Fonza v. Chicago Public Schools District #299 et al

Filing 39

MEMORANDUM Opinion and Order: Defendants' motion to dismiss, ECF No. 30 , is granted in part and denied in part. The complaint's § 1983 claims (Counts I, II, and III) against the Board and KIPP are dismissed, and the § 1983 clai ms are dismissed against all defendants except insofar as plaintiff asserts a state-created danger claim, as more fully discussed in this opinion, based on defendants' placing T.G. in the hallway. Defendants may move for dismissal on qual ified immunity grounds. If they choose to do so, the motion will be briefed as follows: the motion must be filed by and including 01/23/18; plaintiff's response is due by and including 02/06/18; and defendants' reply is due by and including 02/13/18. A status conference is set for 01/31/18 at 9: 30 a.m. Signed by the Honorable Joan B. Gottschall on 1/9/2018. Mailed notice(mjc, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TYANNE FONZA as next friend of T.G.,
a minor,

)
)
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Plaintiff,
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v.
)
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CHICAGO PUBLIC SCHOOLS DISTRICT )
#299, KIPP CHICAGO SCHOOLS, ELLEN )
DAVIS-BHATTACHARYYA, TESSA
)
CATLETT, MICHAEL ELLIOTT, and
)
CORRINNE HALL,
)
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Defendants.
)

No. 17-CV-3571
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
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
1

The complaint gives T.G.’s exact date of birth in paragraph four. Only the year of an individual’s birth may be
included in a public filing. Fed. R. Civ. P. 5.2(a)(2). At the court’s direction, the clerk has restricted public access
to the complaint temporarily. Plaintiff is directed to file, within seven days after the entry of this order, a redacted
complaint that complies with Federal Rule of Civil Procedure 5.2.

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,

2

Defendants also seek a more definite statement of the claim alleged in Count IV. See Fed. R. Civ. P. 12(e). That
issue is discussed in the text of Part III.D.

2

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)).
II. FACTUAL ALLEGATIONS
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.

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Plaintiff’s brief in opposition to the motion to dismiss says that “it was KIPP’s practice not to call for medical
assistance,” ECF No. 33 at 2, but plaintiff’s complaint does not so allege. The court nonetheless considers these
statements because they supplement the allegations in the complaint and are consistent with it. See Anzaldua v.
Chicago Transit Auth., No. 02 C 2902, 2002 WL 31557622, at *2 (N.D. Ill. Nov. 15, 2002) (stating court “will
consider additional information in a responsive brief to a motion to dismiss to the extent that it is supplemental and
consistent with the complaint and clarifies the information in the complaint” (citations omitted)).

3

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 statecreated 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

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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 Cir.
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.

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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 ProcessDeliberate 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 Officials and T.G. Alleged
Plaintiff alleges in Count I that it was obvious to defendants that T.G. “had a serious
medical condition and required immediate medical care.” Compl. ¶ 32. Nevertheless,
defendants failed to act, thereby “intentionally or recklessly” failing to provide T.G. with
adequate medical care for her serious condition. Compl. ¶ 34. This, plaintiff alleges, amounted
to “deliberate indifference.” Compl. ¶ 35.
Defendants contend that the legal basis for this claim is the Eighth Amendment. Defs.
Mot. to Dismiss ¶ 10, ECF No. 30. Count I never mentions the Eighth Amendment, see Compl.
¶ 31–36, and plaintiff denies that the Eighth Amendment is the basis for her claim. Rather,
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plaintiff argues, the basis for her claim is substantive due process under the Fourteenth
Amendment. 4 Resp. to Mot. to Dismiss 4–5, ECF No. 33.
To the extent plaintiff articulates a theory, and she fails to do so with much clarity, she
references the “special relationship” theory of liability and argues that T.G. was “under the
Defendant’s [sic] supervision and custody.” Resp. to Mot. to Dismiss 6. She relies for this
theory on J.O v. Alton Community Unit School, 909 F.2d 267, 272 (7th Cir. 1990). J.O. involved
a claim that a schoolteacher sexually molested several children. The J.O. plaintiffs claimed that
the school defendants had a “special relationship” to the schoolchildren, imposing an affirmative
duty to provide for their safety and prevent the child abuse that occurred. Id.
The Seventh Circuit rejected plaintiffs’ claim, holding that “the government, acting
through local school administrations, has not rendered its schoolchildren so helpless that an
affirmative constitutional duty to protect arises.” Id. at 272. Further, the court observed that
while it did not intend to limit the government’s affirmative duties to prisoners and mental
patients, the only groups as to which the Supreme Court has ever recognized such a duty,
schoolchildren are not “in custody” in the way necessary to give rise to such a duty. Id. Why
plaintiff relies on J.O. when it dooms her claim is unclear.
Besides J.O., she cites primarily prisoner cases, which the Seventh Circuit in J.O. said
were not analogous, 909 F.2d at 272–73, and she fails to argue why J.O. doesn’t doom her
claim. 5 She cites other cases, but all they do is note that the plaintiff did not raise a “special

