Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MOORE v. BOARD OF EDUCATION OF THE CITY OF CHICAGO

January 21, 2004.

ANDRE MOORE, a minor; IDA DOYLE, mother/guardian, Plaintiff's, v., BOARD OF EDUCATION OF THE CITY OF CHICAGO; ARNE DUNCAN, Chief Executive Officer, individually and in his official capacity, MELVERLENE V. PARKER, Principal Hirsch High School, individually and in her official capacity; NORMAN THOMAS, Vice Principal, individually and in his official capacity; JIMMIE BUSCH, Teacher, Hirsch High School, individually and in his official capacity, Defendants


The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff's Andre Moore ("Andre"), a minor, and his mother, Ida Doyle, filed an eight-count complaint against the Board of Education of the City of Chicago ("Board"), Arne Duncan, Chief Executive Officer of the Board, Melverlene Parker, principal of Hirsch High School, Norman Thomas, vice-principal of Hirsch High School, and Jimmie Bush, a teacher at Hirsch High School, arising from Bush's alleged mistreatment of Andre while he was a student at Hirsch High School. The instant case, although initially filed in state court, was removed to this court in December 2002.

Plaintiff's' complaint alleges that Bush committed battery (Count I) and intentionally inflicted emotional distress against Andre (Count II). Further, plaintiffs allege that the Board, Parker, Duncan, and Thomas are liable for the battery (Count III), and intentional infliction of Page 2 emotional distress (Count IV), and that the Board, Parker, Duncan, and Thomas failed to supervise (Count V) and negligently retained (Count VI) defendant Bush. Finally, plaintiffs allege racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment against Bush (Count VII) as well as the Board, Parker, Duncan, and Thomas (Count VIII) pursuant to 42 U.S.C. § 1983.

  Defendants Board, Parker, and Thomas*fn1 have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss Counts III, IV, V, VI and VIII for failure to state a claim upon which relief can be granted. For the reasons stated below, defendants' motion is granted in its entirety.

  FACTS

  For the purposes of a motion to dismiss, the court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996).

  According to the complaint, Andre, an African-American/Caucasian mixed race male, was enrolled at Hirsch High School. Plaintiff's allege that all of the defendants were aware that Andre was a special education student who was diagnosed with atlantoaxial instability (i.e. abnormalities of the upper cervical spine). Andre has a visible scar at the nape of his neck and at the base of his scull resulting from surgery fusing some of his cervical vertebrae.

  During his junior year at Hirsch High School, Bush was Andre's chemistry instructor. Bush allegedly made several public statements concerning Andre's mixed Caucasian and Page 3 African-American ancestry.*fn2 In connection with the above-described incidents, Andre's mother, Ida Doyle, went to Hirsch High School to complain to defendant Parker, the principal, but was redirected to defendant Thomas, the vice-principal. Plaintiff's claim to have reported the statements made by Bush to Thomas, who admitted that such comments should not have been made. In response, Thomas removed Andre from Bush's classroom. After this discussion, Bush allegedly continued making similar statements.

  On October 25, 2001, Andre, then a senior, was in a history class taught by a Mr. Wilson in which Bush was also present. Andre made a comment that Bush was distracting him with his "interruptions" to which Bush responded, "That's the Caucasian blood in him makes him think he can say whatever he wants." When Wilson directed Andre to leave his class, Bush allegedly blocked Andre's exit from the door. According to the complaint, when Andre tried to get around Bush, Bush, without provocation, grabbed Andre and put him in a choking headlock. Shortly thereafter, Andre, complaining of neck pain, was taken to Providence Hospital Emergency Room and later to Fantus Health Center, Cook County Hospital. There it was determined that two wires from Andre's cervical spine surgery were broken, and there was evidence of vertebrae and/or nerve compression or instability. As a result, Andre was required to wear a neck brace for two hours at a time and was restricted from physical activity for six weeks. Page 4

  DISCUSSION

  In ruling on a motion to dismiss for failure to state a claim, the court considers "whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). A claim may be dismissed only if it is beyond doubt that under no set of facts, would the plaintiff's allegations entitle him to relief. Travel All Over the World. Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir. 1996). The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).

  1. Counts III-VI: Battery, Intentional Infliction of Emotional Distress. Willful and Wanton "Mis-Supervision" of Bush, and Willful and Wanton Retention of Bush

  In Counts III and IV of their complaint, plaintiffs assert that "[i]n failing to recognize the impending danger, as to being put on notice as to Defendant, Jimmy Bush's, rabidly racial discriminatory anti-bi-racial (Caucasian/African-American) statements as to Plaintiff," defendants Board, Parker, and Thomas failed to exercise reasonable care to prevent injury to Andre and thus are liable for the alleged battery and intentional infliction of emotional distress committed by defendant Bush. In Count V, plaintiffs assert that defendants Board, Parker, and Thomas breached their "duty of supervision" by failing to, (1) monitor Bush's behavior toward Andre, (2) follow up with plaintiffs regarding Bush's behavior, (3) send Bush to sensitivity training, and (4) contact other students regarding Bush's alleged statements. In Count VI, plaintiffs allege that defendants Board, Parker, and Thomas breached their duty of retaining only Page 5 competent, qualified and safe teachers by failing to fire Bush after learning of his allegedly racist statements.*fn3

  In response, defendants Board, Parker, and Thomas maintain that they are immune from liability under Section 2-201 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq. ("Tort Immunity Act"). According to defendants, even if their supervision and/or retention of Bush was willful and wanton as alleged by plaintiffs, they are not liable for plaintiffs' injuries because their ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.