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Rogers v. Cook

December 23, 2008

ERNEST ZACHARY ROGERS, BY AND THROUGH HIS MOTHER AND BEST FRIEND, LATONIA ROGERS, PLAINTIFF,
v.
CECIL COOK, UNKNOWN NUMBER OF UNNAMED SECURITY GUARD EMPLOYEES OF SCHOOL DISTRICT 206, GLENN GIANNETTI, RON RAY, FRANK KUZNIEWSKI, JAN KIEDAISCH AND SCHOOL DISTRICT 206, DEFENDANTS.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

This case is before the court on the motion of defendants, Board of Education of Bloom Township High School District 206 and Cecil Cook to dismiss Counts IV, V, VI and VII of the complaint, as well as Count II with respect to the unnamed security guards, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is granted in part and denied in part. We grant defendants' motion to dismiss the unnamed security guards from Count II without prejudice and give plaintiff leave to file an amended complaint identifying the identities of the unknown security guards. We also grant defendants' motion with respect to Counts V and VI. Counts V and VI are hereby dismissed in their entirety with prejudice. Furthermore, we grant defendants' motion with respect to the negligent retention claim in Count VII. Finally, we deny defendants' motion to dismiss with respect to Counts IV and the negligent supervision claim in Count VII.

BACKGROUND

Plaintiff Ernest Rogers, by and through his mother and best friend, Latonia Rogers, filed a seven count complaint before this court on April 21, 2008. The defendants in this case are Cecil Cook, a security guard at Bloom Trial High School ("BTHS"), as well as other unnamed security guards employed at BTHS, School District 206, and several administrators of School District 206, namely Superintendent Glenn Giannetii, Principal Ron Ray, Assistant Principal Frank Kuzniewski, and Dean of Students, Jan Kiedaisch. The allegations relate to an incident that occurred at BTHS in Chicago Heights, Illinois on February 7, 2008. Rogers alleges that a fight occurred in the hallway of BTHS, where he is a student, on February 7, 2008, and that he was not involved in the fight, but was present in the hallway at the time it occurred. Rogers further alleges that after the fight occurred, defendant Cook pushed Rogers through a glass door and then handcuffed him and took him to the principal's office. The complaint also alleges that Rogers was detained in the principal's office while in handcuffs, and that he was ultimately suspended from school for five days. Furthermore, once Rogers returned to school after serving his suspension, he alleges that defendants Ray, Kuzniewski and Kiedaisch forced him to sign a behavior contract.

Based on the series of events alleged above, Rogers alleges several claims against the defendants: 1) Count I alleges that defendant Cook violated 42 U.S.C. § 1983 by depriving him of his rights under the Fourth Amendment; 2) Count II asserts a false arrest claim against Cook and the unnamed security guards; 3) Count III alleges that defendants Giannetti, Ray, Kuzniewski and Kiedaisch violated his due process rights by suspending him without notice, without the opportunity to be heard, and without a reasonable basis; 4) in Count IV Rogers asserts assault and battery claims against defendants Cook and School District 206 through respondeat superior; 5) Count V asserts a false imprisonment claim against defendants Cook, unnamed security guards, and School District 206; 6) in Count VI Rogers asserts a false arrest claim against defendants Cook, unnamed security guards and School District 206; and 7) Count VII asserts negligent retention and negligent supervision claims against School District 206 for its alleged negligent retention and supervision of defendant Cook. We now turn to defendants' motion to dismiss Counts IV, V, VI and VII and Count II with respect to the unnamed security guards.

STANDARD OF REVIEW

For a Rule 12(b)(6) motion to dismiss, a complaint will not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim entitling him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th Cir. 1994). All well-pleaded facts will be taken as true and all reasonable inferences shall be drawn in the plaintiff's favor. See Cole v. U.S. Capital, 389 F.3d 719, 724 (7th Cir. 2004).

DISCUSSION

I. Count II: Unnamed Security Guards are Dismissed Without Prejudice

As an initial matter, Rogers' claim against "unnamed security guards" for false arrest in Count II is dismissed without prejudice. Such a claim is improper as it currently stands because the security guards have not been served and this court does not have jurisdiction over them. With respect to Count II, Rogers is given leave to amend his complaint and identify the identities of the unnamed security guards

II. Count IV: Assault and Battery

Count IV alleges assault and battery against defendant Cook and School District 206 through respondeat superior based on the allegations that Cook pushed Rogers through a glass door and subjected him to unnecessary and unreasonable force. Defendants also move to dismiss Count IV on the grounds that they are immune under Section 2-201 of the Local Governmental and Governmental Employees Act ("the Act"), which is explained in more detail in Section III infra. However, defendants' motion must be denied on this count. First, it is unclear whether Cook is entitled to the same immunity as the school district because in order for Cook to receive immunity under the Act, we must determine that his alleged pushing of Rogers through a glass door was a discretionary policy decision. See Section III infra. However, whether or not Cook is entitled to immunity is irrelevant at this time because the Act provides an exception to the grant of immunity if the defendants' act "constitutes willful and wanton conduct." 745 ILCS 10/2-202. Although we do not make a determination today with respect to whether the conduct was in fact willful and wanton, we believe that Rogers has pled sufficient facts that, if proved, could be considered willful and wanton. See Thurman v. Vill. of Hazel Crest, 570 F. Supp. 2d 1019, 1028-29 (N.D. Ill. 2008)(declining to grant summary judgment in favor of the defendants when it was unclear whether the defendants were immune from the assault and battery claims because there was a dispute regarding whether or not defendants' conduct was willful and wanton). Accordingly, Rogers has stated a cause of action for assault and battery against Cook and the school district through respondeat superior. Therefore, defendants' motion to dismiss is denied as to Count IV of the complaint.

III. Count V: False Imprisonment

In Count V, Rogers brings a claim for false imprisonment against Cook, unnamed security guards and School District 206. He alleges that he was falsely imprisoned when he was allegedly brought to the principal's office after the fight occurred and detained there in handcuffs for a period of time. However, School District 206 is immune from liability for false imprisonment under the Local Governmental and Governmental Employees Tort Immunity Act ("the Act"). The Act protects public entities and their employees from liability arising out of the operation of government. 745 ILCS 10/1-1011 (2008). A board of education is a local public entity pursuant to the Act. 745 ILCS 10/1-206. The Act provides that "a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission." 745 ILCS 10/2-201. A policy decision is one that requires the public entity or employee to balance competing interests and make a judgment call as to what solution will best serve each of those interests. Harinek v. 161 North Clark St. Ltd. Partnership, 181 Ill.2d 335, 341, 692 N.E.2d 1177 (1998). Furthermore, discretionary, as opposed to ministerial, acts, are those which are unique to a public office and involve the use of discretion as to the propriety of the act. Barnes v. Chicago Housing Authority, 326 Ill.App.3d 710, 719-20, 761 N.E.2d 283, 290 (1st Dist. 2001). The decision to bring Rogers to the principal's office was ...


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