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Owens v. Brown

December 11, 2006


The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge


This matter is before the Court on Defendants Leanne Brown and Mark Skertich's Motion to Dismiss (d/e 8) and Defendant Tom Rosene's Motion to Dismiss (d/e 13).*fn1 Plaintiff Louis Owens filed the pending pro se Complaint (d/e 2) under 42 U.S.C. § 1983 against state and local school officials, seeking injunctive relief. Complaint, p. 6. Plaintiff alleges that his rights were violated when school officials failed to investigate incidents that occurred at school involving two of Plaintiff's minor children. Plaintiff's prayer for relief asks the Court to order Defendants Brown, Skertich, and Schiller to explain why they failed to do anything about the incidents in question. Plaintiff also asks the Court to have his children returned to him. For the reasons set forth below, Plaintiff's claims are dismissed.


In analyzing the Motions to Dismiss, the Court must accept as true all well-pleaded factual allegations contained in the Complaint and draw all inferences in the light most favorable to the Plaintiff. Hager v. City of West Peoria, 84 F.3d 865, 868-69 (7th Cir. 1996); Covington Court, Ltd. v. Village of Oak Brook, 77 F.3d 177, 178 (7th Cir. 1996). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996).

Plaintiff has attached copies of numerous documents to his Complaint. Defendants have not asked the Court to strike any of these attachments. "A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." Fed. R. Civ. P. 10(c). Thus the Court will consider the information set forth in Plaintiff's attachments in analyzing the Motions to Dismiss.

According to the allegations of the Complaint, in September or October 2005, Plaintiff's son Louis Owens' head was stuck in a toilet in the bathroom of his elementary school in Staunton, Illinois.*fn2 Plaintiff asserts that Defendant Brown was aware of the incident involving Louis and failed to report it. The Complaint also references an incident of sexual molestation involving Plaintiff's son Robert Owens that occurred in the school bathroom in 2004. Plaintiff alleges that Brown knew about the incident involving Robert and failed to report it or to notify the other child's parents. The attachments to the Complaint, however, seem to indicate that Brown called either the Plaintiff or the child's mother, Bernadette Hiskey, to inform him/her of the incident involving Robert. Complaint, Ex. 1, p. 5. Plaintiff further alleges that Defendant Skertich was asked to investigate the incident involving Robert and failed to do so.

The attachments to the Complaint include a letter from the Illinois Department of Children and Family Services (DCFS) to Plaintiff dated October 26, 2005. Complaint, Ex. 2, p. 14. The letter indicates that DCFS received a report of child abuse or neglect by Plaintiff. The letter states that after a thorough investigation, DCFS determined that Plaintiff "abused or neglected a child." According to the Complaint, it was not until after Plaintiff tried to force Defendants Brown, Skertich and Schiller to "do their job that the calls started with DCFS." Complaint, p. 6. One of the attachments to the Complaint alleges "We try and do the right thing as parents & because we were going over their heads they make up lies to DCFS . . . ." Complaint, Ex. 2 , p. 5. The Court liberally construes Plaintiff's submissions to allege that certain individuals lied to DCFS in order to retaliate against the Plaintiff for "going over their heads" in seeking to have the bathroom incidents investigated. The attachments to the Complaint also include a Temporary Custody Order from the Circuit Court of Madison County, Illinois, dated November 10, 2005, which awarded DCFS temporary custody of Plaintiff's four minor children. Id., p. 17-20.


A. Robert Schiller

The record reveals that Plaintiff has failed to serve Defendant Schiller with a summons and copy of the Complaint as required under Federal Rule of Civil Procedure 4. By Text Order dated July 24, 2006, the Court gave Plaintiff notice of this deficiency. The Court notes that Plaintiff has now informed the Court that Defendant Schiller was incorrectly identified as Bob Sheers originally. While Plaintiff asked the Court to correct the name for the record, Plaintiff has nevertheless failed to serve Defendant Schiller after discovering his true name. Therefore, Plaintiff's claims against Defendant Schiller are dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 4(m).

B. Tom Rosene

Defendant Rosene of the Illinois State Board of Education is named in the caption of the Complaint; however, there are no allegations involving Rosene in the body of the Complaint and the Complaint does not seek any relief against Rosene. Attached to the Complaint is a letter that Plaintiff and the children's mother wrote to the Governor of the State of Illinois dated November 15, 2005. See Complaint, Ex. 1, p. 5-7. The letter reads as follows, "last month Tom Rosene was told about what happen [sic] to Louis and ignored that & didn't Report or do anything about it either . . ." This is the sole allegation relating to Rosene in the Complaint and attachments.

Under the federal notice pleadings standard, a complaint must include both "a short and plain statement of the claim showing that the pleader is entitled to relief, and . . . a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). The complaint need not plead facts, but must provide the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). In the instant case, the Complaint fails to seek any relief relating to Defendant Rosene. Dismissal of Defendant Rosene is, therefore, appropriate on this basis. Moreover, Plaintiff's Complaint seeks only injunctive relief. As the Seventh Circuit has recognized in the § 1983 context, "When there is no continuing violation of federal law, injunctive relief is not part of a federal court's remedial powers." Al-Alamin v. Gramley, 926 F.2d 680, 685 (7th Cir. 1991). The allegations of the Complaint and attachments are insufficient to establish a continuing violation of federal law by Defendant Rosene. Plaintiff, thus, fails to state a claim against Rosene.

In response to Rosene's Motion to Dismiss, Plaintiff has set out additional factual allegations involving Rosene. Plaintiff's Response to Defendant's Motion to Dismiss (d/e 16). Even if the Court were to liberally construe Plaintiff's pro se Response as a request to amend the Complaint, such an amendment would be futile. At no point does Plaintiff request any relief relating to Rosene. Furthermore, the additional allegations set out in Plaintiff's Response are again insufficient to establish a continuing violation of federal law by Defendant Rosene. Thus, even if these ...

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