The opinion of the court was delivered by: Murphy, Chief District Judge
This matter is before the Court on the motion for summary judgment brought by Defendants Mearl Justus and the County of St. Clair, Illinois ("St. Clair County") (Doc. 63), the motion for summary judgment brought by Defendants Cahokia School District # 187 ("Cahokia"), Lela Prince, and Dwayne Cotton (Doc. 65), and the motions for reconsideration (Doc. 70, Doc. 71) brought by Plaintiff Teniesha Adams, by and through Brenda Wilson as her mother and next friend. For the following reasons the motions for summary judgment are GRANTED and the motions for reconsideration are DENIED.
This case arises from an incident that occurred on April 27, 2004, in which Teniesha Adams, a sixth-grade student at Wirth/Parks Middle School in Cahokia, Illinois, allegedly was sexually assaulted on the school's premises after regular classroom hours by Craig Nichols, a classmate who was serving a period of after-school detention at the school on that afternoon. See Doc. 1 at 3-4 ¶¶ 2-5; Doc. 68, Ex. A at 31-32; Id., Ex. B at 37; Id., Ex. G at 24. Adams immediately reported the incident to Lela Prince, a principal at the school. See Doc. 66, Ex. O; Doc. 68, Ex. A at 31-32; Id., Ex. B at 39-40. Prince notified Dwayne Cotton, the school resource officer charged with investigating disciplinary infractions at the school and a deputy of the St. Clair County Sheriff's Department, about the incident and informed Adams's mother, Brenda Wilson, that there was likely to be an investigation of the incident by Cotton. See Doc. 64, Ex. B at 25, 37; Doc. 66, Ex. K; Id., Ex. L; Doc. 68, Ex. B at 53; Id., Ex. C at 113-14. Wilson in turn informed Prince that she did not wish for her daughter to be interviewed by Cotton about the alleged attack without Wilson's knowledge. See Doc. 68, Ex. C at 114-15. The following morning, April 28, 2004, Cotton called Adams out of class and escorted her to his office, where he interviewed her about the alleged attack the previous day. See Doc. 64, Ex. A at 77; Id., Ex. B at 107, 120. During the interview Wilson spoke with Cotton by telephone and asked him to terminate the interview and send Adams home. See Doc. 64, Ex. B at 103-04; Doc. 68, Ex. C at 128. Cotton declined to end the interview but invited Wilson to retrieve her daughter from the school. See Doc. 64, Ex. B at 104. In the course of the interview, Adams consented to be examined by a female school employee for scratches on her back and arms caused by the alleged assault. See Doc. 64, Ex. A at 82, 87; Doc. 66, Ex. N. At the conclusion of the interview, Cotton escorted Adams back to class. See Doc. 64, Ex. A at 87-88.
Adams by Wilson as her next friend subsequently filed this action in connection with the alleged assault and the investigation thereof. In her complaint Adams asserted claims pursuant to 42 U.S.C. § 1983, alleging deprivations of her constitutional rights by persons acting under color of state law, together with claims under Illinois state law. Specifically, Adams alleged violation of her Fourteenth Amendment substantive due process rights by Prince and Cahokia, which operates Wirth/Parks Middle School, violation of her Fourth Amendment right to be free of unlawful searches and seizures by Prince, Cotton, Cahokia, and Mearl Justus, the Sheriff of St. Clair County, and conspiracy to violate her Fourth Amendment rights by Prince and Cotton. Adams also alleged claims under Illinois law for false imprisonment and intentional infliction of emotional distress against Prince, Cotton, Cahokia, Justus, and St. Clair County. By Order entered September 29, 2005, the Court dismissed with prejudice Adams's claims of false imprisonment and intentional infliction of emotional distress for failure to state a claim upon which relief can be granted. The Court also dismissed Adams's section 1983 claims against Prince and Cotton in their official capacities.
Prince, Cotton, and Cahokia have moved for summary judgment as to Adams's claims brought pursuant to 42 U.S.C. § 1983 for violations of her rights under the Fourteenth Amendment and the Fourth Amendment. Justus and St. Clair County have brought a separate request for summary judgment as to Adams's Fourth Amendment claims. Adams has responded to the summary judgment motions and has moved in turn for reconsideration of the Court's dismissal of her false imprisonment claims. Having reviewed all of the submissions of the parties and conducted a hearing on the subject motions, the Court now is prepared to rule.
Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In considering a summary judgment motion, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir. 1981). On summary judgment a court may not make credibility determinations or weigh the evidence, because these are tasks for a factfinder. See Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th Cir. 1994); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 (7th Cir. 1993). In evaluating a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
2. Fourteenth Amendment Claims
The Fourteenth Amendment provides, in relevant part, that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Adams alleges that Prince and Cahokia, acting under color of state law, violated her due process rights by failing to protect her from an assault by Craig Nichols. In evaluating this claim on summary judgment, the Court must proceed from the assumption that the state has no constitutional duty to protect its citizens from assaults by fellow citizens. "The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order." Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). Cf. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) ("The makers of our Constitution . . . . conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."). "The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them." Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983).