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Plaintiff contends that defendants waived their right to argue against her Fourteenth Amendment Due Process
claim by devoting their argument to the Eighth Amendment. Resp. to Mot. to Dismiss 6. This contention is risible.
Count I does not mention the Due Process Clause in its body or heading. See Compl. 4–5. Defendants are trying to
understand what plaintiff is claiming, as is the court. That they guessed wrong, given the ambiguity of the
complaint, is hardly defendants’ fault.
5
Perhaps plaintiff has not thought through the consequences of her argument. In the case of prisoners, the state’s
obligation is to provide them with necessary medical care, meaning have sufficient doctors and provide the care free
of charge. See Estelle v. Gamble, 429 U.S. 97, 105–06 (1976). Plaintiff does not appear to want the defendants to
provide T.G. with medical care in this respect, and the idea that a school has to pay for a child’s medical needs

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relationship” argument. See Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir.
2011) (noting that plaintiff did not advance the argument that the schoolchild was in the state’s
custody) and Chigano v. City of Knoxville, 529 F. App’x 753, 757 (6th Cir. 2013) (“Plaintiffs do
not argue that M.C. was in the functional custody of the State”). Those fail to support her
argument.
2. The Complaint States a State-Created Danger Claim
While plaintiff has failed to make a viable argument for the survival of Count I, the court
believes that another argument, the argument plaintiff makes only in relation to Counts II and III,
(claims that say they are based on KIPP’s allegedly unsafe playground equipment, rather than on
T.G.’s allegedly obvious injury) should be considered here. That argument, related to plaintiff’s
“special relationship” theory but not fully developed by plaintiff, is the theory that a state actor
may be liable for exposing an individual to a “state-created danger.”
The Seventh Circuit discussed this theory in King ex rel. King v. East St. Louis School
District 189, 496 F.3d 812 (7th Cir. 2007). In King, plaintiff’s minor daughter, Jerica, was a
student at East St. Louis Senior High School who, on May 4, 2004, stayed late to talk with her
guidance counselor and missed the school bus. Id. at 814–15. Jerica told the guidance counselor
that she would need to call her mother, but did not request to use the phone and the counselor did
not offer Jerica the use of his phone. Id. at 815. Jerica left the school and went to a public bus
stop in front of the school, but she saw no bus coming. Id. She attempted to reenter the school
to call her mother, but the school’s doors were locked and a hall monitor, when told by Jerica that
she wanted to reenter the school to call her mother, denied her entry, stating that reentry was
against school policy. Id. Jerica then headed toward a MetroLink station where she was

borders on the ridiculous. She rather appears to want them to take steps to address T.G.’s injury, such as by calling
for help.

