Doe et al v. Champaign Community Unit 4 School District et al

Filing 27

OPINION: See written Opinion. The Report and Recommendation (d/e 20 ) is REJECTED IN PART and ADOPTED IN PART. Plaintiffs' Objection and Appeal from Report and Recommendation of Magistrate Judge (d/e 21 ) is ALLOWED IN PART and DENIED IN PART. Defendants' Partial Objections to Report and Recommendation (d/e 23 ) is ALLOWED IN PART and DENIED IN PART. Defendants' Motion to Dismiss (d/e 12 ) is ALLOWED IN PART and DENIED IN PART. Any amended complaint shall be filed by July 20, 2012. Defendants shall answer or otherwise plead by August 13, 2012. This case is REFERRED back to Judge Cudmore for further pre-trial proceedings. Entered by Judge Richard Mills on 6/22/2012. (MJ, ilcd)

E-FILED

Friday, 22 June, 2012 04:59:21 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOHN DOE and JANE DOE, as )
Parents and Next Friends of
D.M., a Minor,

)
)
)
Plaintiffs,
)
)
v.
)
)
CHAMPAIGN COMMUNITY UNIT )
4 SCHOOL DISTRICT, et al.,
)
)
Defendants.
)

No. 11-CV-3355

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter is before the Court on the Report and
Recommendation (d/e 20) entered by Magistrate Judge Byron G.
Cudmore on February 24, 2012. Plaintiffs have filed an Objection and
Appeal from Report and Recommendation of Magistrate Judge
(Plaintiffs’ Objections) (d/e 21) and Defendants have filed their Partial
Objections to Report and Recommendation (Defendants’ Objections)
(d/e 23). See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Page 1 of 25

In the Report and Recommendation, Judge Cudmore recommends
allowing in part and denying in part Defendants’ Motion to Dismiss
Plaintiffs’ Complaint (Motion to Dismiss) (d/e 12). This Court reviews
de novo any part of the Report and Recommendation that has been
properly objected to. 28 U.S.C. § 636(b)(1)(C). For the reasons set
forth below, the Court adopts in part and rejects in part Judge Cudmore’s
Report and Recommendation.
BACKGROUND
On September 20, 2011, Plaintiffs filed a 12-count Complaint (d/e
1) against the following Defendants: Champaign Community Unit 4
School District (District); Rhonda Howard1, in her individual and official
capacities; Arthur Culver2, in his individual and official capacities; and
Sue Grey, Stig Lanesskog, Tom Lockman, Greg Novak, Jamar Brown,
Kristine Chalifoux, and David Tomlinson in their official capacities.3

1

Howard is the principal of Academic Academy.

2

Culver is the superintendent of the District.

Grey, Lanesskog, Lockman, Novak, Brown, Chalifoux, and Tomlinson are
members of the District’s Board of Education.
3

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The general allegations of the Complaint are as follows.
On January 21, 2011, Howard entered D.M.’s classroom prior to
D.M. arriving at school. Howard detected the smell of cannabis and then
left the classroom. Later, D.M. arrived at school and took his seat in the
classroom, which had about 30 students in it at the time. D.M. was one
of two African-American students in that classroom.
Howard entered the classroom, removed D.M. from the classroom,
and took D.M. to her office where she searched D.M.’s coat and
backpack. Howard then required D.M. to remove his shirt, unbutton his
pants, remove his belt, remove his shoes, and partially disrobe.4 Howard
did not find any contraband on D.M. during the search. Howard did not
contact D.M.’s parents prior to conducting the search. D.M. then
returned to his classroom. Howard did not conduct a search of any other
student in the classroom or of any other student’s belongings.
According to the Complaint, Howard did not have reasonable cause
to conduct this “strip search” of D.M. Howard’s actions were taken

4

The Complaint refers to this as a “strip search.”
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pursuant to her position as Principal, pursuant to the policies of and
direction of Culver and the Board, and under the supervision of Culver
and the Board.
Plaintiffs allege the Board and Culver had a policy, procedure, or
practice and custom of failing to adequately train and supervise principals
and personnel on the appropriate and correct procedures for
apprehension, contacting parents of minors, conducting searches,
avoiding profiling of students on the basis of race, and preventing
violations of the rights of students.
The parties are familiar with the specific allegations in each of the
12 Counts of Plaintiff’s Complaint, and this information is fully set out
in Judge Cudmore’s Report and Recommendation. Because the Parties
only object to Judge Cudmore’s Report and Recommendation with
respect to certain counts of the Complaint, the Court will recite the
specific allegations of each count in the “Analysis” section of this Opinion
and then only as necessary to address the Parties’ specific objections.
B. Defendants’ Motion To Dismiss Pursuant To Rule 12(b)(6)

