Doe et al v. Grosch et al

Filing 27

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 9/8/2017.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN DOE and JANE DOE, individually and as
parents and next friends of DOE CHILD, a minor,
Plaintiffs,
vs.
JENNY GROSCH and COMMUNITY
CONSOLIDATED SCHOOL DISTRICT 15,
Defendants.

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17 C 1214
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
John Doe and Jane Doe, on their own behalf and as parents of Doe Child (“D.C.”), filed
this suit in the Circuit Court of Cook County, Illinois, against Community Consolidated School
District 15 and Jenny Grosch, the principal of D.C.’s public elementary school, bringing federal
and state law claims arising from his alleged bullying at school. Doc. 1-1. After removing the
suit to federal court, Doc. 1, the Does moved under Federal Rule of Civil Procedure 12(b)(6) to
dismiss the complaint, Doc. 13. The motion is granted as to the federal claims, which are
dismissed without prejudice. If the Does do not attempt to replead those claims, or if they
attempt to do so and fail, the court will exercise its discretion under 28 U.S.C. § 1367(c)(3) to
relinquish supplemental jurisdiction over the state law claims (over which there is no diversity
jurisdiction) and remand them to state court.
Background
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider

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“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in the Does’ brief opposing dismissal, so long as those additional facts “are consistent with
the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The
facts are set forth as favorably to the Does as those materials allow. See Pierce v. Zoetis, Inc.,
818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court
does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610
F.3d 382, 384 (7th Cir. 2010).
D.C., born in 2002, attended public elementary school in a northwest suburb of Chicago
from Summer 2009 to Spring 2014. Doc. 1-1 at ¶¶ 2, 11, 14. D.C. suffers from several
psychological conditions, including Mixed Receptive-Expressive Language Disorder,
Predominantly Inattentive Type Disorder, and Attention Deficit Hyperactivity Disorder. Id. at
¶ 5. A serious manifestation of those conditions is that D.C. takes all statements literally,
regardless of context or tone. Id. at ¶ 8.
D.C. became a target of bullying at school because of his disabilities, as Grosch and the
school’s other faculty and staff were aware. Id. at ¶¶ 9-10. Faculty and staff instructed D.C. not
to “tattle” on classmates who bothered him; because of his disabilities, D.C. understood this to
mean that he should never report any bullying, no matter how severe. Id. at ¶¶ 16-17.
During winter, the school typically maintained a large snow pile on the playground. Id.
at ¶¶ 28-29. As the faculty and staff knew, children often played behind the snow pile, where
they could not be seen from the school doors. Id. at ¶¶ 33-34. Although the faculty and staff
were responsible for supervising students during recess, they typically remained near the doors
during outdoor recess breaks in the winter. Id. at ¶ 34. On at least two occasions between

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December 2013 and February 2014, a group of students brought D.C. behind the snow pile, held
him face down on the ground, and gyrated against his backside while yelling “ride the [D.C.]
train” and “ride the [D.C.] horse.” Id. at ¶ 38.
In January 2014, the Does became increasingly concerned by changes in D.C.’s behavior,
including his gyrating on others. Id. at ¶ 48. Apparently after discussing the bullying incidents
with D.C., the Does met with Grosch on February 27 to inform her of what had happened. Id. at
¶ 49. The next day, Grosch questioned D.C. and other children thought to be involved, and then
reported her findings to the Does, telling them that a known bully of D.C had organized a “bullriding game” with D.C.’s consent. Id. at ¶¶ 50-52. Grosch told the Does that she would ensure
that the offending students met with and apologized to D.C. Id. at ¶ 53. The Does feared that
such a meeting would embarrass and distress D.C., and they asked Grosch to remedy the
situation in another way, but she did not suggest an alternative. Id. at ¶¶ 54-55. Around the
same time, a student pushed D.C. to the ground during recess. Id. at ¶ 57.
Fearing further abuse and concerned that the school was not taking adequate protective
action, the Does removed D.C. from the school and eventually enrolled him at a private school.
Id. at ¶¶ 60-61. D.C. continues to suffer emotional distress from the incidents. Id. at ¶ 62.
Grosch never disciplined the students who bullied D.C. or the teachers who failed to supervise
the students during recess. Id. at ¶¶ 63-64.
Discussion
The Does’ federal claims, which arise under 42 U.S.C. § 1983, allege violations of the
Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at ¶¶ 122-142.
The § 1983 claims against the District must satisfy the municipal liability standards set forth in
Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). The Does

