Name of Assigned Judge Frederick J. Kapala Sitting Judge if Other or Magistrate Judge than Assigned Judge
Defendants' motion to dismiss  is granted in part and denied in part. All official capacity claims alleged against DeSchepper and Pinker are dismissed with prejudice. The Title IX claims alleged in Count I against DeSchepper and Pinker in their individual capacities are dismissed with prejudice. The Title IX claims alleged in Count I against the School District are dismissed without prejudice. The § 1983 claims alleged in Count II against the School District, which are based on an alleged practice constituting a custom or policy, are dismissed without prejudice. The § 1983 claims alleged in Count II against the School District, which are based on the final policymaking authority of DeSchepper and Pinker, are dismissed with prejudice. The individual § 1983 claims alleged in Count II against DeSchepper and Pinker are dismissed without prejudice. The claims alleged against the district defendants in Counts III and IV are dismissed without prejudice. Counts VIII and IX are dismissed without prejudice. Counts X and XI are dismissed with prejudice. Plaintiff is granted leave to file an amended complaint consistent with this order within 30 days.
O [For further details see text below.] Docketing to mail notices.
Plaintiff, Jane Doe, a minor, through her parents Julie and John Doe, have sued Durand School District 322 ("the School District"), its Superintendent Douglas DeSchepper, Durand High School Principal Jeff Pinker, and two former Durand High School teachers, Brett Meier and Jennifer Bland. The suit is based on allegations that Meier and Bland sexually abused and harassed plaintiff while she was a student at Durand High School. Before the court is a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss filed by the School District and its employees, DeSchepper and Pinker (collectively "the district defendants"). For the reasons stated below, the motion is granted in part and denied in part.
With leave of court, the specific factual allegations regarding Meier's and Bland's misconduct were alleged in an unredacted complaint. At this point, a redacted complaint has been filed and only the court and counsel have access to the unredacted complaint. The allegations include two instances of Meier's physical misconduct, one in February 2009, and another in September 2009. The unredacted complaint also includes allegations that Meier sexually harassed plaintiff verbally and through text messages. With regard to Bland, plaintiff alleges that in January 2009, Bland sent her two text messages which contained sexual content. Plaintiff alleges further that School District officials had actual notice of the misconduct and failed to act.
In Count I, plaintiff alleges sex discrimination against all defendants in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. In Count II, plaintiff alleges that all defendants violated her constitutional rights in violation of 42 U.S.C. § 1983. In Counts III and IV, plaintiff alleges the state law torts of intentional and negligent infliction of emotional distress, respectively, against all defendants. In Count V, plaintiff alleges state law battery against Meier. In Count VI and VII, plaintiff alleges Illinois Hate Crimes, 720 ILCS 5/12-7.1, against Meier and the School District, respectively. In Counts VIII and IX, plaintiff alleges negligence against DeSchepper, Pinker, Meier, and Bland; and the School District, respectively, based on their failure to report child abuse under the Illinois Abused and Neglected Child Reporting Act (IANCRA), 325 ILCS 5/4. In Counts X and XI, plaintiff alleges willful and wanton conduct by DeSchepper, Pinker, Meier, and Bland; and the School District, respectively, based on their failure to report child abuse under the IANCRA.
A complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A motion to dismiss should be granted if the plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the "notice pleading" of Rule 8 does not require "detailed factual allegations" supporting each element of a claim, it is not enough for a pleader to make "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949-50 (2009). A complaint will be dismissed unless it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). The pleader must provide specific allegations that, if true, make plaintiff's claim for relief more than speculative, Twombly, 550 U.S. at 555, which means "[p]laintiffs cannot raise a claim based on pure speculation, hoping later to find some basis for the claim in discovery." Johnson v. Vill. of Bellwood, No. 09 C 5511, 2010 WL 2653335, at *2 (N.D. Ill. July 1, 2010). In deciding a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the court should construe all of plaintiff's factual allegations as true and draw all reasonable inferences in plaintiff's favor. Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
B. Official Capacity Claims Against DeSchepper and Pinker
The district defendants argue that plaintiff's claims against DeSchepper and Pinker in their official capacities are redundant because suits against the Principal and Superintendent in their official capacities are actually suits against the School District. The court agrees. See Walker v. Sheahan, 526 F.3d 973, 977 (7th Cir. 2008) ("Actions against individual defendants in their official capacities are treated as suits brought against the government entity itself."); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1021 n.3 (7th Cir. 1997) (noting that claims against school officials in their official capacities are actually claims against the school district and are therefore redundant). Accordingly, all official capacity claims against DeSchepper and Pinker are dismissed with prejudice.
C. Individual Title IX Claims Against DeSchepper and Pinker
Next, the district defendants argue that the Title IX claims against DeSchepper and Pinker in their individual capacities in Count I should be dismissed because Title IX does not provide for individual liability. This point is also well-taken. See Smith, 128 F. 3d at 1019 ("Because Title IX only protects against discrimination under any education program or activity receiving federal financial assistance, we agree . . . that a Title IX claim can only be brought against a grant recipient and not an individual."). Accordingly, the Title IX claims against DeSchepper and Pinker in their individual capacities are dismissed with prejudice.
D. Title IX Claims Against the School District
Title IX provides that,"[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). "[F]unding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999).
"[U]nder Title IX, a school district is liable for teacher-student sexual harassment only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so." Smith, 128 F. 3d at 1034 (quotation marks omitted). "As such, a school district is subject to a private damages action only where it is deliberately indifferent to known acts of discrimination or harassment." Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 605 (7th Cir. 2008). "[A] plaintiff in a Title IX damages suit based on a teacher's behavior must prove both actual knowledge of misconduct, not just actual knowledge of the risk of misconduct, and that the officials having that knowledge decided not to act on it." Id. (alteration and quotation marks omitted). However, "a school district need not possess actual knowledge of a teacher's acts directed at a particular plaintiff, but it must still have actual knowledge of misconduct that would create risks so great that they are almost certain to ...