. See 

Scherr, 703 F.3d at 1075 (citing Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) 

(“Although plaintiffs need not engage in the ‘futile gesture’ of visiting a building containing 

known barriers that the owner has no intention of remedying, they must at least prove knowledge 

of the barriers and that they would like to visit the building in the imminent future but for those 

barriers.”) (citations omitted)); see also, Matthews v. Waukesha Cnty., 759 F.3d 821, 824 (7th 

Cir. 2014) (“Although [a non-movant on summary judgment] is entitled to the benefit of 

reasonable inferences, that does not extend to inferences that are supported only by speculation 

or conjecture.”) (citation omitted).

Thus, despite being past the discovery stage in this litigation, Abreu has not provided 

sufficient allegations, nor offered any evidence, to show that his threat of future injury is either 

concrete, particular, actual or imminent, so as to give him standing at this time to pursue his 

claim for prospective relief against Harold’s. Given this deficiency, “it is within the trial court’s 

power to allow or to require the plaintiff to supply, by amendment to the complaint or by 

affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing.” 

Warth v. Seldin, 422 U.S. 490, 501-02 (1975). If, after an opportunity to substantiate the 

allegations of his complaint with respect to his standing to pursue the lawsuit, “the plaintiff’s 

standing does not adequately appear from all materials of record, the complaint must be 

dismissed.” Id. at 502.

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IV. CONCLUSION

Because the parties have not adequately addressed the jurisdictional issue as discussed 

herein, the Court STRIKES the parties’ motions for summary judgment [DE 20; DE 22] as 

premature, with leave to re-file such motions addressing the merits once standing is established. 

The plaintiff has until May 1, 2018 to file an amended complaint setting forth particularized 

allegations of fact supportive of plaintiff’s standing. Should the amended complaint fail to 

establish standing sufficient to secure this Court’s jurisdiction, then the case will be subject to 

immediate dismissal. Defendant will have until June 1, 2018 to file a responsive pleading.

SO ORDERED.

ENTERED: March 28, 2018

 

 /s/ JON E. DEGUILIO 

Judge

United States District Court

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