Hodges v. Valley View Community Unit School District 365U et al

Filing 92

WRITTEN Opinion entered by the Honorable Ronald A. Guzman on 12/21/2012: For the reasons set forth in this order, the Court grants in part and denies in part the Valley View defendants' motion to dismiss the second amended complaint 63 . Count IV is dismissed with prejudice, Counts I, III and V are dismissed without prejudice and Counts II and VI stand. Plaintiff has fourteen days from the date of this order to amend Counts I, III and V to state viable claims, if he can do so and comply with Rule 11. If plaintiff fails to amend the claims in that time, the Court will dismiss them with prejudice. Mailed notice (cjg, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Ronald A. Guzman

CASE NUMBER

11 C 8418

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

12/21/2012

Devon Hodges vs. Valley View Community Unit School District 356U, et al.

DOCKET ENTRY TEXT

For the reasons set forth in this order, the Court grants in part and denies in part the Valley View defendants’
motion to dismiss the second amended complaint[63]. Count IV is dismissed with prejudice, Counts I, III and
V are dismissed without prejudice and Counts II and VI stand. Plaintiff has fourteen days from the date of this
order to amend Counts I, III and V to state viable claims, if he can do so and comply with Rule 11. If plaintiff
fails to amend the claims in that time, the Court will dismiss them with prejudice.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
In November 2009, plaintiff moved from the attendance area of Romeoville High School (“RHS”), where
he was a star of the basketball team, to the attendance area of Bolingbrook High School (“BHS”), both of which
are in defendant Valley View Community Unit School District 365U. (2d Am. Compl. ¶ 9.) Thereafter, he
alleges, Valley View staff members James Boudoris, Jeffrey Bambule, Alec Anderson, Robert Brost, Paul
Gammichia, Art Pahl and James Mitchem, Jr. falsely accused him of residency violations, spread false rumors
about him, sabotaged his meetings with college recruiters and otherwise harassed him for leaving the RHS
basketball team. In his second amended complaint, plaintiff asserts 42 U.S.C. § 1983 claims against these
defendants, and two others who are not parties to this motion, for their alleged violations of his constitutional
rights and an indemnification claim against Valley View pursuant to the Illinois Tort Immunity Act. The Valley
View defendants ask the Court to dismiss all of the claims pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(6).
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual allegations of the
complaint, drawing all reasonable inferences in plaintiff’s favor. Hecker v. Deere & Co., 556 F.3d 575, 580 (7th
Cir. 2009). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations” but must contain “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
In Count I of the second amended complaint, plaintiff asserts a First Amendment retaliation claim against
the individual Valley View defendants. To state a viable claim, plaintiff must allege that he engaged in
constitutionally protected speech, defendants took adverse action against him and their action was motivated, at
least in part, by plaintiff’s speech. Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008). The first element
is lacking here because plaintiff alleges that defendants’ retaliation was prompted by his mother’s speech, not
his own. (See, e.g., 2d Am. Compl. ¶¶ 18, 21, 30, 35, 39, 45-47, 55-57, 60-62.) Count I is, therefore, dismissed.
11C8418 Devon Hodges vs. Valley View Community Unit School District 356U, et al.

Page 1 of 3

STATEMENT
In Count II, plaintiff asserts an equal protection class of one claim against the individual defendants. Such
a claim requires allegations that defendants “intentionally treated [plaintiff] differently from others similarly
situated and that there is no rational basis for the difference in treatment.”1 United States v. Moore, 543 F.3d 891,
896 (7th Cir. 2008) (quotation omitted). Plaintiff alleges that, unlike other students whose families move within
the District during a school year, defendants tried to harass him into continuing to attend RHS. (2d Am. Compl.
¶ 9.) He does not, however, identify a similarly situated student who was treated differently, which defendants
contend LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937 (7th Cir. 2010) requires him to do. See id.
at 942 (“[D]ismissal at the pleading stage was appropriate because LaBella failed to allege facts tending to show
that it was similarly situated to any of the comparators.”). After LaBella, however, the Seventh Circuit ruled
that in “[an] official harassment case,” like this one, “forcing the plaintiff to name a person not so severely
harassed serves no . . . purpose (and in any event certainly is not necessary in the complaint itself).” Geinosky
v. City of Chi., 675 F.3d 743, 746 (7th Cir. 2012). Thus, plaintiff’s failure to identify a similarly situated person
is not a basis for dismissing this claim.
Nor is qualified immunity, which shields public officials from liability for conduct that “does not violate
clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). It was clearly established in 2009 that the equal protection clause
forbids government officials from “intentionally treat[ing] [someone] differently from others similarly situated
. . . [without a] rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam). Therefore, assuming, as we must, that plaintiff’s allegations are true, qualified immunity
is not a basis for dismissal.
In Count III, plaintiff alleges that defendants’ conduct violated his substantive due process rights. To
state a viable claim, plaintiff must specifically identify the fundamental liberty interest that he contends
defendants have violated. Kahn v. Gallitano, 180 F.3d 829, 833 (7th Cir. 1999). Such interests include “the
specific freedoms protected by the Bill of Rights [and] . . . the rights to marry, to have children, to direct the
education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity and to
abortion.” Washington v. Gluckberg, 521 U.S. 702, 720 (1997) (citations omitted). Because plaintiff does not
identify any such interest, the Court dismisses Count III.
In Count IV, plaintiff seeks to hold the Board liable for the equal protection violation alleged in Count
II.2 To do so, plaintiff must allege that the constitutional violation resulted from, among other things, action by
person with final policymaking authority. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694
(1978); McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir. 2000). According to plaintiff, the final
policymaker in this case is defendant Mitchem, the District Superintendent.
State law determines whether an official has final policymaking authority, which “may be granted directly
by statute or delegated . . . by an[other] official.” Kujawski v. Bd. of Comm’rs of Bartholomew Cnty., 183 F.3d
734, 737 (7th Cir. 1999). However, “[t]he fact that a[n] official . . . has discretion in the exercise of particular
functions does not, without more, give rise to municipal liability based on an exercise of that discretion.”
Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 675 (7th Cir. 2009) (quotation omitted). Rather, the official
must have the authority to set, not just the responsibility to execute, policy for the contested issue. Id. at 675-76.
Illinois law vests the Valley View School Board with the power to: (1) “assign pupils to the several
schools in the district”; and (2) “adopt and enforce all necessary rules for the management and government of
the public schools of their district.” See 105 Ill. Comp. Stat. 5/10-20.5, 10-22.5. The Board’s rules require the
Board “[to] review and approve the school attendance boundaries for all students residing in the District” but give
the Superintendent discretion to permit a student whose family moves from one attendance area to another during
11C8418 Devon Hodges vs. Valley View Community Unit School District 356U, et al.

