In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2705

Donald J. Sierakowski,

Plaintiff-Appellant,

v.

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,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7088--James F. Holderman, Judge.


Argued April 3, 2000--Decided August 3, 2000



      Before Flaum, Chief Judge, Bauer and Williams,
Circuit Judges.

      Flaum, Chief Judge. 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./1 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.

Background

      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 ILCS 305/8.

      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 was
negative.

      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.

Discussion

      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./2

Conclusion

      For the reasons stated herein, we AFFIRM the
decision of the district court.



/1 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.

/2 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.
