Mary Pat Hartung ("Hartung") (see FAC ¶ 6). When
the FAC's allegations are taken as true, as they must be at this point,
Hartung must be viewed as a policymaker subject to Section 1983 liability
(parenthetically, a statement that is equally applicable to the other
individual co-defendant, Principal Susan Kurland). Unlike the situation
in Horwitz, what is at issue here is not a personnel decision such as the
right to fire, but rather what Brogan describes in FAC ¶ 12 as
"harassing and unfounded discipline" (and see also FAC ¶ 16) to which
he says he was subjected in retaliation for his asserted exercise of
First Amendment rights — and at this threshold stage of the case,
the decisionmaking right to impose such disciplinary action may be viewed
under the FAC allegations as vested in personnel at an institutional
level below that of Board itself.
In that respect, something more should be added about the flawed
emphasis in Hartung's Rule 12(b)(6) motion on the absence of fact
pleading in the FAC — a flaw already addressed in the Opinion as to
Board's similarly misdirected criticism. In this instance Hartung's
motion at 5 compounds that wrongful insistence by citing as purported
authority a Seventh Circuit opinion that antedated the Supreme Court's
Leatherman teaching (see Opinion at 2), issued at a time when our Court
of Appeals was itself applying an incorrect fact-insistent standard on
pleadings. Indeed, Hartung's Motion at 4 commits the more egregious error
of citing and quoting from Wright v. Illinois Dep't of Children & Family
Servs., 40 F.3d 1492, 1500 (7th Cir. 1994) — a summary judgment
case, not one resolved at the pleading stage — as purported support
for plaintiff's need to produce "specific, non-conclusory allegations."
Responsible counsel ought to know better.
Hartung's motion at 3-4 also attacks the sufficiency of Brogan's FAC
because it does not contain any temporal allegations, an issue that
Board's Motion at 5-6 had also addressed, but from the mistaken
perspective of an asserted deficiency in the FAC's factual allegations.
Both defendants' contentions again betray a fundamental misunderstanding
of Rule 12(b)(6) principles, which it will be remembered call for
sustaining a complaint if any set of facts may be proved consistently
with the allegations that will keep plaintiff in court (Hishon v. King &
Spalding, 467 U.s. 69, 73 (1984)) . Timely filing of a Section 1983 action
is not a jurisdictional requirement, so that the absence of time-based
allegations in the FAC is not at all fatal (though it does create a bit
of delay in obtaining that detailed information, which should be
forthcoming under the advance disclosure requirements of Rule 26(a)).
What both defense counsel have failed to think through is that the two
year statute of limitations on their Illinois-based Section 1983 actions
is an affirmative defense under Rule 8(c), rather than constituting a
precondition to suit.
Finally, Hartung's counsel inveighs against the FAC's prayer for
punitive damages. That too comes at the issue from the same warped belief
that, as is true under Illinois state court procedure, a complaint must
allege facts. Here FAC ¶ 18 asserts "reckless or careless
indifference, " and that is enough at this stage of the game.
In summary, Hartung's Rule 12(b)(6) motion is also denied, and she too
(like Board, the denial of whose motion to dismiss has been reconfirmed
here) is ordered to answer the FAC on or before August 10. Hartung's
counsel will also be expected to appear at the time of the
scheduled 9:00 a.m. August 22 status hearing.*fn2