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D'Alessandro v. Brumbaugh

December 12, 2007


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, we grant in part and deny in part the motion to dismiss.


Plaintiffs allege that in September 2006, Plaintiff Tyler D'Alessandro ("Tyler") was 12 years old and was enrolled in the 7th grade at Indian Trail Junior High School ("Indian Trail"). According to Plaintiffs, on Friday, September 22, 2006, Tyler left the school grounds after school, accompanied by his friend James Wisemiller ("Wisemiller") and an eighth-grade student that Tyler did not know ("Eighth-grader"). Plaintiffs allege that Tyler opened his book bag and realized that he was carrying a utility knife ("Knife") that he put in his bag on a prior occasion when he made a trip to his father's workshop. According to Plaintiffs, Tyler showed the Knife to Wisemiller and let Wisemiller hold the Knife. The Eighth-grader allegedly then took the Knife from Wisemiller and ran at another student, brandishing the Knife in a menacing manner. The Eighth-grader allegedly then returned the Knife to Tyler and Tyler and Wisemiller both left the area.

Plaintiffs allege that on Monday, September 25, 2006, a parent of the student that the Eighth-grader allegedly menaced with the Knife complained to Defendant Michael Brumbaugh ("Brumbaugh"), the Dean of Students at Indian Trail. Brumbaugh then allegedly had Tyler removed from class and questioned Tyler about the incident. According to Plaintiffs, Brumbaugh then conferred with Defendant Terry Sliva ("Sliva"), the Building Principal for Indian Trail. Brumbaugh and Sliva allegedly decided that Brumbaugh should remove Tyler from school and drive Tyler to his home. Brumbaugh then drove Tyler to his home. Once at Tyler's home, Brumbaugh allegedly ordered Tyler to let them into the residence to search for the Knife. Brumbaugh allegedly found the Knife in the residence and then took the Knife and Tyler back to school. Plaintiffs allege that neither of Tyler's parents, Plaintiff Steve D'Alessandro ("Steve") nor Plaintiff Kelly D'Alessandro ("Kelly") were contacted before Tyler was removed from school. Plaintiffs also contend that neither Steve nor Kelly gave permission for the search of their residence. In addition, Plaintiffs claim that Indian Trail never informed Steve or Kelly of the search of the residence and that they only became aware of the search when Tyler returned home from school and told them. Plaintiffs also claim that during the search of the residence, Kelly was at him taking a shower, and that Brumbaugh was aware of that fact, but did not wait to speak with Kelly before leaving the residence.

On September 27, 2006, Tyler was allegedly suspended for 10 days for the Knife incident. Steve and Kelly allegedly complained about the incident and the actions of the school officials. In retaliation for the complaints, Defendant Donald Hendricks ("Hendricks"), the Superintendent of the School District, allegedly increased Tyler's punishment to a transfer from Indian Trail to an alternative educational program. Plaintiffs contend that Steve and Kelly continued to complain about the actions of the school officials and in retaliation, Tyler's punishment was again increased, this time to a recommendation for expulsion.

In the complaint, Plaintiffs also make reference to an action in the Circuit Court of DuPage County. Plaintiffs contend that on February 20, 2007, the court in that matter determined that the search of their residence allegedly orchestrated by Sliva and Brumbaugh violated Plaintiffs' Fourth Amendment rights.

Plaintiffs include in the complaint in the instant action First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983 ("Section 1983") (Count I), Section 1983 Fourth Amendment conspiracy claims (Count II), Section 1983 due process conspiracy claims (Count III), state law false imprisonment conspiracy claims (Count IV), and a state law indemnity claim (Count V). Defendants move to dismiss all the claims.


In ruling on a motion to dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455(quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


I. First Amendment Retaliation Claims (Count I)

Defendants argue that the court should dismiss the First Amendment retaliation claims since Plaintiffs do not allege that they engaged in any protected speech. For a Section 1983 First Amendment retaliation claim a plaintiff must establish that: (1) "the plaintiff's speech was constitutionally protected," and (2) "the defendant's actions were motivated by the plaintiff's constitutionally protected speech." Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999). If the plaintiff is able to "demonstrate that his constitutionally protected speech was a substantial or motivating factor in the defendant's actions, the defendant is given the opportunity to demonstrate that it would have taken the same action in the absence of the plaintiff's exercise of his rights under the First Amendment." Id. Defendants argue that Plaintiffs have not alleged facts that indicate that they engaged in protected speech.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend I. The First Amendment protects a parent from retaliation for complaining to school authorities of a school attended by the parent's child when the parent is speaking out about matters of public concern. Crowley v. McKinney, 400 F.3d 965, 973 (7th Cir. 2005). The First Amendment does not protect such a complaining ...

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