United States District Court, N.D. Illinois, Eastern Division
JOHN DOE and JANE DOE, individually and as parents and next friends of DOE CHILD, a minor, Plaintiffs,
JENNY GROSCH and COMMUNITY CONSOLIDATED SCHOOL DISTRICT 15, Defendants.
MEMORANDUM OPINION AND ORDER
Doe and Jane Doe, on their own behalf and as parents of Doe
Child (“D.C.”), filed this suit in the Circuit
Court of Cook County, Illinois, against Community
Consolidated School District 15 and Jenny Grosch, the
principal of D.C.'s public elementary school, bringing
federal and state law claims arising from his alleged
bullying at school. Doc. 1-1. After removing the suit to
federal court, Doc. 1, the Does moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the complaint, Doc. 13.
The motion is granted as to the federal claims, which are
dismissed without prejudice. If the Does do not attempt to
replead those claims, or if they attempt to do so and fail,
the court will exercise its discretion under 28 U.S.C. §
1367(c)(3) to relinquish supplemental jurisdiction over the
state law claims (over which there is no diversity
jurisdiction) and remand them to state court.
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in the Does' brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013). The facts are set forth as favorably to the Does
as those materials allow. See Pierce v. Zoetis,
Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting
forth those facts at the pleading stage, the court does not
vouch for their accuracy. See Jay E. Hayden Found. v.
First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir.
born in 2002, attended public elementary school in a
northwest suburb of Chicago from Summer 2009 to Spring 2014.
Doc. 1-1 at ¶¶ 2, 11, 14. D.C. suffers from several
psychological conditions, including Mixed
Receptive-Expressive Language Disorder, Predominantly
Inattentive Type Disorder, and Attention Deficit
Hyperactivity Disorder. Id. at ¶ 5. A serious
manifestation of those conditions is that D.C. takes all
statements literally, regardless of context or tone.
Id. at ¶ 8.
became a target of bullying at school because of his
disabilities, as Grosch and the school's other faculty
and staff were aware. Id. at ¶¶ 9-10.
Faculty and staff instructed D.C. not to “tattle”
on classmates who bothered him; because of his disabilities,
D.C. understood this to mean that he should never report any
bullying, no matter how severe. Id. at ¶¶
winter, the school typically maintained a large snow pile on
the playground. Id. at ¶¶ 28-29. As the
faculty and staff knew, children often played behind the snow
pile, where they could not be seen from the school doors.
Id. at ¶¶ 33-34. Although the faculty and
staff were responsible for supervising students during
recess, they typically remained near the doors during outdoor
recess breaks in the winter. Id. at ¶ 34. On at
least two occasions between December 2013 and February 2014,
a group of students brought D.C. behind the snow pile, held
him face down on the ground, and gyrated against his backside
while yelling “ride the [D.C.] train” and
“ride the [D.C.] horse.” Id. at ¶
January 2014, the Does became increasingly concerned by
changes in D.C.'s behavior, including his gyrating on
others. Id. at ¶ 48. Apparently after
discussing the bullying incidents with D.C., the Does met
with Grosch on February 27 to inform her of what had
happened. Id. at ¶ 49. The next day, Grosch
questioned D.C. and other children thought to be involved,
and then reported her findings to the Does, telling them that
a known bully of D.C had organized a “bull-riding
game” with D.C.'s consent. Id. at
¶¶ 50-52. Grosch told the Does that she would
ensure that the offending students met with and apologized to
D.C. Id. at ¶ 53. The Does feared that such a
meeting would embarrass and distress D.C., and they asked
Grosch to remedy the situation in another way, but she did
not suggest an alternative. Id. at ¶¶
54-55. Around the same time, a student pushed D.C. to the
ground during recess. Id. at ¶ 57.
further abuse and concerned that the school was not taking
adequate protective action, the Does removed D.C. from the
school and eventually enrolled him at a private school.
Id. at ¶¶ 60-61. D.C. continues to suffer
emotional distress from the incidents. Id. at ¶
62. Grosch never disciplined the students who bullied D.C. or
the teachers who failed to supervise the students during
recess. Id. at ¶¶ 63-64.
