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BILLS v. HOMER CONSOL. SCH. DIST. NO. 33-C

June 30, 1997

ROBERT BILLS, a Minor by his parents, and next best friends, SEAN BILLS and DEBBIE BILLS, Plaintiff,
v.
HOMER CONSOLIDATED SCHOOL DISTRICT NUMBER 33-C, a Municipal corporation, DOUGLAS SISTERSON, Individually and in his official capacity, and DEPUTY JOSEPH KAMARAUSKAS, Individually and in his official capacity, Defendants.



The opinion of the court was delivered by: ZAGEL

 On February 5, 1996 school officials found a fire burning in a locker at Schilling Elementary School in the Homer Consolidated School District No. 33-C, where plaintiff Robert Bills was a fifth grade student. Beginning on that day and continuing daily through February 9, defendant Joseph Kamarauskas, a Will County police officer, and Schilling school officials questioned Bills in connection with the fire. On February 8, 1996, another Schilling School student admitted to starting the fire with matches. Then on February 9, Kamarauskas questioned plaintiff again and extracted a signed confession wherein plaintiff admitted to bringing a propane torch to school and giving it to the student who admitted starting the fire.

 At a school disciplinary hearing on May 7, 1996 the School District's Board of Education took action to expel plaintiff from school. Subsequently, Bills filed a complaint in Illinois state court alleging constitutional deprivations under 42 U.S.C. § 1983. The court found, inter alia, that the school board abused its discretion by expelling plaintiff from May 8, 1996 through the end of the 1996-1997 school year. Bills resumed school, and continues to attend at the present time.

 Bills filed this action against the School District, Douglas Sisterson (President of the Board of Education for the Homer District), Principal Ernst Jolas, and Deputy Joseph Kamarauskas alleging claims under 42 U.S.C. § 1983 and seeking monetary, declaratory, and injunctive relief. I dismissed four of the six counts asserted in the complaint pursuant to an earlier motion to dismiss. See Bills v. Homer Consolidated School Dist., 959 F. Supp. 507 (N.D. Ill. 1997). Now, Kamarauskas moves for Judgment on the Pleadings on the claims asserted against him in Counts I and IV of the complaint.

 DISCUSSION

 A motion for judgment on the pleadings is subject to the same standard as a Rule 12(b)(6) motion to dismiss. Craigs, Inc. v. General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993). Accordingly, the motion should only be granted if it appears beyond a doubt that the plaintiff cannot prove any facts that would support his claim for relief. See Frey v. Bank One, 91 F.3d 45, 46 (7th Cir. 1996). The court must view all facts set forth in the complaint in the light most favorable to the nonmoving party. Rooding v. Peters, 92 F.3d 578, 579 (7th Cir. 1996).

 COUNT I: Fourth, Fifth and Sixth Amendment Claims

 In Count I, plaintiff alleges a 42 U.S.C. § 1983 claim against Kamarauskas in his individual capacity for violations of his Fourth, Fifth and Sixth Amendment rights. These amendments apply to the states through the Fourteenth Amendment. See Gary v. Sheahan, 1997 U.S. Dist. LEXIS 5270, 1997 WL 201590, at *5 (N.D. Ill. Apr. 18, 1997).

 Fourth Amendment

 Plaintiff asserts that Kamarauskas violated his Fourth Amendment right by repeatedly seizing him from class and interrogating him on a daily basis for five days. Kamarauskas concedes that he seized plaintiff but contends that the seizures were reasonable. Kamarauskas further asserts that even if plaintiff adequately stated a Fourth Amendment claim it should be dismissed because he is entitled to qualified immunity.

 Under the Fourth Amendment, students at public schools have reduced, but still protected, liberty interests. Wallace v. Batavia School Dist., 68 F.3d 1010, 1014 (7th Cir. 1995). It is well established that students do not surrender their constitutional rights at the schoolhouse gates. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969). But the law that compels students to attend school deprives them of some freedom, and once at school students are subject to the control of teachers and administrators. Batavia, 68 F.3d at 1013. On the specific issue of Fourth Amendment rights at school, the Seventh Circuit recently held that teachers violate the Fourth Amendment only when the restriction of a student's liberty is unreasonable under then existing and apparent circumstances. Id. at 1014. Ordinarily, police officers must have probable cause to seize a person without violating the Fourth Amendment. Although it is not certain what standard applies to a police officer conducting a seizure in connection with school officials, New Jersey v. T.L.O., 469 U.S. 325, 342 n. 7, 105 S. Ct. 733, 743, 83 L. Ed. 2d 720 (1985), existing law demonstrates that the standard lies somewhere within the spectrum defined by probable cause at one end and reasonableness under the circumstances at the other.

 Under the qualified immunity doctrine "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Nabozny v. Podlesny, 92 F.3d 446, 455 (7th Cir. 1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). To overcome the qualified immunity defense, plaintiff must show that: (1) the alleged conduct sets out a constitutional violation; and (2) the constitutional standards were clearly established at the time of the violation. Young v. Murphy, 90 F.3d 1225, 1234 (7th Cir. 1996) (citation omitted).

 Here, the Fourth Amendment and qualified immunity issues are entwined. Once an officer's conduct has been deemed objectively unreasonable for Fourth Amendment purposes it resolves for immunity purposes whether a reasonable officer could have believed that his conduct was lawful. *fn1" Lanigan v. Village of E. Hazel Crest, Illinois, 110 F.3d 467 (7th Cir. 1997).

 Does the conduct alleged in the complaint set out a Fourth Amendment violation? Under the notice pleading standard in Rule 8(a) of the Federal Rules of Civil Procedure, plaintiff has alleged sufficient facts to indicate that his Fourth Amendment right to be free from unreasonable seizures was violated. Specifically, plaintiff alleged that Kamarauskas repeatedly pulled him out of class and questioned him for a full week beginning Monday February 5, 1996 and continuing through Friday February 9, 1996. I am concerned for the most part with plaintiff's allegation that Kamarauskas seized him on ...


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