The purpose of the Constitution, then, is to shield citizens from the state, not from their fellow citizens. Thus, "there is no constitutional right to be protected by the state against being murdered by criminals or madmen," Bowers, 686 F.2d at 618, or any of the host of lesser insults citizens may visit on one another. For example, in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Court held that employees of a state family services agency owed a little boy no constitutional duty to protect him from harm while in the custody of an abusive father:
[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means . . . . Its purpose [is] to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.
Id. at 195-96. Accordingly, the Court held that the state officers were not liable under 42 U.S.C. § 1983 for the massive brain damage the boy's father eventually inflicted on him. See 489 U.S. at 193, 202-03.
There is, of course, an exception to the rule that the state generally owes no constitutional duty of protection for cases in which the state has assumed custody over an individual and, by reason of the custody, has deprived the individual of the ability to care for himself or herself. See, e.g., Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244-45 (1983) (holding that due process requires the state to provide medical care to suspects in police custody who have been injured while being apprehended by the police); Youngberg v. Romeo, 457 U.S. 307, 317 (1982) ("When a person is institutionalized . . . and wholly dependent on the State . . . a duty to provide certain services and care does exist."); Estelle v. Gamble, 429 U.S. 97, 103-04 (1976) (holding that, because a prison inmate is unable "by reason of the deprivation of his liberty [to] care for himself, " it is only "just " that the state be required to treat the inmate's serious medical needs: "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met."). However, although the Supreme Court of the United States has not spoken directly to the issue, the Court has hinted that, notwithstanding mandatory school-attendance laws, public schools do not have a custodial relationship with students such as to give rise to a constitutional duty to protect students from injury by third parties. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (citing DeShaney, 489 U.S. at 200) ("[W]e do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional 'duty to protect[.]'").
The United States Court of Appeals for the Seventh Circuit, like the majority of lower federal courts, holds that schools do not owe a constitutional duty to protect students. In J.O. v. Alton Community Unit School District 11, 909 F.2d 267 (7th Cir. 1990), the court ruled that public school officials were not under a duty to protect students from sexual abuse by a teacher, reasoning that "compulsory school attendance [does not] make[ ] a child unable to care for basic human needs . . . . Schoolchildren are not like mental patients and prisoners such that the state has an affirmative duty to protect them." Id. at 272-73. The J.O. court concluded that, because parents still maintain primary responsibility for their children, compulsory school attendance does not create the sort of special relationship that would trigger heightened protection as a matter of due process. See id.at 272.*fn1 The Seventh Circuit's position that school officials owe no constitutional duty to protect students plainly is the majority view in the federal courts. See, e.g., Wyke v. Polk County Sch. Bd., 129 F.3d 560, 569 (11th Cir. 1997); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir. 1997); Doe v. Claiborne County, 103 F.3d 495, 510 (6th Cir. 1996); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993); Maldonado v. Josey, 975 F.2d 727, 731-33 (10th Cir. 1992); D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1372 (3d Cir. 1992); Plumeau v. Yamhill County Sch. Dist., 907 F. Supp. 1423, 1442-43 (D. Or. 1995); Doe v. Douglas County Sch. Dist. RE-1, 770 F. Supp. 591, 593 (D. Colo. 1991).
In this case, as discussed, Craig Nichols's alleged assault on Adams occurred outside regular school hours when Adams was under no compulsion to be on the school's premises, so that any constitutional duty of protection Prince and Cahokia may have owed her likely terminated at the end of the regular school day. See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 529 (5th Cir. 1994) (in a suit against school officials arising from an incident in which a student was shot to death during a school dance, holding that the school owed no constitutional duty to protect students during activities held outside the hours students are required to attend school); Brum v. Town of Dartmouth, 704 N.E.2d 1147, 1160 (Mass. 1999) (a school owed no duty to protect a student who was older than the age for mandatory school attendance). Although Adams attempts to show that Prince and Cahokia assumed a duty to protect her by placing her in a position of danger, these efforts are not convincing. In DeShaney, of course, the Court acknowledged that the state may assume a constitutional duty to protect an individual from harm when the state takes actions that render the individual "more vulnerable" to such harm. 489 U.S. at 201. Adams tries to show that school officials placed her in the path of harm because Janice Brown, the teacher supervising Nichols's after-school detention on the day of the alleged assault, sent Nichols to look for Adams in the school building and may have violated a school regulation mandating close supervision of students in detention. See Doc. 68, Ex. H at 28; Id., Ex. L. Drawing all inferences in Adams's favor as the Court must on summary judgment, her evidence clearly does not satisfy the stringent burden of proof she must shoulder to establish liability under 42 U.S.C. § 1983.*fn2
Although in DeShaney the Court recognized that the state may assume a constitutional duty of protection where it places an individual in danger, the DeShaney Court recognized also that "the Due Process Clause of the Fourteenth Amendment . . . does not transform every tort committed by a state actor into a constitutional violation." 489 U.S. at 202. It is well settled that, to establish a violation of 42 U.S.C. § 1983, more than simple negligence is required. See Davidson v. Cannon, 474 U.S. 344, 348 (1986) ("[T]he protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by prison officials."); Galdikas v. Fagan, 342 F.3d 684, 690 (7th Cir. 2003) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)) ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process."); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147-48 (7th Cir. 1983) (the suicide of a pretrial detainee resulting from "simple negligence" on the part of prison officials does not amount to a violation of due process). This is because it is not the office of section 1983 to federalize the entire field of state tort law. See Daniels v. Williams, 474 U.S. 327, 332 (1986) (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)) ("We . . . reject[ ] reasoning that . . . would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States[.]").
