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Mosely v. City of Chicago

March 21, 2008


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Lillian Mosely, acting on behalf of herself and her minor son Melvin Jackson, has sued the City of Chicago, the Chicago Board of Education, and four Board employees under 42 U.S.C. § 1983 and state law. The individual defendants have moved to dismiss Mosely's amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the Court dismisses Mosely's claims made on Melvin's behalf but denies defendants' motion with respect to her claims made on her own behalf.


On July 16, 2003, Mosely filed a pro se suit against a defendant she named as "Chicago Public Schools, Board of Education." She alleged that she had been elected "IASA chairperson" for Samuel Gompers Elementary School -- a reference to the Improving America's Schools Act, Pub. L. No. 103-382 -- but that school administrators froze her out from any role in the school budgeting process during the 1999-2000 and 2000-2001 school years despite her efforts to be involved in that process, as her status as IASA chairperson apparently required. Mosely alleged that after she complained about this, school officials retaliated against her and her son Melvin, who was a student at the school, in September-November 2000. In fact, she alleged, an official had made an implied threat to do exactly that a few months earlier, in June 2000. As a result of the harassment, Mosely claimed, she suffered a nervous breakdown in June 2000.

On September 16, 2003, the Board of Education filed an initial motion to dismiss, arguing that Mosely's claim was pled too vaguely to satisfy the requirements of the Federal Rules of Civil Procedure. The Court denied this motion on September 23, 2003 after making inquiry of Mosely in open court regarding the basis for her claim. The Court understood Mosely to be claiming that Melvin had been retaliated against for Mosely's exercise of her free speech rights under the First Amendment.

The Board then filed a second motion to dismiss on October 14, 2003, arguing that because Mosely had not alleged any retaliation after November 2000, her claim was time-barred because it was not filed within two years of that date. After Mosely filed a response and the Court heard oral argument, the Court dismissed the case in an order dated October 24, 2003. In that order, the Court again noted that it had previously understood Mosely's claim to involve the alleged retaliation against Melvin. At oral argument on October 20, 2003, however, Mosely had advised the Court that she had a separate lawsuit in which she had made a claim on Melvin's behalf. As a result, this Court stated that it would treat the present case as alleging only retaliation against Mosely herself. Mosely v. Bd. of Educ., Case No. 03 C 4915, Order of Oct. 24, 2003 at 2.

The Court went on to say in its October 24, 2003 order that if the present suit were based on the alleged retaliation against Melvin, it would be time-barred, because the complaint alleged that retaliation had occurred, at the latest, in November 2000, well more than two years before she filed suit in July 2003. But setting that aside -- based on the fact that the claimed retaliation against Melvin was the subject of a separate suit -- the Court concluded that Mosely was left with nothing to go on that would sustain a claim. With regard to retaliation directed at Mosely herself rather than at Melvin, Mosely claimed only that she was frozen out of the budgetary process at the school; the Court concluded that this was not sufficiently adverse to amount to actionable retaliation for her exercise of her First Amendment rights. The Court therefore dismissed the case. Id.

Mosely appealed, and the Seventh Circuit appointed counsel to represent her. The appeal was consolidated with Mosely's separate appeal from another judge's dismissal of her separately-filed suit on Melvin's behalf. A little over two years after this Court had dismissed Mosely's case, the Seventh Circuit reversed both dismissal orders. Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527 (7th Cir. 2006). With regard to the present case, the court concluded that the actions Mosely alleged did amount to actionable retaliation. On the limitations issue, the court of appeals stated as follows:

Apart from the fact that the statute of limitations is . . . an affirmative defense, there are other problems with the district court's conclusion that her retaliation action was untimely. Even if the incidents relating to Melvin occurred more than two years before she filed this case, Mosely's complaint recounted other incidents of harassment that took place within the two-year time limit. In response to the court's question, "through what period of time do you contend that your son was being harassed," Mosely responded "up until I took him out the school." That date was September 18, 2001. To the extent that her claim is based on incidents that occurred between July 16, 2001, and September 18, 2001, it is not time-barred, because she filed her complaint on July 16, 2003.

We do not exclude the possibility that discovery may reveal that Mosely is unable to prove that acts of harassment took place within that critical window of time. She has alleged, however, that they did, and that is enough for purposes of Rule 12(b)(6).

Id. at 535.

Following remand, the attorney who had been appointed to represent Mosely on appeal remained in the case in an effort to settle it. When this proved unsuccessful, that attorney withdrew, and Mosely (at her request) was given time to retain new counsel. Retained counsel first appeared on Mosely's behalf in September 2006. Counsel filed an amended complaint about a month later, with the plaintiff identified as Mosely "individually and in behalf of her minor son, Melvin Jackson," and naming as defendants the City of Chicago, the Board, and four individuals: Sharon Grissett, Laura Lozada, "Mrs. Atkins," and Dean Thompson. The amended complaint identified Grissett as the principal of Gompers during the relevant period; Lozada and Atkins as teachers at Gompers; and Thompson as a Board employee working in administration.

In late October 2006, the Board filed a motion to dismiss; the other defendants had not yet been served with summons. It argued that Mosely's claims on her own behalf were time-barred based on the allegations in the amended complaint and that her claims on Melvin's behalf were likewise time-barred or alternatively were barred by the doctrine of claim preclusion based on the determination by the judge in the previous separately-filed case that administrative exhaustion requirements had not been met. In November 2006, the Court set a briefing schedule on the Board's motion. Mosely's response brief was somewhat delayed. The Court ultimately denied the motion to dismiss on March 12, 2007, concluding that the claim preclusion argument was lacking in merit, and declining to dismiss the case on limitations grounds, because Mosely had invoked the "continuing violation" doctrine, and the Court was unable to determine the matter on a Rule 12(b)(6) motion. Mosely v. City of Chicago, No. 03 C 4915, Order of Mar. 12, 2007 at 2. The Board thereafter answered the complaint.

At the next court date, in late March 2007, the Court ascertained that the individual defendants had not yet been served with summons. The Court extended the time for service more than once, and all the defendants were eventually served ...

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