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have clarified that the federal claims against Grosch are official capacity claims, Doc. 18,
making them identical to the Monell claims against the District. See Walker v. Sheahan, 526
F.3d 973, 977 (7th Cir. 2008) (“Actions against individual defendants in their official capacities
are treated as suits brought against the government entity itself.”). The federal claims can
survive, then, only if the Does’ allegations establish a basis for municipal liability under Monell.
“A municipality may not be held liable under § 1983 based on a theory of respondeat
superior or vicarious liability. A municipality only may be held liable under § 1983 for
constitutional violations caused by the municipality itself through its own policy or custom.”
Jenkins v. Bartlett, 487 F.3d 482, 492 (7th Cir. 2007). To state a Monell claim, the plaintiff must
allege facts sufficient to show that a municipal employee’s unconstitutional act was caused by:
“(1) an express [municipal] policy that, when enforced, causes a constitutional deprivation; (2) a
widespread practice that, although not authorized by written law or express municipal policy, is
so permanent and well settled as to constitute a custom or usage with the force of law; or (3) an
allegation that the constitutional injury was caused by a person with final policymaking
authority.” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002) (citation omitted); see
also Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 379 (7th Cir. 2017) (en banc). In addition to
showing that the municipality acted culpably in one of those three ways, the plaintiff must allege
causation, meaning that the municipality, “through its deliberate conduct, … was the ‘moving
force’ behind the injury alleged.” Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404
(1997).
The Does seek to establish Monell liability in the second manner described above,
arguing that three District customs caused the bullying of D.C. First, the Does claim that the
teachers at D.C.’s school typically stayed close to the school doors during outdoor recess breaks

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in the winter, which prevented them from seeing behind the snow pile, where D.C. was
assaulted. Doc. 1-1 at ¶¶ 32-36, 88. But to base Monell liability on a governmental custom, a
plaintiff must show that an activity “was so persistent and widespread that [municipal]
policymakers should have known about the behavior.” Latuszkin v. City of Chicago, 250 F.3d
502, 505 (7th Cir. 2001). In Illinois, the final policymakers for school administration are district
school boards. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
1061 (7th Cir. 1998). The Does do not allege that Grosch or any other school employee, rather
than the school board, had policymaking authority over this matter. At most, then, the Does have
described a custom at D.C.’s school, not a custom of the District, and they give no reason why
the District was or should have been aware that teachers at a single elementary school sometimes
failed to adequately supervise outdoor recess breaks. Consequently, the Does’ Monell claim
cannot rest on this alleged custom. See Latuszkin, 250 F.3d at 505 (“[The plaintiff’s] complaint
must be dismissed … because he claimed no more than a policy or custom of the CPD. Nowhere
did he claim a policy or custom of the City.”); Classroom Teachers of Dall. v. Dall. Indep. Sch.
Dist., 164 F. Supp. 2d 839, 849 (N.D. Tex. 2001) (“[A]llegations of specific instances of
misconduct by the Principal at one school … do not constitute allegations of a persistent,
widespread practice of [District] officials.”) (internal quotation marks omitted).
Second, the Does claim that the District has a custom of failing to sufficiently investigate
bullying or to discipline offenders. Doc. 1-1 at ¶ 88, 95-100. To give rise to Monell liability,
municipal employees’ conduct must occur frequently enough to give rise to a reasonable
inference that the public employer “is aware that public employees engage in the practice and do
so with impunity.” Cosby v. Ward, 843 F.2d 967, 983 (7th Cir. 1988) (internal quotation marks
omitted). While there is no clear consensus as to how often the offending conduct must occur to

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constitute a custom, “it must be more than one instance, or even three.” Thomas v. Cook Cnty.
Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010) (internal quotation marks and citation
omitted). The Does have pointed to only one allegedly insufficient bullying investigation:
Grosch’s investigation of the incidents involving D.C. It follows that this alleged custom, like
the first, is not sufficiently widespread to support a Monell claim. See Gable v. City of Chicago,
296 F.3d 531, 538 (7th Cir. 2002) (“[T]hree incidents where vehicle owners were erroneously
told that their vehicles were not at Lot 6 do not amount to a persistent and widespread practice.”)
(internal quotation marks omitted).
The recently decided White v. City of Chicago, 829 F.3d 837 (7th Cir. 2016), does not
warrant a different result. The plaintiff in White alleged that the Chicago Police Department had
a custom under which officers would submit arrest warrant applications without sufficient factual
support. Id. at 839. As evidence of the custom, the plaintiff identified only one instance (his
own case) in which an officer submitted a factually deficient application, but he also alleged that
the city’s standard printed form for warrant applications did not require specific factual support.
Id. at 844. The Seventh Circuit found that, taken together, the individual allegation plus the
standard form provided sufficient evidence of a systematic practice to make out a Monell claim.
Ibid. Here, there is no equivalent to the standard form, as the Does point to nothing besides the
single allegedly insufficient investigation of D.C.’s bullying.
Third, the Does claim that the District failed to adequately train staff and faculty to detect
bullying and respond with appropriate discipline. Doc. 1-1 at ¶ 91, 101. “A municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to
train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). To give rise to this kind of liability, the
failure to train “must amount to deliberate indifference to the rights of persons with whom the