As a rule, to establish a violation of substantive due process, a plaintiff must show that governmental conduct "shocks the conscience." See Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126 (1992) (holding that, to establish a claim for a violation of substantive due process, a plaintiff must show "arbitrary government action that . . . shock[s] the conscience . . . of federal judges."); Rochin v. California, 342 U.S. 165, 172 (1952) (first enunciating the "shocks the conscience" standard in barring the admission of evidence at a criminal trial that had been obtained by forcibly subjecting the defendant to a stomach pump). Governmental conduct "shocks the conscience" when it "constitute[s] a denial of fundamental fairness, shocking to the universal sense of justice." Armstrong v. Squadrito, 152 F.3d 564, 570 (7th Cir. 1998). "[O]nly the most egregious official conduct . . . is arbitrary in the constitutional sense" and the official conduct must be "unjustifiable by any governmental interest." Dunn v. Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962, 965 (7th Cir. 1998) (quoting Lewis, 523 U.S. at 846, 849) (emphasis in original). See also Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1013 (7th Cir. 2002). The Court notes that several sister courts have applied the shocks-the-conscience standard in suits regarding alleged violations by school officials of the substantive due process rights of students. See, e.g., Hasenfus v. LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999) (in a suit arising out of a gym teacher's failure, despite a rash of suicides at a school, to supervise a despondent student who attempted suicide, holding that, to be actionable, a school's dereliction of duty would have to approximate conduct "so extreme as to . . . shock the conscience."); Canty v. Old Rochester Reg'l Sch. Dist., 54 F. Supp. 2d 66, 72 (D. Mass. 1999) (applying the shocks-the-conscience standard to a student's allegation that school officials required her to attend class under the supervision of a teacher who had sexually assaulted her).
At an absolute minimum, to be actionable under 42 U.S.C. § 1983 governmental conduct must amount to deliberate indifference, a standard that, as discussed supra at footnote 1, dovetails with the familiar standard for municipal liability under Monell. See Sivard v. Pulaski County, 959 F.2d 662, 669 (7th Cir. 1992) ("A § 1983 claim must be based on deliberate indifference, not on mere inadvertence."). "In this Circuit, deliberate indifference 'is merely a synonym for intentional or criminally reckless conduct.'" Thomas v. Walton, No. CIV. 02-969-GPM, 2006 WL 3360516, at *4 (S.D. Ill. Sept. 19, 2006) (quoting Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991)). "Deliberate indifference does not encompass negligence, or even gross negligence, as those terms are used in the context of tort cases." Id. (citing Shockley v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1987)). Instead, the public official must "know[ ] of and disregard[ ] an excessive risk to . . . health or safety[.]'" Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996) (quoting Williams v. O'Leary, 55 F.3d 320, 324 (7th Cir. 1995)). "Deliberate indifference 'implies at a minimum actual knowledge of impending harm easily preventable, so that a conscious, culpable refusal to prevent harm can be inferred from the defendant's failure to prevent it.'" Thomas, 2006 WL 3360516, at *4 (quoting Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985)). See also James v. Milwaukee County, 956 F.2d 696, 700 (7th Cir. 1992) (stating that "deliberate indifference" means "recklessness in a criminal, subjective sense: disregarding a risk of danger so substantial that knowledge of the danger can be inferred.") (emphasis omitted).
It may be that the shocks-the-conscience standard and the deliberate indifference standard are functionally the same. See Bublitz v. Cottey, 327 F.3d 485, 490 (7th Cir. 2003) (quoting Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir. 1998)) ("Deliberate indifference . . . is merely the manifestation in certain situations of a more general inquiry, which is whether the government conduct at issue . . . shocks the conscience."). Regardless of which standard applies to Adams's due process claims, nothing in the record shows conduct by Prince and Cahokia sufficient to establish a violation of Adams's substantive due process rights. The record reflects that Craig Nichols had a fairly extensive disciplinary record, consisting in great part of trivial infractions like disrupting classes by eating in class, whistling in class, and so on, but also including more serious infractions like fighting with other students. See Doc. 66, Ex. B; Doc. 68, Ex. F at 44-46; Id., Exs. I-K; Doc. 78, Ex. C. However, while it appears from the record that Nichols was not a model student, there also is nothing in the record to suggest that school officials knew or should have known that he was capable of committing a sexual assault on another student. Both Prince and Cotton testified that, before the alleged assault, they had no specific knowledge of Nichols at all. See Doc. 66, Exs. D-E. Adams herself testified that, before the incident, Nichols was on friendly terms with her:
Q: With regard to Craig Nichols, would you describe you and he as friends before this incident --
Q: Had he ever done anything to you before ...