|||IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
|||August 3, 2000
|||DONALD J. SIERAKOWSKI,
JAMES E. RYAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, IN HIS OFFICIAL CAPACITY, AND JOHN R. LUMPKIN, DIRECTOR OF THE ILLINOIS DEPARTMENT OF PUBLIC HEALTH, IN HIS OFFICIAL CAPACITY,
|||Appeal from the United States District Court for the Northern District
of Illinois, Eastern Division. No. 98 C 7088--James F. Holderman, Judge.
|||Before Flaum, Chief Judge, Bauer and Williams, Circuit Judges.
|||The opinion of the court was delivered by: Flaum, Chief Judge.
|||Argued April 3, 2000
|||Plaintiff Donald J. Sierakowski was tested for HIV without his knowledge
and consent. Pursuant to 42 U.S.C. sec. 1983 and 28 U.S.C. sec. 2201, Sierakowski
sought a declaration that the provision of the Illinois AIDS Confidentiality
Act codified as 410 ILCS 205/8(b)--which under certain circumstances grants
Illinois physicians discretion to test patients for HIV without their knowledge
or consent--is invalid because it violates rights secured by the Fourth
and Fourteenth Amendments to the United States Constitution. Sierakowski
further sought an injunction prohibiting defendant John R. Lumpkin, Director
of the Illinois Department of Public Health, and his agents from enforcing
or otherwise effectuating the state law provision.*fn1
The district court dismissed the suit, and then denied Sierakowski's Rule
59(e) motion to amend the judgment, on Eleventh Amendment and standing grounds.
We affirm the judgment of the district court.
|||The Illinois AIDS Confidentiality Act provides that "[n]o person
may order an HIV test without first receiving the written informed consent
of the subject of the test or the subject's legally authorized representative."
410 ILCS 305/4. Section 8 of the Act, however, states in relevant part:
|||Notwithstanding the provisions of Sections 4 and 5 of this Act, written
informed consent, information and counseling are not required for the performance
of an HIV test . . . (b) when in the judgment of the physician, such testing
is medically indicated to provide appropriate diagnosis and treatment to
the subject of the test, provided that the subject of the test has otherwise
provided his or her consent to such physician for medical treatment. 410
|||This Illinois Aids Confidentiality Act also generally forbids disclosure
of "the identity of any person upon whom a test is performed, or the
results of such a test in a manner which permits identification of the subject
of the test," 410 ILCS 305/9, but allows such disclosure to a list
of enumerated persons, including the Department of Public Health, in accordance
with reporting rules. 410 ILCS 305/9(d). The Illinois Sexually Transmissible
Disease Control Act requires that laboratories performing HIV tests report
any positive results to the Illinois Department of Public Health within
two weeks of the test. 410 ILCS 325/4; 77 Ill. Adm. Code. sec. 693.20(a)(1)-(2).
|||Sierakowski suffers from a seizure disorder, and the medication prescribed
to control the disorder can affect liver function. Sierakowski must therefore
visit a physician every three months for testing to ensure that his liver
is functioning properly and to monitor levels of seizure medication present
in his blood.
|||In November 1996, Sierakowski made an office visit to his regular physician,
Dr. Coleman Seskind. Sierakowski did not previously nor at that time provide
Dr. Seskind or any other person with his consent, written or otherwise,
to perform an HIV test. Dr. Seskind had Sierakowski admitted to a hospital
for treatment, where, according to Sierakowski, he was asked by hospital
personnel whether he would consent to an HIV test and he refused. During
Sierakowski's next visit to Dr. Seskind the following week, Dr. Seskind
disclosed that Sierakowski had been tested for HIV and that the test result
|||On November 5, 1998, Sierakowski filed a complaint against defendant Lumpkin,
as Director of the Illinois Department of Public Health, alleging that the
continued enforcement and effectuation of section 8(b) of the Illinois AIDS
Confidentiality Act violates his constitutional rights under the Fourth
and Fourteenth Amendments. Invoking 42 U.S.C. sec. 1983 and 28 U.S.C. sec.
