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Brookman v. Reed-Custer Community Unit

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

September 27, 2019

RICHARD & ALLISON BROOKMAN, as parents and next friends of A.B., a minor, Plaintiffs,
v.
REED-CUSTER COMMUNITY UNIT, SCHOOL DISTRICT 255-U; MARK WOLF, individually and as an agent of District 255-U; MIKE MATHIEU, individually and as an agent of District 255-U; BUTCH STAFFORD, individually and as an agent of District 255-U; TIM RICKETTS, individually and as an agent of District 255-U; MICHAEL SMITH, individually and as an agent of District 255-U; and CHUCK ANDERSON, individually and as an agent of District 255-U, Defendants.

          OPINION AND ORDER

          JOAN H. LEFKOW U.S. DISTRICT JUDGE.

         Richard and Allison Brookman, parents of minor A.B., have sued Reed-Custer Community Unit School District 255-U (“the District”) and several of its employees after A.B. was sexually assaulted during a 2017 summer football camp and bullied after reporting his assault. All defendants have moved to dismiss the complaint under Rule 12(b)(6) and under several theories of immunity. (Dkt. 9.) The motion is granted in part and denied in part.[1]

         BACKGROUND[2]

         In Summer 2017, as A.B. was about to begin his first year of high school at Reed-Custer High School (“Reed-Custer”), he attended the Reed-Custer football camp. (Id. ¶ 36–38, 40.) Two upperclassmen began harassing A.B., threatening to rape his mother and sister. (Id. ¶¶ 42–43.) When A.B. told them to stop, they escalated the threats, telling him they would hold him down and force him to watch. (Id. ¶ 44.)

         Later that day, the same upperclassmen asked if A.B. “wanted smoke.” (Id. ¶ 45.) When A.B. replied, “no, ” one of the upperclassmen grabbed A.B. by the neck and bent him over at the waist while the other attempted to insert his thumb into A.B.’s anus. (Id. ¶ 46.) A month later, the two assailants and two more upperclassmen attempted to assault A.B. again, this time in assistant coach Mike Mathieu’s presence. (Id. ¶ 49.) Though no school employees came to his aid, he was able to escape. (Id.) Ten days after that, the same four upperclassmen asked A.B. again if he wanted “smoke.” One of the players then slapped A.B. in the face twice and tackled him to the ground. (Id. ¶ 52.) A second player, who weighed about 250 pounds, kneeled on A.B.’s chest and pinned his arms to the ground. (Id. ¶ 53.) The first player then kicked A.B.’s ribs and torso. (Id. ¶ 56.) A third held A.B.’s legs while a fourth pulled A.B.’s shorts down and repeatedly attempted to put a finger into A.B.’s anus. (Id. ¶ 57.)

         This assault occurred in front of dozens of football players, and A.B. screamed for help throughout, but no Reed-Custer staff came to A.B.’s aid. (Id. ¶ 58.)[3] One of the assailants picked A.B. off the ground and forced him to walk past the coaches (head coach Mark Wolf and assistant coach Mathieu) to collect his t-shirt and shorts, but the coaches still did not intervene. (Id. ¶ 61.) A.B. then collapsed on the ground in tears, in significant pain and having trouble breathing. (Id. ¶ 62.) Wolf ordered the team to huddle to end practice and, seeing A.B. on the ground, yelled at him to get up and join the group. (Id. ¶ 63.) Another coach-unnamed and not a defendant here-finally asked if A.B. was all right, but one of the assailants told the coach that A.B. was fine and that they were only roughhousing. (Id. ¶ 64.) When A.B.’s mother picked A.B. up from camp, she took him immediately to the hospital where he was treated for a bruised sternum and ribs. (Id. ¶ 68.)

         The Brookmans allege that “giving smoke” was a Reed-Custer football hazing ritual that sometimes took place in the presence of the coaching staff. (Id. ¶¶ 19–20, 23.) Shortly after assaulting A.B., the upperclassmen asked coaches Wolf and Mathieu if they “wanted smoke, ” and the coaches laughed, suggesting that they understood the meaning. (Id. ¶ 47.) These assaults also formed part of a broader culture of abuse on the football team; Wolf, for instance, encouraged players during pre-game pep talks to “unleash their inner rapist” and “rip off” their opponents’ genitals. (Id. ¶ 24.)

         The Brookmans also allege that the District, principal Tim Ricketts, and athletic director Chuck Anderson knew or should have known of this abuse. (Id. ¶¶ 16, 18, 25.) District policy prohibits hazing, bullying, and assault, and requires employees to report any such behavior. (Id. ¶¶ 28–35.) Nonetheless, after Ricketts asked Anderson to investigate the incident, the four assailants received either modest or no discipline. (Id. ¶ 76–77.) The football coaches were not disciplined at all, and they took no corrective action to address hazing after these assaults. (Id. ¶¶ 78–79.) The school did not contact the local police department or the Illinois Department of Children and Family Services. (Id. ¶ 80.) Indeed, when Allison Brookman contacted the police, Wolf encouraged football players who witnessed the assault to “get their story straight.” (Id. ¶ 81.)

