United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall, United States District Judge
Tyanne Fonza, as next friend of her daughter T.G. (born in
2005), has sued the Chicago Public Schools
District #299 and other defendants for failure to provide
medical care and for permitting T.G. to play on unsafe
playground equipment. These claims arise from an injury T. G.
sustained while playing during recess on the playground at
KIPP Ascend Primary School (“KIPP Ascend”) on May
18, 2016, when T. G . was a student. Fonza pleads three 42
U.S.C. §1983 claims and one pendent state law claim that
commingles negligence and willful and wanton theories of
conduct. See Compl. ¶¶ 31-59, ECF No. 1.
Defendants move under Federal Rule of Civil Procedure
12(b)(6) to dismiss the complaint for failure to state a
claim upon which relief can be granted.
complaint itself is difficult to understand, since each count
incorporates all prior allegations and plaintiff in her
briefing switches from what each count appears to allege to
other theories based on allegations made outside that
specific count. To make matters worse, defendants' motion
to dismiss tries to guess at plaintiff's theories,
leading plaintiff in her response brief to argue that
defendants have it wrong and, by failing to address the
issues plaintiff intended to raise, waived their ability to
respond to those issues. Plaintiff does not appear to
appreciate how much damage the cases she cites in her
briefing do to her theories. The briefs are at best
marginally helpful. That said, a few issues can be addressed,
but whether the court has any better purchase on what
plaintiff is trying to allege than defendants do is unclear.
With those caveats, the court grants the motion to dismiss in
part and denies it in part based on the following analysis.
RULE 12(b)(6) STANDARD
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. When deciding a Rule 12(b)(6)
motion, the court must “construe the complaint in the
‘light most favorable to the' plaintiff.”
Zahn v. N. Am. Power & Gas, LLC, 847 F.3d 875,
877 (7th Cir. 2017) (quoting Bell v. City of
Chicago, 835 F.3d 736, 738 (7th Cir. 2016)). The court
also assumes that all of the well-pleaded facts in the
complaint are true and draws reasonable inferences in the
plaintiff's favor. See Iqbal, 556 U.S. at 678;
Collins v. Vill. of Palatine, 875 F.3d 839, 842 (7th
Cir. 2017) (citing McCauley v. City of Chicago, 671
F.3d 611, 615-16 (7th Cir. 2011)); Tagami v. City of
Chicago, 875 F.3d 375, 877 (7th Cir. 2017) (citing
United Cent. Bank v. Davenport Estate LLC, 815 F.3d
315, 318 (7th Cir. 2016)).
facts alleged are straightforward, and as just explained, the
court accepts them as true for purposes of deciding the
pending motion. KIPP Chicago Schools (“KIPP”)
operates KIPP Ascend which is part of Chicago Public Schools
District #299. Compl. ¶ 5. The four named individual
defendants occupied the following roles at KIPP Ascend on May
18, 2016: Ellen Davis-Bhattacharyya was the principal; Tessa
Catlett was an assistant principal; Michael Elliott was T. G
. 's teacher; and Corinne Hall (referred to as Ashley
Hall in plaintiff's brief in opposition to the motion to
dismiss) was a hall monitor. Compl. ¶¶ 7-10.
18, 2016, at approximately 8:30 a.m., Elliott took his class,
including T. G ., for recess. Compl. ¶ 12. During
recess, T. G. fell from the school's monkey bars and
injured herself on a seesaw located beneath the monkey bars.
Compl. ¶¶ 14-15. T. G. 's teacher, defendant
Elliott, took T. G . to the office of defendants Catlett and
Davis-Bhattacharyya, to be examined. Compl. ¶ 18. No
school nurse or trained medical staff was present in the
building. Compl. ¶ 19. Elliott, Davis-Bhattacharyya,
Hall, and Catlett failed to call 911 or an ambulance. Compl.
¶ 20. It is alleged that Davis-Bhattacharyya and Catlett
did not want to call an ambulance because it would cause the
school to incur a fee. Compl. ¶ 21. Instead, Elliott called
Fonza between 9 and 10 a.m. Compl. ¶ 22. It is not clear
if he did so on his own initiative or pursuant to another
defendant's directive. See Compl. ¶¶
21-22. Fonza arrived at KIPP at approximately 11:20 a.m. and
found T. G. alone in the hallway, without any adult
supervision, her eyes swollen from crying, bleeding from the
vaginal area through her clothes and in excruciating pain.
Compl. ¶¶ 17, 24, 25. Up to that time, “no
school employee [had] called for medical assistance or . . .
rendered any medical aid to T. G . .” Compl. ¶ 24.