2201, Sierakowski sought a declaratory judgment that section 8(b) is unconstitutional
and injunctive relief prohibiting the Director and his agents from enforcing
or effectuating section 8(b).
|||Lumpkin moved to dismiss on the grounds that the Eleventh Amendment barred
the action against him because he was not sufficiently involved in the enforcement
and implementation of section 8(b) to be a proper defendant under the doctrine
of Ex parte Young, 209 U.S. 123 (1908). The district court rejected this
argument, but nevertheless dismissed the suit against him because plaintiff
Sierakowski had not alleged an "ongoing or threatened violation of
federal law" or "that he is likely to be tested again for AIDS
without consent." This failure, the court held, required dismissal
on both Eleventh Amendment and standing grounds.
|||Sierakowski filed a Rule 59(e) motion to alter or amend the judgment by
granting him leave to file a proposed amended complaint, which added certain
allegations against Lumpkin. The court denied the motion, holding that the
allegations of the proposed amended complaint did not cure the defects of
the original complaint.
|||Article III standing requires that a plaintiff demonstrate three elements:
(1) an "injury in fact"--an invasion of a legally recognized interest
which is concrete and particularized, actual or imminent, and not conjectural
or hypothetical; (2) a causal link between that injury and the defendant's
action, such that the injury is fairly traceable to the action complained
of; and (3) that a favorable decision will likely redress the injury. See
Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 120 S.Ct.
693, 704 (2000); Wisconsin v. FERC, 192 F.3d 642, 646 (7th Cir. 1999). The
district court held, among other things, that Sierakowski did not satisfy
the injury-in-fact requirement because, even under the allegations laid
out in his proposed amended complaint, his alleged injuries were too abstract
and conjectural to give him standing to seek injunctive and declaratory
relief. We agree with the district court's conclusion on this issue.
|||Although we recognize that there are circumstances where the probability
rather than certainty of future injury may support standing to challenge
the constitutionality of a policy, see, e.g., Pennell v. City of San Jose,
485 U.S. 1 (1988) (holding that landlords had standing to challenge an ordinance's
constitutionality where there was both a likelihood of enforcement and a
concomitant probability that the landlords' rent would be reduced), the
Supreme Court has made clear that in order to invoke Article III jurisdiction
a plaintiff in search of prospective equitable relief must show a significant
likelihood and immediacy of sustaining some direct injury. See Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 210-11 (1995); City of Los Angeles v. Lyons,
461 U.S. 95 (1983); see also Stewart v. McGinnis, 5 F.3d 1031, 1038-39 (7th
Cir. 1993). In Lyons, the Supreme Court considered a civil rights action
against the City of Los Angeles and several police officers, in which it
was alleged that the officers had stopped the plaintiff for a routine traffic
violation and then applied a chokehold without provocation. Among other
things, the plaintiff sought an injunction against further use of the chokehold
by police unless the suspect threatened deadly force. The Supreme Court
held that Lyons lacked standing to seek injunctive relief because he could
not show a real or immediate threat of future harm:
|||That Lyons may have been illegally choked by the police on October 6,
1976, while presumably affording Lyons standing to claim damages against
the individual officers and perhaps against the City, does nothing to establish
a real and immediate threat that he would again be stopped for a traffic
violation, or for any other offense, by an officer or officers who would
illegally choke him into unconsciousness without any provocation or resistance
on his part. The additional allegation in the complaint that the police
in Los Angeles routinely apply chokeholds in situations where they are not
threatened by the use of deadly force falls far short of the allegations
that would be necessary to establish a case or controversy between these
parties. 461 U.S. at 104.
|||In holding that Lyons lacked standing to seek injunctive relief, the Supreme
Court relied on its prior decision in O'Shea v. Littleton, 414 U.S. 488
(1974), where a class of plaintiffs accused a magistrate and judge of discriminatory
sentencing and sought to enjoin the constitutionally proscribed conduct.
The O'Shea Court ordered the case dismissed because, although it was claimed
that particular class members had actually suffered from the alleged unconstitutional
practices, there was no real and immediate threat that they would again
be subjected to the improper sentencing procedures. See id. at 495-96. "Past
exposure to illegal conduct," the Court explained, "does not in
itself show a present case or controversy regarding injunctive relief .
. . ." Id. at 495; see also Park v. Forest Service of the United States,
205 F.3d 1034 (8th Cir. 2000) (holding that association members lacked standing
to sue the Forest Service for injunctive relief, because although the association
alleged that the Service employed an unconstitutional automobile checkpoint
targeted against the association, the association did not demonstrate a
real and immediate threat that it would again be subjected to such a checkpoint);
Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp.,
28 F.3d 1268 (D.C. Cir. 1994) (holding that black fair employment testers,
who posed as job applicants and were denied referrals by the defendant employment
agency, lacked standing to seek injunctive relief absent sufficient allegations
that their rights would be violated by the agency in the future); Facio
v. Jones, 929 F.2d 541 (10th Cir. 1991) (holding that a default judgment
debtor lacked standing to challenge state procedural rules through a sec.
