                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3143
                         ___________________________

                                    Zach Hillesheim

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

                             Holiday Stationstores, Inc.

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: June 12, 2018
                               Filed: August 17, 2018
                                   ____________

Before WOLLMAN, ARNOLD, and STRAS, Circuit Judges.
                         ____________

STRAS, Circuit Judge.

      Zach Hillesheim alleges that Holiday Stationstores discriminated against him
by failing to have an accessible parking lot at one of its stores. Hillesheim’s
complaint identifies three alleged problems with the parking lot, each giving rise to
a separate claim. For two of the three claims, Hillesheim suffered no injury, so we
vacate the district court’s decision and instruct the court on remand to return them to
state court. We remand the third claim, even though Hillesheim has standing to assert
it, to allow the district court to consider whether to send it back to state court with the
others.

                                            I.

       Hillesheim is paralyzed from the waist down and uses a wheelchair for
mobility. When Hillesheim visited a Holiday store in Mankato, Minnesota, he
observed that the store’s two handicap-accessible parking spaces were not marked
with vertical sign posts. One of the spaces also lacked an adjacent access aisle, which
provides extra room for individuals with disabilities to move in and out of their
vehicles. Also present was a garbage can near the top of the curb ramp leading into
the store. Hillesheim claims that he could not have safely navigated the ramp in his
wheelchair, so instead of risking injury, he decided not to enter the store. These three
alleged defects are at the heart of this lawsuit.

       Holiday inspected the parking lot and fixed the alleged defects. It removed the
handicap-accessible space lacking an access aisle because it determined that the
Americans with Disabilities Act (“ADA”) only required it to have one space, not two,
given the size of the parking lot. It also placed an ADA-compliant vertical sign above
the remaining space and removed the garbage can from the curb ramp out of an
“abundance of care.”

       Before Holiday made these changes, however, Hillesheim filed a lawsuit in
state court, alleging violations of the ADA and the Minnesota Human Rights Act
(“MHRA”). Holiday removed the case to federal court. See 28 U.S.C. §§ 1331,
1367, 1441(a). After the close of discovery, Holiday filed a motion for summary
judgment in which it asked the district court to dismiss the case for lack of
subject-matter jurisdiction. Hillesheim conceded that Holiday’s remedial measures,
completed after Holiday removed the case to federal court, had mooted his ADA

                                           -2-
claims. He did not budge on his MHRA claims, however, arguing that he had
standing to assert them because the lack of access to the store had injured him. But
he nonetheless urged the district court to return the MHRA claims to state court
because no federal claims remained.

      The district court granted Holiday’s motion for summary judgment. In addition
to dismissing Hillesheim’s ADA claims, the court dismissed Hillesheim’s MHRA
claims with prejudice rather than remanding them to state court. On appeal,
Hillesheim challenges the court’s treatment of his MHRA claims.

                                          II.

       We review de novo the district court’s determination that Hillesheim lacked
Article III standing. Park v. Forest Serv. of the U.S., 205 F.3d 1034, 1036 (8th Cir.
2000). To pursue state-law claims in federal court, a party must prove that it has
standing under Article III’s case-or-controversy requirement. U.S. Const. art. III, § 2,
cl. 1; Hughes v. City of Cedar Rapids, 840 F.3d 987, 993 (8th Cir. 2016).

       To meet the “irreducible constitutional minimum” for Article III standing: (1) a
plaintiff must have suffered an “injury in fact,” (2) that is “fairly traceable to the
challenged conduct,” and (3) is “likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation omitted).
The parties dispute only the existence of the first requirement: whether Hillesheim
suffered an injury-in-fact that is sufficiently concrete and particularized, not
conjectural or hypothetical. See id. at 1547–48.

        At summary judgment, Hillesheim had to do more than just rely on the
allegations from his complaint, because “[a] party invoking federal jurisdiction must
support each of the standing requirements with the same kind and degree of evidence
at the successive stages of litigation as any other matter.” Constitution Party of S.D.

                                          -3-
v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011). Hillesheim accordingly had to offer
evidence in response to Holiday’s summary-judgment motion establishing that each
of the alleged parking lot defects had injured him. Id. at 421. The central question
in this case is whether he did so.