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On November 14, 2011, Defendants filed their Motion to Dismiss
and a Memorandum of Law in Support of Defendants’ Motion to
Dismiss Plaintiffs’ Complaint (Defendants’ Memorandum in Support).
In the Motion to Dismiss, Defendants contended that all 12 counts of
the Complaint should be dismissed for failure to state a claim upon
which relief may be granted. Specifically, Defendants argued as follows:
(1) Counts I through XII should be dismissed because the alleged search
of D.M. was reasonable in scope and justified by the compelling interest
of safeguarding students and the educational environment from illegal
drugs; (2) Counts I through VI, and Count XII alleging claims under §§
1981 and 1983 should be dismissed because Plaintiffs failed to plead
facts that would establish liability against the Board or Howard and
Culver in their official capacities; (3) Counts II, IV, VI, and XII alleging
claims under § 1981 should be dismissed because Plaintiffs fail to allege
they were discriminated against in the making or enforcement of a
contract; (4) Counts V and XI should be dismissed because they fail to
state a claim for either failure to protect or failure to train; (5) the

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individual capacity claims against Howard in Counts I and II are barred
by qualified immunity ; (6) the state law claim against Howard for
intentional infliction of emotional distress in Count VII should be
dismissed for failure to state a claim and is barred by the Illinois Local
Governmental and Governmental Employees Tort Immunity Act; and (7)
Counts VIII through X should be dismissed because there is not a
recognized claim under the Illinois Constitution for an unreasonable
search where the student has a remedy under federal law and Illinois tort
law.
C. Judge Cudmore’s Report And Recommendation
And The Parties’ Objections Thereto
As stated, Judge Cudmore recommends that Defendants’ Motion to
Dismiss be allowed in part and denied in part. As is relevant here, Judge
Cudmore recommends that the Motion to Dismiss be denied with respect
to: (1) the individual capacity claims against Principal Howard in Counts
I and II; (2) the individual and official capacity claims against
Superintendent Culver in Count V for failure to train and supervise; and
(3)the official capacity claim against the Board in count XI for failure to
Page 6 of 25

train and supervise. Judge Cudmore recommends that the remainder of
the Motion to Dismiss be allowed.
As stated, both Parties have objected to parts of Judge Cudmore’s
Report and Recommendation. Plaintiffs object to Judge Cudmore’s
recommendation that the official capacity claims against Principal
Howard in Counts I and II be dismissed and that the individual and
official capacity claims against Culver in Counts III and IV be dismissed.
Plaintiffs make no argument other than to ask that they be given leave to
replead these Counts. Finally, Plaintiffs object to Judge Cudmore’s
recommendation that Count VII be dismissed because Principal Howard
is immune under 745 ILCS 10/2-201.
Defendants object to the recommendation that this Court deny the
request to dismiss Counts I and II against Principal Howard in her
individual capacity. Defendants also object to the recommendation to
not dismiss Counts V and XI against Culver and the member of the
Board of Education.
ANALYSIS

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Under Rule 12(b)(6), dismissal is proper where a complaint fails to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
To state a claim upon which relief can be granted, a complaint must
provide a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement
must be sufficient to provide the defendant with “fair notice” of the claim
and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964, 167 L. Ed. 2d 929, 940 (2007). This means that (1) “the
complaint must describe the claim in sufficient detail to give the
defendant ‘fair notice of what the . . . claim is and the grounds upon
which it rests” and (2) its allegations must plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a “speculative
level.” EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th
Cir. 2007). While detailed factual allegations are not needed, a
“formulaic recitation of a cause of action's elements will not do.”
Twombly, 550 U.S. at 555, 127 S. Ct. at 1965, 167 L. Ed. 2d at 940.