1983 suit for declaratory or injunctive relief absent showing a good chance
of being subjected to those procedures in the future).
|||This Court has recently relied upon the reasoning in Lyons and O'Shea
in holding that claims for injunctive relief resembling Sierakowski's fail
to satisfy standing requirements. In Knox v. McGinnis, 998 F.2d 1405 (7th
Cir. 1993), we held that a prisoner lacked standing to seek an injunction
against future use of a particular restraining device on segregation prisoners.
The prisoner, who had previously been subjected to the "black box"
restraining device, brought a section 1983 action against state corrections
officials alleging that use of the device violated the Eighth Amendment.
We concluded that Lyons and O'Shea were controlling:
|||Like the plaintiffs in those cases, Knox cannot establish a real and immediate
threat that he again will be subject to use of the black box. Although Stateville
uses the black box on all segregation prisoners, the mere possibility that
Knox may sometime in the future be returned to the segregation unit does
not establish a real and immediate case or controversy. Id. at 1413.
|||Similarly, in Robinson v. City of Chicago, 868 F.2d 959 (7th Cir. 1989),
we held that arrestees lacked standing to seek declaratory relief challenging
a city police department's investigatory detention policy. Because it was
not reasonably likely that the former arrestees would be arrested again,
they could not establish a real threat of future injury sufficient to seek
such prospective relief:
|||[A]s with the Lyons plaintiff, neither Richardson nor the Doulin plaintiffs
can allege that it is reasonably likely that they will again encounter the
police. Because the various plaintiffs' future conduct presumably will give
the police no probable cause to arrest them, they cannot expect that they
will encounter the police or, if they did, that the police would again detain
them pending investigation or fingerprint clearance. Thus, even if the police
were to continue to detain others for investigation, . . . the possibility
that Richardson would suffer any injury as a result of that practice is
too speculative. Id. at 966 (citations omitted).
|||Like the plaintiffs in these cases, Sierakowski's prospects of future
injury are purely speculative, and Sierakowski therefore lacks the requisite
personal stake in the outcome of this litigation to establish standing to
seek injunctive relief. Cf. Lyons, 461 U.S. at 111 ("Absent a sufficient
likelihood that he will be wronged in a similar way, Lyons is no more entitled
to an injunction than any other citizen of Los Angeles; and a federal court
may not entertain a claim by any or all citizens who no more than assert
that certain practices of law enforcement officers are unconstitutional.");
see also Stewart, 5 F.3d at 1038-39. Sierakowski's proposed amended complaint
alleges that he was tested previously for HIV without his consent and that
proper health care requires that he visit a physician every three months
for blood tests. Taken together, these allegations still do not establish
that he would likely be tested again for HIV without his consent. By its
very terms, the challenged statute authorizes unconsented testing based
on "the judgment of the physician" as to whether "such testing
is medically indicated to provide appropriate diagnosis and treatment to
the subject of the test." 410 ILCS 305/8(b). There is no policy mandating
testing, but instead section 8(b) leaves that decision in the hands of individual
physicians, to be made on a case-by-case basis. The record provides no reason
to believe that the conditions spelled out in the statute are likely to
be present in Sierakowski's future visits, and the fact that Sierakowski
must visit a physician more often than most people is not probative of whether
that physician will deem HIV testing medically indicated. Sierakowski thus
finds himself in the same position as the plaintiff in Lyons.
|||To be sure, past wrongs, while not sufficient to confer standing for injunctive
relief, may be evidence that future violations are likely to occur. See
Lyons, 461 U.S. at 102; O'Shea, 414 U.S. at 496. But in this case the allegations
regarding past conduct still leave us with bare speculation about what testing
Sierakowski's doctors will later decide to conduct. Perhaps that Sierakowski
was tested previously for HIV suggests that doctors will likely judge it
useful to test him again. Or, then again, perhaps that his previous test
came out negative makes it unlikely. There is nothing in the proposed amended
complaint or the record below to suggest that future injury is likely and
that Sierakowski faces an immediate threat of harm. Accordingly, the district
court properly dismissed this suit and denied the post-judgment motion seeking
permission to file an amended complaint.*fn2
|||For the reasons stated herein, we AFFIRM the decision of the district
|||*fn1 Sierakowski also originally named
Illinois Attorney General James E. Ryan as a defendant in his official capacity,
but he does not appeal the dismissal of defendant Ryan from the suit.
|||*fn2 Because we conclude that Sierakowski
lacks standing to seek injunctive and declaratory relief, we decline to
reach the issue of whether the Eleventh Amendment bars this suit.
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