       Hillesheim’s evidence was thin. On the access-aisle and vertical-signage
claims, his declaration did little more than describe the alleged violations, other than
stating that he was deterred from visiting the store in the future.1 It did not explain
how the lack of an access aisle or insufficient vertical signage injured him. It made
no mention, for example, of whether he had difficulty identifying which spots were
handicap accessible or even whether the alleged defects caused him to leave without
entering the store. Alleging bare violations of the ADA without evidence of an actual
injury is insufficient to establish Article III standing. See Braitberg v. Charter
Commc’ns, Inc., 836 F.3d 925, 929–30 (8th Cir. 2016).

       The district court drew the wrong conclusion, however, when it dismissed both
claims with prejudice. If it turns out after removal that a plaintiff lacks standing to
bring a claim in federal court, as happened here, then a district court must remand the
claim to state court. 28 U.S.C. § 1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”); Hughes, 840 F.3d at 993; Wallace v. ConAgra Foods, Inc., 747 F.3d
1025, 1033 (8th Cir. 2014). We accordingly vacate the district court’s judgment
dismissing these two claims and instruct the court on remand to return them to state
court.




      1
      Under Davis v. Anthony, Inc., 886 F.3d 674, 678 (8th Cir. 2018), we do not
recognize the theory that being deterred from visiting a place of public
accommodation in the future rises to the level of an injury-in-fact.
                                          -4-
       Hillesheim’s garbage-can claim is a different story. In contrast to the other
claims, Hillesheim’s declaration connected the placement of the garbage can to his
decision to leave. It stated that he could not safely navigate the ramp without risking
injury because the garbage can blocked his path of travel and trying to maneuver
around it could have caused his wheelchair to tip over. By offering specific evidence
that the allegedly dangerous circumstances caused him not to enter the store,
Hillesheim did enough to establish an injury-in-fact. He was not required, as Holiday
suggests, to have a go of it to establish Article III standing. See Disability Support
All. v. Heartwood Enters., LLC, 885 F.3d 543, 546–47 (8th Cir. 2018); Steger v.
Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000).

       In reaching a contrary conclusion, the district court made two errors. First, by
faulting Hillesheim for failing to provide sufficient detail about the width and slope
of the ramp, the court confused the standing inquiry with the merits. To establish
Article III standing, all that Hillesheim was required to show was that he suffered an
injury, not that the placement of the garbage can violated the MHRA. See Red River
Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th Cir. 2012) (“The standing
inquiry is not . . . an assessment of the merits of a plaintiff’s claim.”).

       Second, the district court erred in treating a photograph that Hillesheim
submitted along with his declaration as definitive proof that he had plenty of room
to maneuver around the garbage can. To be sure, there are rare instances in which
overwhelming photographic or video evidence may point to the absence of a genuine
issue of material fact at summary judgment. See Scott v. Harris, 550 U.S. 372,
379–80 (2007). But this is not one of them. Hillesheim made clear in his declaration
that the placement of the garbage can left only a narrow and dangerously sloped path
up the ramp, and the photograph does not disprove his claim. In fact, it does not
show how much space remained on each side of the garbage can or the slope of the
incline that a person in a wheelchair would have faced to reach the top. Put simply,



                                         -5-
the court’s evaluation of the photograph fails to draw all inferences from the evidence
in the light most favorable to Hillesheim.

      One loose end remains. Now that we have concluded that the district court
erred when it dismissed the garbage-can claim for lack of subject-matter jurisdiction,
the question is what to do with it. Under 28 U.S.C. § 1367(c), when a “district court
has dismissed all claims over which it has original jurisdiction,” it may decline to
exercise supplemental jurisdiction over any remaining claims.

       The landscape has changed since the district court first exercised its discretion
under the supplemental-jurisdiction statute. Now only one claim remains. When it
granted summary judgment, the court dismissed Hillesheim’s ADA claims. We have
now instructed the district court to return two of Hillesheim’s state-law claims to state
court. The district court is entitled to determine on remand whether it still wishes to
exercise its discretion in the same way. See generally Brown v. Mortg. Elec.
Registration Sys., Inc., 738 F.3d 926, 933 (8th Cir. 2013).

                                          III.

      We vacate the district court’s judgment with instructions to remand
Hillesheim’s access-aisle and vertical-signage claims to state court and to consider
whether to exercise supplemental jurisdiction over the remaining claim.
                      ______________________________




                                          -6-
