MEMORANDUM OPINION AND ORDER
This Court's brief July 30, 2001 memorandum opinion and order
("Opinion") rejected the motion of Chicago School Reform Board of
Trustees ("Board"), one of the four defendants in this 42 U.S.C. § 1983
("Section 1983") action, for its dismissal from the First Amended
Complaint ("FAC") brought by Thomas Brogan ("Brogan"). Two deliveries to
this Court's chambers later the same day — a newly issued opinion
from our Court of Appeals and another defendant's proposed motion for
dismissal under Fed. R. Civ. P. ("Rule") 12(b)(6) — have occasioned
the issuance of this further memorandum opinion and order.
As to the first of those new arrivals, which provides another instance
of the serendipity that is encountered in the judging business with
surprising frequency, the weekly package of slip opinions from our Court
of Appeals included Horwitz v. Board of Educ., No. 00-4271, slip op. (7th
Cir. July 26, 2001), which bears significantly on Brogan's claims against
Board and the other defendants. Horwitz (like this case) included a
Section 1983 claim by a teacher (slip op. at 22-26), and it too (like
this case) sought to advance that claim under the auspices of the First
Amendment (made applicable to state actors via the Fourteenth
Amendment). To the extent that Horwitz is relevant to this case, it has
repeated these teachings:
1. Slip op at 25, citing Duda v. Board of Educ.,
133 F.3d 1054, 1061 (7th Cir. 1998), has reconfirmed
this basic proposition:
Deciding whether a specific official has final
policy making authority is a question of state law.
2. Slip op. at 25 also quoted Duda, id. as negating any
"infer[ence] that a superintendent or principal has been
delegated policymaking authority with respect to
3. Slip op. at 25-26 has restated the basic
proposition that no Section 1983 claim against a
school board may be based on respondeat superior
principles (citing for that purpose Smith v. Chicago
Sch. Reform Bd. of Trs., 163 F.3d 1142, 1148 (7th
Cir. 1999), which was in turn based on the
underpinning of the definitive Monell decision*fn1).
All of those teachings are set out here solely for informational
purposes, for none of them affects the Opinion's holding that Board must
stay in this lawsuit. As Opinion at 3 points out, for Rule 12(b)(6)
purposes Brogan has adequately alleged Board's direct responsibility
within the bounds of Monell.
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 ...