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abducted at gunpoint by two men and ultimately raped. Id. She was released the following
morning. Id.
The Seventh Circuit articulated three elements of the state-created danger doctrine.
First, . . . the state, by its affirmative acts, must create or increase a
danger faced by an individual[; s]econd, the failure on the part of
the state to protect an individual from such a danger must be the
proximate cause of the injury to the individual (. . . the plaintiff
must be the foreseeable victim of a defendant’s acts in a tort
sense)[; and t]hird, . . . the state’s failure to protect the individual
must shock the conscience.
Id. at 817–18 (citations and quotations omitted).
The plaintiff’s case in King failed the third element: there was nothing conscienceshocking about the school’s policy of refusing to allow unsupervised students to enter the
building after hours. Id. at 818–19. “There is no indication that the policy adopted was
deliberately indifferent to the safety of the students.” Id. at 819. Rather, “[a]ny fault on the part
of the school district in implementing such a policy was simple negligence in failing to account
for all circumstances that may arise in which a student would seek to reenter the school.” Id.
In Paine v. Cason, a mentally disturbed bipolar woman was released from a police
station shortly before sunset in the neighborhood of the Robert Taylor Homes, an area of
Chicago which then had a very high crime rate (the homes have since been demolished). 678
F.3d 500, 504 (7th Cir. 2012). She did not know where she was and wondered around,
eventually being taken to an apartment and raped at knifepoint. See id. at 505–06. Trying to
escape, she jumped out of a window and suffered serious permanent brain damage. Id. at 506.
“State actors,” the court held, “who needlessly create risks of harm violate the due
process clause by depriving persons of life, liberty, or property without process . . . .” Id. at 510.
“The police may not create a danger, without justification, by arresting someone in a safe place
and releasing her in a hazardous one while unable to protect herself . . . .” Id. at 511.
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Insofar as plaintiff claims that defendants placed a crying and bleeding 10-year-old in
excruciating pain in the school hallway, with no adult supervision, and no attempt to address her
medical needs, the plaintiff has alleged enough to plead a state-created danger claim. Like
releasing a person into a dangerous environment when that person cannot help herself, see Paine,
678 F.3d at 510–11, the defendants’ conduct cannot be viewed at this point as inaction, because
they allegedly examined T.G. and placed her in the hallway without aid or assistance; it was their
affirmative choice of what to do with the injured T.G. (basically nothing) that is the gravamen of
plaintiff’s complaint. Compare Stevens v. Umsted, 131 F.3d 697, 705 (7th Cir. 1997) (no statecreated danger theory of liability where state actors simply fail to act in the face of “suspicious
circumstances”). The Seventh Circuit held in Ross v. United States that the state-created danger
theory applied; the evidence showed “that the county had a policy of arbitrarily cutting off
private sources of rescue without providing a meaningful alternative” to people in danger of
drowning. 910 F.2d 1422, 1431 (7th Cir. 1990); see also id. at 1425 (describing policy and how
it affected the case; viz, deputy sheriff’s physically blocking divers who wanted to attempt a
rescue). The suffering that T.G. was enduring and would endure was, according to the
complaint, self-evident. Compl. ¶ 32. And school officials’ placing and then abandoning a tenyear-old in a school hallway effectively cuts her off from other possible sources of rescue.
Viewing the facts alleged in the complaint favorably to plaintiff, it is plausible that a ten-year-old
child told by her principal or teacher to sit in the hall would do as she was told. She would not
understand that she should call 911 herself (nor have the means to do so); she should not ask
another adult in the school for help (that would undermine the principal’s authority); and she
should not leave the school to seek help herself, even if she could. Therefore placing her in the
hallway in her obviously injured condition effectively is what created or increased much of the