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untrained employees come into contact.” Ibid. (internal quotation marks omitted). “A pattern of
similar constitutional violations by untrained employees is ordinarily necessary to demonstrate
deliberate indifference” in the failure-to-train context. Id. at 62 (internal quotation marks
omitted); see also Johnson v. Cook Cnty., 526 F. App’x 692, 696-97 (7th Cir. 2013). The Does
argue that widespread violation of the District’s bullying policy at D.C.’s school evidenced an
obvious need for training. Doc. 1-1 at ¶¶ 91, 101. But, as noted, the Does point only to the
incidents involving their son, and therefore fail to make out a sufficient pattern of constitutional
violations. See Gable, 296 F.3d at 538.
The Supreme Court has left open the possibility that Monell failure-to-train liability can
be shown by a single incident where constitutional violations are a “highly predictable
consequence” of a failure to train; for example, if a police department failed to train recruits on
the use of deadly force. Connick, 563 U.S. at 63-64; see also Johnson, 526 F. App’x at 696-97.
But the Does forfeited any “single-incident” argument by failing to raise it in their opposition
brief. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have
repeatedly held that a party waives an argument by failing to make it before the district court.
That is true whether it is an affirmative argument in support of a motion to dismiss or an
argument establishing that dismissal is inappropriate.”) (citations omitted); Milligan v. Bd. of
Trs. of S. Ill. Univ., 686 F.3d 378, 386 (7th Cir. 2012) (“[T]he forfeiture doctrine applies not only
to a litigant's failure to raise a general argument … but also to a litigant’s failure to advance a
specific point in support of a general argument … .”).
Because the Does do not state a basis for Monell liability, the court need not address
Defendants’ arguments that the Does have not alleged actual due process or equal protection
violations. The federal claims are dismissed, but the dismissal is without prejudice and the Does

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will be given one opportunity to replead. See Runnion ex rel. Runnion v. Girl Scouts of Greater
Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 2015) (noting that “a plaintiff whose original
complaint has been dismissed under Rule 12(b)(6) should be given at least one opportunity to try
to amend her complaint before the entire action is dismissed”). If the Does do not attempt to
replead their federal claims, or if they try to do so but fail, the court will exercise its discretion to
relinquish its supplemental jurisdiction, 28 U.S.C. § 1367(a), over the state law claims and
remand them to state court.
“The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) [of § 1367] if … the district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). “As a general matter, when all federal claims
have been dismissed prior to trial, the federal court should relinquish jurisdiction over the
remaining pend[e]nt state claims.” Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007).
This general rule has three exceptions: “when the [refiling] of the state claims is barred by the
statute of limitations; where substantial judicial resources have already been expended on the
state claims; and when it is clearly apparent how the state claim is to be decided.” Ibid.
None of the exceptions apply here. Plaintiffs will not have to refile their state law claims,
as those claims, having arrived in federal court via removal, will be remanded to state court.
Substantial federal judicial resources have not yet been committed to the state law claims. And it
is not clearly apparent at this early stage how the state law claims (which allege intentional
infliction of emotional distress, and willful and wanton conduct) should be resolved. It follows
that relinquishing jurisdiction over the state law claims is the appropriate course under
§ 1367(c)(3). See RWJ Mgmt. Co., Inc. v. BP Prods. N. Am., Inc., 672 F.3d 476, 479-80 (7th Cir.
2012); Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251-53 (7th Cir. 1994).

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Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is granted as to the federal
claims and denied without prejudice as to the state law claims. The federal claims are dismissed
without prejudice. The Does have until September 29, 2017 to file an amended complaint. If
they do not file an amended complaint, or if they do so and the federal claims continue to fail to
state a viable claim, the federal claims will be dismissed with prejudice and the state law claims
will be remanded to state court.

September 8, 2017

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United States District Judge

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