Page 8 of 25

Conclusory allegations are “not entitled to be assumed true.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1951, 173 L. Ed. 2d 868, 885 (2009) (citing
Twombly, 550 U.S. 544 (2007)). “In ruling on Rule 12(b)(6) motions,
the court must treat all well-pleaded allegations as true and draw all
inferences in favor of the non-moving party.” In re marchFIRST Inc.,
589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo, 526 F.3d at 1081).
A. Defendants’ Objections
1. Counts I and II
Counts I and II allege claims under 42 U.S.C. §§ 1983 and 1981,
respectively, against Principal Howard in both her individual and official
capacity. Defendants object to the conclusion in the Report and
Recommendation that the allegations in Counts I and II state a claim
against Principal Howard in her individual capacity. Specifically,
Defendants contend that Report and Recommendation errs in concluding
that, based on the facts pled, Principal Howard lacked reasonable
suspicion to search D.M. With respect to Count II, Defendants do not
object to the conclusion that § 1981 authorizes a claim for denial of

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equal benefits under the law for racially discriminatory illegal searches
and seizures.
In their argument regarding the reasonableness of the search,
Defendants cite only one case, Morse v. Frederick, 551 U.S. 393, 407
(2007). Defendants cite Morse for the proposition that the serious
nature of the infraction at issue justified the search at its inception.
Our Supreme Court has “applied a standard of reasonable suspicion
to determine the legality of a school administrator’s search of a student.”
Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 129 S.Ct.
2633, 2639 (2009) (citing New Jersey v. T.L.O., 469 U.S. 325, 342, 105
S.Ct. 733, 743-44 (1985)). The analysis of the reasonableness of the
search is twofold: first, the court must determine whether the action was
justified at its inception; second, the court must determine whether the
search was conducted in a manner that was reasonably related in scope to
the circumstances which justified the search in the first place. Long v.
Turner, 664 F. Supp. 2d 930, 934 (S.D. Ind. 2009) (citing T.L.O., 469
U.S. at 341-42). The “reasonable suspicion” standard for school searches

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has been “described as a moderate chance of finding evidence of
wrongdoing.” Safford, 129 S. Ct. at 2639.
Counts I and II are similar in that they allege that Principal
Howard smelled cannabis in D.M.’s classroom prior to D.M.’s arrival at
school on the day in question. Principal Howard then left the classroom,
after which D.M. entered and took his seat in the classroom. Principal
Howard returned and removed D.M., one of only two African-American
students in the class of thirty, from the classroom. She searched his coat
and backpack, and then required him to remove his shirt, unbutton his
pants, remove his belt and shoes, and partially disrobe. According to the
Complaint, Principal Howard had no reason to focus on D.M. The
Court agrees with the conclusion in the Report and Recommendation
that the allegations in Count I sufficiently allege that the facts known to
Principal Howard when she initiated the search did not present a
moderate chance of finding evidence of wrongdoing. As alleged, the facts
did not present Principal Howard with a basis to believe that a search of
D.M. presented a moderate chance of finding evidence of wrongdoing

Page 11 of 25

because D.M. was not even present in the classroom when Principal
Howard first smelled the cannabis. Therefore, Defendants’ argument
that Count I against Principal Howard in her individual capacity did not
state a claim because it did not allege an unreasonable search is not welltaken and the Court will accept the recommendation that the Motion to
Dismiss this claim be denied.
Defendants’ argument as to why Count II did not state a claim
against Principal Howard in her individual capacity is the same as their
argument with respect to Count I, i.e., that Plaintiffs did not adequately
allege the search was unreasonable. Therefore, the Court will accept the
recommendation that the Motion to Dismiss with respect to the
individual capacity claim in Count II be denied.
2. Counts V and XI
Counts V and XI allege the same claims under § 1983 against
Superintendent Culver and the Board respectively. Specifically, these
Counts allege that both Culver and the Board had
a policy or procedure or practice and custom of tolerating or
acquiescing in its personnel inadequate investigation, failing
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to adequately supervise and discipline its personnel, or failing
to train its personnel on appropriate and proper methods of
investigation, recognition, or correct procedures for
apprehension, contacting parents or searches, and preventing
violations of students’ rights.
These Counts further alleged that the policies and procedures that
resulted in a violation of D.M.’s rights included: (1) a custom or practice
of allowing school personnel to create dangers to students without taking
appropriate remedial measures to protect them; (2) failing to educate and
train its school personnel in proper apprehension, protection or custody,
recognition, investigative or safety procedures, searches, and contacting
parents; and (3) failing to train and educate its school personnel on
proper methods to avoid creating dangers and failing to protect students.
Finally, these counts allege both Superintendent Culver and the Board
“intentionally, knowingly, recklessly or with deliberate indifference
promulgated or acquiesced in the aforementioned policies, procedure,
practice or customs that caused, aided or failed to prevent the violations
and deprivations of D.M.’s rights.” Defendants argue the Report and
Recommendation errs in concluding that Plaintiffs “boilerplate”