“[O]bserving T. G. 's pants covered in blood[, ]
Fonza called an ambulance, ” Compl. ¶ 25, which,
at about 11:45 a.m., took T. G . to Mount Sinai Medical
Center, Compl. ¶ 26. T. G. was examined by Dr. Richard
Trester, who performed surgery to repair a sub-clitoral
laceration. Compl. ¶ 27. “On May 23, 2016, a
second surgery was performed . . . by Dr. Nuzhath Hussain at
the University of Illinois Hospital and Health Sciences
System to drain a hematoma which had developed on [T. G .
's] labia minora.” Compl. ¶ 28. T. G. missed
several weeks of school, endured pain and suffering and
incurred medical expenses as a result of this incident.
Compl. ¶ 29.
court analyzes defendants' arguments in the order they
appear in their motion. Plaintiff has abandoned her arguments
for imposing Monell liability on her § 1983
claims. As for those claims, though several theories
plaintiff advances fail, the complaint alleges a
state-created danger claim but not on the theory pleaded.
Defendants have not adequately developed their qualified
immunity arguments. Finally, the court considers a number of
attacks on plaintiff's state law claim, finding
principally that defendants, at this stage, have not
established that the Illinois Tort Immunity Act, 745 Ill.
Comp. Stat. 10/2-201, bars the claim.
Monell Liability of KIPP and the Board of
defendants first argue that plaintiff has failed to allege a
sufficient basis for imposing Monell liability for
the § 1983 claims against them. That is, they argue that
nothing is alleged that could be construed as a policy or
practice officially adopted or promulgated by those whose
acts may fairly be said to represent official policy. As a
result, the Board of Education (the proper defendant for the
named District #299) and KIPP Ascend should be dismissed as
defendants. As defendants point out, a local government
cannot be held liable on a respondeat superior
theory. See Monell v. Dep't of Social Servs. of City
of New York, 436 U.S. 658, 659 (1978). Under
Monell, Plaintiff must plausibly allege that an
official custom or policy of the district or KIPP was the
“moving force” behind the constitutional
deprivations alleged. Teesdale v. City of Chicago,
690 F.3d 829, 833 (7th Cir. 2012); see also White v. City
of Chicago, 829 F.3d 837, 839, 843-44 (7th Cir. 2016)
(discussing what Monell requires at the pleading
stage). A “custom or policy” can be established
by showing: (1) an express policy; (2) a widespread practice
that is so permanent and well settled as to constitute a
custom or usage; or (3) that the constitutional injury was
caused by a person with final policymaking authority.
Teesdale, 690 F.3d at 834.
has failed to respond to this argument, thereby waiving her
right to do so, and she has not alleged anything that the
court understands as an official policy of the Board of
Education or KIPP. Accordingly, the Board and KIPP are
dismissed as defendants from all of plaintiff's Section
1983 claims, Counts I, II and III. See Lekas v.
Briley, 405 F.3d 602, 614 (7th Cir. 2005) (“[E]ven
though a complaint may comply with the simple notice pleading
requirements of Rule 8(a)(2), it may nonetheless be dismissed
under Rule 12(b)(6) if the plaintiff does not present legal
arguments supporting the ‘substantive adequacy' or
‘legal merit' of that complaint.” (quoting
Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039,
1041 (7th C i r. 1999))), quoted Discount Inn, Inc. v.
City of Chicago, 72 F.Supp.3d 930, 933-34 (N.D. Ill.
2014) (“Plaintiff failed to respond to the City's
arguments and support the legal adequacy of its claims,
Counts 4, 5, 6, and 7 are considered abandoned and therefore
are dismissed.”); Collopy v. Dynamic Recovery
Solutions, LLC, 16 C 6777, 2017 WL 1321118, at *1 (N.D.
Ill. Apr. 4, 2017) (“[B]ecause [the plaintiff] abandons
her state law claim in her response to the motion to dismiss,
the Court grants Defendants' motion to dismiss the ICFA
Count I, II and III: 42 U.S.C. §1983-Failure to Provide
Medical Care; Due Process-Deliberate Indifference; Due
Process-State Created Danger
court deals with these three counts together, since only the
theory stated in relation to Count III seems applicable to
the facts alleged in the complaint, but that theory appears
to have a chance of prevailing only with respect to the claim
alleged in Count I (failure to provide medical care), not the
claims alleged in Counts II and III, ostensibly addressed to
KIPP's allegedly unsafe playground equipment (although
only the complaint, not the briefs, focuses on the playground
equipment in Counts II and III). The court must still wade
into the quagmire created by the complaint and briefing,
however, for “[a]n imperfect statement of a legal
theory [in a complaint] is not grounds for dismissal”
under Rule 12(b)(6). Armstrong v. Krupiczowicz, 874
F.3d 1004, 1009 (7th Cir. 2017) (citing Johnson v. City
of Shelby, 135 S.Ct. 346, 346 (2014)). Down the rabbit
hole we go.
No “Special Relationship” Between School