Page 2 of 3

STATEMENT
the school year “to complete the current school year at the first attendance center.” See Board Policy § 7:30,
available at http://www.vvsd.org/docs/pdf/boe/policy/section7/7.30%20Student%20Assignmentx.pdf. In other
words, though the Superintendent has some discretion in executing it, the Board is the final policymaker with
respect to student/school assignments. Thus, any action taken or approved by Mitchem with respect plaintiff’s
transfer is not, as a matter of law, a basis for holding the Valley View Board liable for the alleged equal
protection violation.
In Count V, plaintiff alleges that the Valley View defendants conspired with the two other defendants
named in this suit, the Illinois High School Association (“IHSA”)3 and its Executive Director Marty Hickman,
to deprive him of his equal protection rights. To state a § 1983 conspiracy claim, plaintiff must allege that: “(1)
a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional
rights; and (2) those individual(s) were willful participants in joint activity with the State or its agents.” Fries
v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (quotations, alterations and citations omitted). Though plaintiff
alleges in great detail the correspondence among his mother, the Valley View defendants and the IHSA
defendants concerning plaintiff’s residence in the attendance area of, and eligibility to pay basketball for, BHS,
they do not support the inference that the private and public actor defendants agreed to deprive plaintiff of his
equal protection rights. (See 2d Am. Compl. ¶¶ 37, 41, 67, 69-74, 77, 83-89, 92-93.) On the contrary, the only
inference that these allegations support is that certain Valley View defendants refused to press and/or attempted
to defeat plaintiff’s case with the IHSA, but when plaintiff’s mother took action on her own, the IHSA ruled that
plaintiff was eligible to play for BHS. (See id.) Accordingly, plaintiff has not stated a viable conspiracy claim.
Finally, defendants seek to have Count VI, an indemnification claim against Valley View pursuant to
section 9-102 of the Illinois Tort Immunity Act, dismissed because that section “does not create an independent
cause of action.” (Mem. Law Supp. Mot. Dismiss 2d Am. Compl. at 17.) The Seventh Circuit disagrees. See
Wilson v. City of Chic., 120 F.3d 681, 685 (7th Cir. 1997) (stating that a section 9-102 claim against the City of
Chicago was, “[i]n effect, [a request that] the court . . . enter a declaratory judgment against the City, a typical
move when an insurer (as the City in effect is of the judgment against Burge) is in the picture, and one not
invalidated by its conditional character.”). Thus, Count VI stands.
1.Plaintiff must also allege that each defendant was “personally responsible for the deprivation
of the right at the root of a § 1983 claim,” but defendants do not argue that this element is
lacking. See Backes v. Vill. of Peoria Heights, 662 F.3d 866, 869 (7th Cir. 2011) (quotation
omitted).
2.Plaintiff also seeks to hold Valley View liable for the constitutional violations alleged in
Counts I and III but, because neither of those counts states a viable claim, the Court construes
Count IV solely as an equal protection claim.
3.The IHSA is “a not-profit organization . . . . [that] is not funded . . . or administered by the
government in the state of Illinois.” See http://www.ihsa.org/AbouttheIHSA.aspx.

11C8418 Devon Hodges vs. Valley View Community Unit School District 356U, et al.

Page 3 of 3