Does' federal claims, which arise under 42 U.S.C. §
1983, allege violations of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. Id.
at ¶¶ 122-142. The § 1983 claims against the
District must satisfy the municipal liability standards set
forth in Monell v. Department of Social Services of City
of New York, 436 U.S. 658 (1978). The Does have
clarified that the federal claims against Grosch are official
capacity claims, Doc. 18, making them identical to the
Monell claims against the District. 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.”). The federal claims can
survive, then, only if the Does' allegations establish a
basis for municipal liability under Monell.
municipality may not be held liable under § 1983 based
on a theory of respondeat superior or vicarious liability. A
municipality only may be held liable under § 1983 for
constitutional violations caused by the municipality itself
through its own policy or custom.” Jenkins v.
Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). To state a
Monell claim, the plaintiff must allege facts
sufficient to show that a municipal employee's
unconstitutional act was caused by: “(1) an express
[municipal] policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that,
although not authorized by written law or express municipal
policy, is so permanent and well settled as to constitute a
custom or usage with the force of law; or (3) an allegation
that the constitutional injury was caused by a person with
final policymaking authority.” Gable v. City of
Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (citation
omitted); see also Glisson v. Ind. Dep't of
Corr., 849 F.3d 372, 379 (7th Cir. 2017) (en banc). In
addition to showing that the municipality acted culpably in
one of those three ways, the plaintiff must allege causation,
meaning that the municipality, “through its deliberate
conduct, … was the ‘moving force' behind the
injury alleged.” Bd. of Comm'rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 404 (1997).
Does seek to establish Monell liability in the
second manner described above, arguing that three District
customs caused the bullying of D.C. First, the Does claim
that the teachers at D.C.'s school typically stayed close
to the school doors during outdoor recess breaks in the
winter, which prevented them from seeing behind the snow
pile, where D.C. was assaulted. Doc. 1-1 at ¶¶
32-36, 88. But to base Monell liability on a
governmental custom, a plaintiff must show that an activity
“was so persistent and widespread that [municipal]
policymakers should have known about the behavior.”
Latuszkin v. City of Chicago, 250 F.3d 502, 505 (7th
Cir. 2001). In Illinois, the final policymakers for school
administration are district school boards. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1061 (7th Cir. 1998). The Does do not allege
that Grosch or any other school employee, rather than the
school board, had policymaking authority over this matter. At
most, then, the Does have described a custom at D.C.'s
school, not a custom of the District, and they give no reason
why the District was or should have been aware that teachers
at a single elementary school sometimes failed to adequately
supervise outdoor recess breaks. Consequently, the Does'
Monell claim cannot rest on this alleged custom.
See Latuszkin, 250 F.3d at 505 (“[The
plaintiff's] complaint must be dismissed … because
he claimed no more than a policy or custom of the CPD.
Nowhere did he claim a policy or custom of the City.”);
Classroom Teachers of Dall. v. Dall. Indep. Sch.
Dist., 164 F.Supp.2d 839, 849 (N.D. Tex. 2001)
(“[A]llegations of specific instances of misconduct by
the Principal at one school … do not constitute
allegations of a persistent, widespread practice of
[District] officials.”) (internal quotation marks
the Does claim that the District has a custom of failing to
sufficiently investigate bullying or to discipline offenders.
Doc. 1-1 at ¶ 88, 95-100. To give rise to
Monell liability, municipal employees' conduct
must occur frequently enough to give rise to a reasonable
inference that the public employer “is aware that
public employees engage in the practice and do so with
impunity.” Cosby v. Ward, 843 F.2d 967, 983
(7th Cir. 1988) (internal quotation marks omitted). While
there is no clear consensus as to how often the offending
conduct must occur to constitute a custom, “it must be
more than one instance, or even three.” Thomas v.
Cook Cnty. Sheriff's Dept., 604 F.3d 293, 303 (7th
Cir. 2010) (internal quotation marks and citation omitted).
The Does have pointed to only one allegedly insufficient
bullying investigation: Grosch's investigation of the
incidents involving D.C. It follows that this alleged custom,
like the first, is not sufficiently widespread to support a
Monell claim. ...