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Fonza v. Chicago Public Schools District #299

United States District Court, N.D. Illinois, Eastern Division

January 9, 2018

TYANNE FONZA as next friend of T.G., a minor, Plaintiff,


          Joan B. Gottschall, United States District Judge

         Plaintiff Tyanne Fonza, as next friend of her daughter T.G. (born in 2005[1]), 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.

         The 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.

         I. RULE 12(b)(6) STANDARD

         “To 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.'”[2] 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)).


         The 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.

         On May 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.[3] 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.

         III. ANALYSIS

         The 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.

         A. Monell Liability of KIPP and the Board of Education

         Two 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.

         Plaintiff 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 claim.”).

         B. Count I, II and III: 42 U.S.C. §1983-Failure to Provide Medical Care; Due Process-Deliberate Indifference; Due Process-State Created Danger

         The 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.

         1. No “Special Relationship” Between School ...

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