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allegations state a § 1983 claim for failure to train.
“An allegation of a ‘failure to train’ is available only in limited
circumstances.” Cornfield v. Consol. High Sch. Dist., 991 F.2d 1316,
1327 (7th Cir. 1993). To prevail on such a claim, a plaintiff must show
that a school district’s “failure to train its employees in a relevant respect
evidences a ‘deliberate indifference’” to the rights of students. Id.
(quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). In S.J v.
Perspectives Charter Sch., 685 F. Supp. 2d 847 (N.D. Ill. 2010), the
court dismissed a failure to train claim in a case similar to the case sub
judice. The S.J. court discussed the Seventh Circuit’s holding in
Cornfield and stated the following:
S.J. alleges that “said failure to train was done with deliberate
indifference,” arguing that “[t]he need for training employees
on the legality of student strip searches is so obvious, and the
inadequacy is so extremely likely to result in a violation of
constitutional rights, that a failure to train is evidence of
deliberate indifference to the rights of students.” See
Response Br. at p. 6-7. The Seventh Circuit rejected this
argument in Cornfield, however, finding that “[g]iven the
nebulous standards governing student searches, school
districts and school district administrators cannot be held
accountable on this [failure to train] ground because the
particular constitutional duty at issue is not clear.” 991 F.2d
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at 1327. In Cornfield, the plaintiff “[did] not state[ ] a claim
that establishes deliberate indifference by District 230”
merely by citing two reported incidents of strip searches, and
S.J. only cites one incident. See Cornfield, 991 F.2d at 1327.
S.J., 685 F. Supp. 2d at 858. See also Ibanez v. Velasco, 1997 WL
467286, at *3 (N.D. Ill. 1997) (“plaintiff’s allegations of constitutional
violations that arise out of only a single incident are insufficient to show
deliberate indifference by [the defendant] to potential constitutional
violations in the absence of any allegations of previous such incidents”).
Likewise, Plaintiffs in this case have failed to state a claim that
establishes deliberate indifference by citing only this single incident of a
constitutional violation. Therefore, the Court will reject the
recommendation that the failure to train and supervise claims in Counts
V and XI not be dismissed.
3. Qualified Immunity
Defendants allege that the Report and Recommendation errs by not
reaching a finding as to whether Superintendent Culver is entitled to
qualified immunity on the individual capacity claim in Count V and that
Principal Howard is not entitled to qualified immunity in Counts I and
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II. Given that the failure to train claim in Count V is dismissed, it is not
necessary to address qualified immunity in relation to Count V.
The Court now turns to the issue of qualified immunity for
Principal Howard on Counts I and II. “Governmental actors performing
discretionary functions are entitled to qualified immunity and are
‘shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Sallenger v. Oakes, 473 F.3d
731, 739 (7th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S. Ct. 2727 (1982)). “A school official searching a student is
‘entitled to qualified immunity where clearly established law does not
show that the search violated the Fourth Amendment.’” Safford, 557
U.S. 364, 129 S. Ct. at 2643 (quoting Pearson v. Callahan, 555 U.S.
223, 243-44. 129 S. Ct. 808, 822 (2009)).
As stated, the allegations in Counts I and II are that Principal
Howard smelled marijuana in D.M.’s classroom, but D.M. was not there
at the time. Principal Howard then came back to the classroom after

