IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

MARCUS LEWIS, et al., ) 

 ) 

 Plaintiffs, ) Case No. 20-cv-2836 

 ) 

 v. ) Judge Sharon Johnson Coleman 

 ) 

WALMART CORPORATION, et al., ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

 Pro se plaintiffs Marcus Lewis and Kelly King bring this lawsuit alleging violations of the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., against the governor of Illinois,1

Walmart Corporation, Walgreen Corporation, Dollar General Corporation, and certain individual 

employees of these retail stores. Before the Court are defendants’ motions to dismiss under Federal 

Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the Court grants 

defendants’ motions to dismiss with and without prejudice. The Court grants plaintiffs leave to file 

an amended complaint in accordance with this ruling by no later than December 8, 2020. 

Background 

Construing plaintiffs’ pro se allegations liberally, Taylor v. JPMorgan Chase Bank, 958 F.3d 556, 

562 (7th Cir. 2020), they allege that they were denied entry into certain Walmart, Walgreens, and 

Dollar General retail stores in Chicago because they were not wearing face coverings on May 4, 2020 

during the COVID-19 pandemic. Plaintiffs’ allegations stem from Illinois Governor Jay Pritzker’s 

April 30, 2020, Executive Order that states: 

Any individual who is over the age of two and able to medically tolerate a facecovering (a mask or cloth face-covering) shall be required to cover their nose and 

1 The Court granted Governor Jay Pritzker’s Rule 12(b)(6) motion to dismiss with prejudice on November 

10, 2020 [81]. 

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mouth with a face-covering when in a public place and unable to maintain a six-foot 

social distance. Face-coverings are required in public indoor spaces such as stores. 

Executive Order 2020-32 § 1.1. 

 Specifically, plaintiffs allege that when they attempted to enter the Walgreens, Walmart, and 

Dollar General stores, certain employees denied them entrance because plaintiffs were not wearing 

face coverings. Plaintiffs state that they suffer from chronic asthma that prevents them from being 

able to wear face masks or face coverings in public. Accordingly, plaintiffs argue they were not 

medically able to tolerate face coverings as set forth as an exception to the governor’s ordinance, and 

thus defendant retail stores violated Title II and Title III of the ADA. Plaintiffs seek $10 million in 

damages from each defendant. 

Legal Standards 

A Rule 12(b)(1) motion challenges federal jurisdiction, and the party invoking jurisdiction 

bears the burden of establishing the elements necessary for subject matter jurisdiction, including 

standing. Taylor v. McCament, 875 F.3d 849, 853 (7th Cir. 2017). Under Rule 12(b)(1), the Court 

accepts all well-pleaded factual allegations as true and construes all reasonable inferences in the 

plaintiff’s favor. Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017). When 

“external facts call the court’s jurisdiction into question,” the 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.” Taylor, 875 F.3d at 853 

(citation and quotation marks omitted). 

 A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the 

sufficiency of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 

L.Ed.2d 233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded 

factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. 

Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion 

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to dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible 

when the plaintiff alleges “factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 

1937, 173 L.Ed.2d 868 (2009). 

Discussion 

“The Americans with Disabilities Act prohibits discrimination based on disability in ‘major 

areas of public life, among them employment (Title I of the Act), public services (Title II), and 

public accommodations (Title III).’” Access Living of Metro. Chicago v. Uber Tech., Inc., 958 F.3d 604, 

607 (7th Cir. 2020) (citation omitted). Under Title II of the ADA, “no qualified individual 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 subjected to discrimination 

by any such entity.” 42 U.S.C. § 12132. “Public entity” means any state or local government or 

their instrumentalities, such as state agencies. 42 U.S.C. § 12131. Moreover, there is no personal 

liability under Title II of the ADA. Stanek v. St. Charles Cmty. Unit School Dist. No. 303, 783 F.3d 634, 

644 (7th Cir. 2015). As such, plaintiffs can only bring their Title II claims against a state agency or 

state official in his or her official capacity. 

 Plaintiffs allege that three private businesses, Walmart, Dollar General, and Walgreens, 

denied them access to their stores – not that any state or local government denied them access to 

public services, programs, or other activities, such as a public school. See, e.g., Ashby v. Warrick 

County Sch. Corp., 908 F.3d 225, 230 (7th Cir. 2018). Therefore, plaintiffs’ Title II allegations 

necessarily fail against these private businesses. Access Living, 958 F.3d at 611. Because defendants 

are not public entities, the Court grants defendants’ motions to dismiss plaintiffs’ Title II claims with 

prejudice. 

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 Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal 

enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place 

of public accommodation.” 42 U.S.C. § 12182(a). Because Title III only provides for injunctive 

relief and not monetary damages, Scherr v. Mariott Int’l, 703 F.3d 1069, 1075 (7th Cir. 2013), 

defendants argue that plaintiffs cannot establish Article III standing to bring their claims. 