         Other school staff started a campaign to harass and discredit A.B. when the Fall semester started. Butch Stafford, A.B.’s gym and history teacher and a close friend of Wolf’s, regularly marked A.B. tardy when he was on time, which resulted in A.B.’s receiving detentions. (Id. ¶¶ 84–86.) Stafford once grabbed A.B. by the shirt, brought his arm back as if to punch him, and threatened to give A.B. a black eye. (Id. ¶ 85.) Many students threatened A.B. and encouraged him to commit suicide. (Id. ¶ 88.) When A.B. reported this bullying to Ricketts and assistant principal Michael Smith, neither would discipline any students. (Id. ¶ 89–90.) Despite Ricketts and Smith’s assurances to the Brookmans that they would address hazing, they took no action, and A.B. continued to experience bullying and hazing. (Id. ¶ 93–96.) A.B. was eventually diagnosed with major depression and post-traumatic stress disorder. (Id. ¶ 97.)

         The Brookmans, individually and on A.B.’s behalf, sued Reed-Custer and some of its staff, alleging (1) willful and wanton conduct; (2) intentional infliction of emotional distress; (3) § 1983 – denial of substantive due process; (4) § 1983 – denial of equal protection (class of one); and (5) § 1983 – Monell claim against the District.

         LEGAL STANDARD

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges a complaint for failure to state a claim upon which relief may be granted. In ruling on a Rule 12(b)(6) motion, the court accepts as true all well-pleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s favor. Active Disposal, 635 F.3d at 886; Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim’s basis but must also establish that the requested relief is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). The allegations in the complaint must be “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. At the same time, the plaintiff need not plead legal theories; it is the facts that count. Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); see also Johnson v. City of Shelby, 574 U.S. 10, 10, 135 S.Ct. 346 (2014) (per curiam) (“Federal pleading rules call for a short and plain statement of the claim showing the pleader is entitled to relief; they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” (citation omitted)); McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011) (citing Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)) (applying Twombly and Iqbal standards to Monell claims).

         ANALYSIS

         I. Willful and Wanton Conduct (Count I)

         A. Timeliness

         The Brookmans sue “individually and as parents and next friends of [A.B.]” (Dkt. 1 at 18, 20.) Illinois law requires that claims against municipal entities and their employees be filed within one year. 745 Ill. Comp. Stat. 10/8-101(a). But when the claim relates to childhood sexual abuse, see 735 Ill. Comp. Stat. 5/13-202.2(b), a twenty-year statute of limitations applies, even when the defendants are municipal entities or employees. Doe v. Hinsdale High Sch. Dist. 86, 905 N.E.2d 343, 348–49, 388 Ill.App.3d 995 (2009). The Central District has held that the longer limitations period applies to claims brought on the victim’s behalf, but the shorter period applies the victim’s parents’ individual claims. Doe ex rel. Doe v. White, 627 F.Supp.2d 905, 915–17 (C.D. Ill. 2009). The court finds that reasoning persuasive and agrees that “§ 202.2 . . . is intended to apply only to actions brought by or on behalf of the person abused, not persons claiming derivative injury from the child abuse of someone else.” Id. at 915. The Brookmans therefore had until July 2018 to file individual claims for A.B.’s sexual assault but did not file until November 2018. Count I is therefore dismissed as to the Brookmans’ individual claims.

         B. Discretionary Immunity

         Defendants argue that they are entitled to discretionary immunity under 745 Ill. Comp. Stat. 10/2-201. “[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 in determining policy when acting in the exercise of such discretion even though abused.” Id. This immunizes municipal employees from liability for their discretionary acts, but not ministerial ones. Malinski v. Grayslake Cmty. High Sch. Dist. 127, 16 N.E.3d 915, 918, 2014 IL App. (2d) 130685, ¶ 8. “[D]iscretionary acts are those that are unique to a particular public office, whereas ministerial acts are those that a person performs on a given set of facts, in a prescribed manner, in accordance with a mandate of legal authority, and without reference to the official’s discretion as to the propriety of that act.” Id. (citation omitted). Moreover, to invoke this immunity, the challenged action also must involve policymaking. Harinek v. 161 N. Clark St. Ltd. Partners,692 N.E.2d 1177, 1181, 181 Ill.2d 335 (1998). Policymaking entails ‚Äúthose judgments which require the [defendant] to balance competing ...


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