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D.M. had arrived and, with no reason to search D.M., pulled him out of
class and searched his person and his backpack. Defendants argue that
Principal Howard is entitled to qualified immunity because there was no
fair warning that the alleged search was unconstitutional. Specifically,
Defendants argue that the suspicion and scope of a search are
interrelated–that “the constitutionality of school searches involves an
assessment of whether the content of the suspicion matched the degree of
intrusion,” and that the minimal facts pled establish particularized
suspicion that D.M. possessed illegal drugs. According to Defendants, in
light of the grave nature of the suspicion and the relatively minimal
nature of the intrusion, it was sufficient that Principal Howard knew
illegal drugs had been in D.M.’s classroom to search him.
Defendants’ argument ignores the fact that, before a student may
be searched by school personnel, the school official must have reasonable
suspicion, or a moderate chance of finding wrongdoing. See Safford
Unified Sch. Dist. No. 1, 557 U.S. 364, 129 S. Ct. at 2639; T.L.O., 469
U.S. at 342, 105 S. Ct. at 743-44 . When the facts alleged in Counts I

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and II are read in the light most favorable to Plaintiffs, Principal Howard
is not entitled to qualified immunity. Principal Howard was on notice
that she needed reasonable suspicion to search D.M. According to the
Complaint, Principal Howard not did not have reasonable suspicion to
search D.M., but had no reason whatsoever to search D.M. because D.M.
was not even in the classroom when Principal Howard smelled the
marijuana. Read in the light most favorable to Plaintiffs, Principal
Howard is not entitled to dismissal of Counts I and II based on qualified
immunity.
B. Plaintiffs’ Objections
1. Plaintiff is Given Leave to Replead Counts I, II, III, and IV.
The Report and Recommendation recommends that the official
capacity claims against Principal Howard in Counts I and II, and Counts
III and IV against Superintendent Culver in both his individual and
official capacities be dismissed for failure to state a claim. Plaintiffs do
not argue the merits of the conclusions of the Magistrate with respect to
these Counts. Instead, Plaintiffs ask leave to replead. The pleading rules

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favor decisions on the merits rather than technicalities and leave to
amend pleadings should be freely given. Stanard v. Nygren, 658 F.3d
792, 800-01 (7th Cir. 2011). Therefore, the Court will accept the
recommendation that the official capacity claims against Principal
Howard in Counts I and II and both the individual and official capacity
claims against Superintendent Culver in Counts III and IV be dismissed.
However, Plaintiff will be given leave to replead those Counts.
2. Count VII
Plaintiffs also object to the recommendation to dismiss Count VII.
Count VII is a supplemental state law claim against Principal Howard for
intentional infliction of emotional distress. The magistrate recommended
that this Count be dismissed because Principal Howard has absolute
immunity for her actions under 745 ILCS 10/2-201. Section 2-201
states as follows:
Except as otherwise provided by Statute, 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.

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745 ILCS 10/2-201. Plaintiffs’ Objections state that they “do not believe
that the recommendation of the Court makes findings of fact as to
whether or not the actions of Defendant Howard constitutes a ministerial
vis-a-vis discretionary act.” However, the Memorandum of Law makes
no argument regarding whether Principal Howard’s actions were
ministerial versus discretionary in nature. Plaintiffs simply argue that
this Court should defer ruling on this issue “until such time as the Illinois
Court rules with respect to whether or not the absolute immunity
provided by Section 2-201 extends to intentional acts.” Plaintiffs simply
contends that “[t]his Court has previously ruled on that question in Doe
v. White, et al., (DC CD IL, 2009) 627 F. [Supp.] 2d 905, 911-912, 922,
924.”
“De novo review of a magistrate judge's recommendation is required
only for those portions of the recommendation for which particularized
objections, accompanied by legal authority and argument in support of
the objections, are made.” United States ex rel. McCall v. O'Grady, 1995
WL 584333, at *1 (N.D. Ill.1995) (citing 28 U.S.C. 636(b)(1)); see also

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United States v. O’Neill, 52 F. Supp. 2d 954, 967 (E.D. Wis. 1999)
(rejecting, without performing a de novo review, objections that were not
supported by statutory analysis or citation to case law); Radke's Inc. v.
Bastian, 2011 WL 811377, at *1 (C.D. Ill. 2011) (“Perfunctory and
undeveloped arguments may be deemed waived and do not warrant
consideration on the merits by the Court[.]”); United States v. O'Neill,
27 F.Supp.2d 1121, 1126 (E.D. Wis. 1998) (“‘[W]ithout specific
reference to portions of the magistrate's decision and legal discussion on
the objected portion, the district court's duty to make a de novo
determination does not arise[.]’”) (quoting United States v. Molinaro,
683 F. Supp. 205, 211 (E.D. Wis. 1988); Local Rule 72.2(B) (stating
objections to report and recommendation must be specific and
accompanied by memorandum of law in support of those objections);
Local Rule 7.1(B)(1) (stating every motion raising a question of law must
be accompanied by a memorandum of law with supporting authorities
upon which the party relies). While the Court does not have a duty to
conduct de novo review of Plaintiffs’ objection regarding whether