 A “decision that plaintiffs lacked Article III standing is one of jurisdictional significance: it 

means that the court had no authority to resolve the case.” MAO-MSO Recovery II, LLC v. State Farm 

Mutual Auto. Ins. Co., 935 F.3d 573, 581 (7th Cir. 2019). To show standing for injunctive relief, 

plaintiffs must establish: (1) they are under an actual or imminent threat of suffering a concrete and 

particularized injury-in-fact; (2) a causal connection between the injury and the challenged conduct; 

and (3) the likelihood the injury will be redressed by a favorable decision. Cook County, Ill. v. Wolf,

962 F.3d 208, 218 (7th Cir. 2020). 

 Defendants maintain that plaintiffs cannot establish there is a real and immediate threat of 

future violations under the first standing requirement for injunctive relief. Access Living, 958 F.3d at 

613. Specifically, defendants contend that plaintiffs have failed to plausibly assert the likelihood of a 

future injury. Although plaintiffs allege that they will return to the retail stores “to ascertain whether 

they remain in violation of the ADA” there are no allegations of potential future harm, namely, that 

the stores will continue to refuse entry to them and other customers who claim medical exemptions 

from Illinois’ face covering requirements. See Scherr, 703 F.3d at 1074. Nor do plaintiffs plausibly 

allege any ongoing violations. Instead, plaintiffs simply state that a Walmart store manager, a 

Walgreens security officer, and a Dollar Store manager did not allow them into the stores without 

face coverings on May 4, 2020. Without more, plaintiffs have only alleged past injury, which is 

insufficient to establish standing for prospective injunctive relief. Carello v. Aurora Policemen Credit 

Union, 930 F.3d 830, 833 (7th Cir. 2019). The Court therefore grants defendants’ motions in this 

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respect and also grants plaintiffs leave to file an amended complaint to cure their standing 

deficiencies. 

 Next, defendants argue that plaintiffs have failed to sufficiently allege their Title III claim 

under the federal pleading standards, which require plaintiffs to allege sufficient factual content 

allowing the Court to draw the reasonable inference that defendants discriminated against plaintiffs 

based on his or her disability.2 See 42 U.S.C. § 12188. Disability discrimination under Title III of the 

ADA can be established by either disparate treatment, also known as intentional discrimination, or a 

failure to accommodate claim. Plaintiffs do not allege that defendants failed to make reasonable 

accommodations in their policies, practices or procedures after plaintiffs requested defendants to do 

so, see 42 U.S.C. § 12182(b)(2)(A)(ii), thus the Court turns to whether plaintiffs have sufficiently 

alleged a Title III intentional discrimination claim. 

 To state a discrimination claim under Title III, plaintiffs must allege: (1) that they are 

disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public 

accommodation; and (3) that defendants discriminated against them based on their disability by 

denying them a full and equal opportunity to enjoy the goods, services, facilities, privileges, 

advantages, or accommodations that defendants provide. 42 U.S.C. § 12182(a). 

 Here, plaintiffs allege that on May 4, 2020, they attempted to enter three retail stores in 

Chicago, but were refused entry because they were not wearing masks or face coverings as required 

by Governor Pritzker’s April 30, 2020, Executive Order. Plaintiffs allege that defendants 

intentionally discriminated against them by refusing them entry because the governor’s ordinance 

has an exception, namely, that individuals who cannot medically tolerate a face covering are not 

2 Defendants also focus on the merits of plaintiffs’ claims, including that defendants neutrally applied the 

governor’s ordinance to all customers – an argument that is not appropriate at this stage of the proceedings. 

Hahn v. Walsh, 762 F.3d 617, 632 (7th Cir. 2014) (federal pleading standards do not involve the evaluation of 

“the veracity of the pleaded facts or the ultimate merits of the plaintiff’s claim.”). 

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required to wear one. These three isolated incidences, however, are not an adequate factual basis for 

plaintiffs’ ADA claims because “[i]solated acts of negligence ... do not come within the ambit of 

discrimination against disabled persons proscribed by the ADA.” Foley v. City of Lafayette, 359 F.3d 

925, 930-31 (7th Cir. 2004). Plaintiffs must allege more factual details plausibly suggesting 

defendants are liable for intentional discrimination, not just that defendants’ employees made 

isolated mistakes in relation to the governor’s order. The Court therefore grants defendants’ 

motions to dismiss plaintiffs’ Title III claim without prejudice and grants plaintiffs leave to amend 

this claim.

 Furthermore, because there is no individual liability under the ADA, the Court dismisses 

individual defendants Miguel Artwell, Timothy Green, and T. Money from this lawsuit with 

prejudice. Stanek, 783 F.3d at 644; see also Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000) (“The 

ADA addresses its rules to employers, places of public accommodation, and other organizations, not 

to the employees or managers of these organizations.”). 

 Last, because pro se litigants cannot bring class action lawsuits, the Court strikes plaintiffs’ 

class action allegations. Lawrence v. Secretary of State, 467 Fed. Appx. 523, 525, (7th Cir. 2012); see also 

Georgakis v. Illinois State Univ., 722 F.3d 1075, 1077 (7th Cir. 2013) (“A nonlawyer can’t handle a case 

on behalf of anyone except himself.”). The Court also strikes plaintiffs’ allegations for money 

damages because they are only entitled to injunctive relief under Title III. See Scherr, 703 F.3d at 

1075. 

Conclusion

 Based on the foregoing, the Court grants defendants’ motions to dismiss with and without 

prejudice [59, 62, 70]. The Court dismisses plaintiffs’ Title II claim and individual defendants Miguel 

Artwell, Timothy Green, and T. Money from this lawsuit with prejudice. The Court also strikes 

plaintiffs’ class action allegations and allegations for money damages. The Court grants plaintiffs 

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leave to amend their Title III claim in accordance with this ruling. Plaintiffs’ amended complaint is 

due on or before December 8, 2020. 

IT IS SO ORDERED. 

Date: 11/17/2020 

 Entered: _____________________________ 

 SHARON JOHNSON COLEMAN 

 United States District Judge 

 

 

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