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
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
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.
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
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.
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
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 ...