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Principal Howard’s actions were ministerial or discretionary because
Plaintiffs have not supported that objection with argument or authority,
the Court has nonetheless reviewed this claim and agrees with Judge
Cudmore’s conclusion and reasoning in his Report and Recommendation
with respect to this issue.
However, as stated, Plaintiffs also object on the basis that the Court
has assumed incorrectly that the state immunity statute extends to
intentional acts. In In re Chicago Flood Litigation, 176 Ill.2d 179, 196,
680 N.E.2d 265, 273 (Ill. 1997), the Illinois Supreme Court stated as
follows:
The plain language of section 2–201 is unambiguous.
That provision does not contain an immunity exception for
willful and wanton misconduct. Where the legislature has
chosen to limit an immunity to cover only negligence, it has
unambiguously done so. Since the legislature omitted such a
limitation from the plain language of section 2–201, then the
legislature must have intended to immunize liability for both
negligence and willful and wanton misconduct. See Barnett v.
Zion Park Dist., 171 Ill.2d at 391–92, 216 Ill.Dec. 550, 665
N.E.2d 808; West v. Kirkham, 147 Ill.2d 1, 6–7, 167 Ill.Dec.
974, 588 N.E.2d 1104 (1992). Cases holding to the contrary
( e.g., Barth v. Board of Education, 141 Ill. App.3d 266,
272–74, 95 Ill.Dec. 604, 490 N.E.2d 77 (1986) (holding that
section 2–201 did not immunize willful and wanton
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misconduct)) are overruled on this point.
The Illinois Supreme Court has refused to read an exception for willful
and wanton misconduct into provisions of the Tort Immunity Act that
do not contain an exception. See Ries v. City of Chicago, 242 Ill. 2d
205, 222-27, 950 N.E.2d 631, 641-44 (Ill. 2011) (listing and discussing
cases). Because section 2-201 does not contain an exception for willful
and wanton misconduct, Plaintiffs are incorrect that the immunity
provided by that section does not extend to intentional acts. Therefore,
the Court will accept the Recommendation that Count VII be dismissed
based on the immunity provided in Section 2-201.
CONCLUSION
IT IS THEREFORE ORDERED that the Report and
Recommendation (d/e 20) is REJECTED IN PART and ADOPTED IN
PART. Plaintiffs’ Objection and Appeal from Report and
Recommendation of Magistrate Judge (d/e 21) is ALLOWED IN PART
and DENIED IN PART. Plaintiffs are given leave to replead the official
capacity claims in Counts I and II and the allegations in Counts III and

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IV as requested. The remainder of Plaintiffs’ objections to the Report
and Recommendation are overruled. Defendants’ Partial Objections to
Report and Recommendation (d/e 23) is ALLOWED IN PART and
DENIED IN PART. The Court rejects the Magistrate Judge’s
recommendation that Counts V and XI not be dismissed. Counts V and
XI are DISMISSED with leave to replead. The remainder of Defendants’
objections are denied.
Therefore, Defendants’ Motion to Dismiss (d/e 12) is ALLOWED
IN PART and DENIED IN PART. The Motion is denied with respect to
the individual capacity claims against Principal Howard in Counts I and
II. The remainder of the Motion is allowed and all other claims are
dismissed. Plaintiffs are given leave to replead the official capacity claims
against Principal Howard in Counts I and II, the allegations in Counts III
and IV, and the failure to train and supervise claims in Counts V and XI.
Any amended complaint shall be filed by July 20, 2012. Defendants
shall answer or otherwise plead by August 13, 2012. This case is
REFERRED back to Judge Cudmore for further pre-trial proceedings.

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IT IS THEREFORE SO ORDERED.
ENTERED: June 22, 2011.
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATE DISTRICT JUDGE

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