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harm she faced on account of her injury by cutting her off from other sources of possible rescue
and limiting her options for helping herself. See Paine, 678 F.3d at 511; Ross, 910 F.3d at 1431;
Estate of Massey v. City of Phila., 118 F. Supp. 3d 679, 693 (E.D. Pa. 2015) (denying motion to
dismiss state-created danger claim of estate of child who died of asthma attack where plaintiff
adequately alleged “that school actors prevented [the child] from seeking medical attention and
taking medication that she used to control her asthma, thereby creating a danger to [the child]”);
cf. L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 244–47 (3d Cir. 2016) (plaintiff who alleged that
teacher released five-year-old to adult who did not produce identification and later assaulted
child alleged state created danger claim). Those defendants, who were aware of T.G.’s condition
and chose to abandon her, if such heedless conduct is proven, could be found to have acted in a
conscience-shocking manner. And clearly, plaintiff’s suffering (the extent to which her initial
injury was exacerbated, if any, cannot be determined from the complaint) proximately resulted
from defendants’ failure to summon aid. There is a great deal here that plaintiff will have to
prove, but she pleads enough to allege that T.G. was exposed to a state-created danger.
3. The Condition of the Playground Does Not Plausibly Allege a State-Created Danger Claim
With regard to plaintiff’s claims based on her allegation that the playground equipment
was unsafe and known by defendants to be unsafe, the court finds the complaint inadequate. The
court can imagine no legal theory other than state-created danger that could apply here, and
plaintiff’s citation of prison cases and/or cases that rely entirely on state law adds little if
anything to her argument. Since plaintiff has not alleged enough to state a claim that the state
officials’ conduct was conscience-shocking, the court will address only that requirement.
The only thing alleged in plaintiff’s complaint that even arguably relates to this
requirement are the allegations, stated on information and belief, that other children had been

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previously hurt on the equipment. Compl. ¶¶ 41, 50. Given the critical importance of this
element to stating a constitutional claim, the court finds plaintiff’s vague allegation insufficient
to make out a plausible claim of conscience-shocking behavior under either Twombly, supra, 550
U.S. at 555, or Iqbal, supra, 556 U.S. at 677–78. Without an allegation of conscience-shocking
behavior, plaintiff has no due process claim, and a vague allegation of an unstated number of
unspecified other injuries, stated on information and belief, fails the plausibility test. Without an
allegation of conscience-shocking behavior, all plaintiff has is a negligence claim. This is
insufficient.
C. Qualified Immunity
Oddly, defendants stealthily tuck their qualified immunity argument into a portion of their
brief in support of their motion to dismiss under the title “Insufficient Facts to Plead Violation of
Alleged Due Process Rights” and rely on only one case which has nothing in common with this
one, Spady v. Bethlehem Area School District, 800 F.3d 633, 642 (3d Cir. 2015). Mot. to Dismiss
5–10, ECF No. 30. Plaintiff responded to this argument, ECF No. 33 at 14–15, yet in their reply
brief, defendants do not mention qualified immunity.
Whether this is a waiver or just an example of sloppy briefing, the court cannot
determine. Since defendants mention qualified immunity, it is perhaps not a waiver.
Nevertheless, it is not the court’s role to make the parties’ arguments for them. See, e.g., United
States v. McLee, 436 F.3d 751, 760 (7th Cir. 2006) (“it is not the obligation of this court to
research and construct the legal arguments open to parties, especially when they are represented
by counsel” (quoting United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003))); Sommerfield v.
City of Chicago, 252 F.R.D. 407, 419 & n.9 (N.D. Ill. 2008) (Gottschall, J.) (collecting authority
and applying this rule, refusing to conduct legal research for the parties, and finding that party

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forfeited perfunctory, undeveloped legal arguments made in briefing ).
If defendants wish to rely on qualified immunity, they need to make that clear and they
need to provide a coherent argument. They may move to dismiss on qualified immunity grounds
if, after reading this opinion (which hopefully does a somewhat better job than plaintiff at
articulating the alleged constitutional violation at stake), they wish to raise that issue.
D. Count IV: State Claim for “Negligence—Willful and Wanton”
Defendants argue that a provision of the Illinois Tort Immunity Act, 745 Ill. Comp. Stat.
10/2-201, bars plaintiff’s claim. That section provides that except as otherwise directed 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.”
Defendants’ reliance on Eilenfeldt v. United C.U.S.D. #304 Board of Education, 30 F.
Supp. 3d 780, 792 (C.D. Ill. 2014), is misplaced. While the Eilenfeldt court relied on a case
involving (as did Eilenfeldt) actions of school officials allegedly encouraging the bullying of the
plaintiff’s minor son, plaintiff in Eilenfeldt failed to respond to defendants’ arguments that the
acts involved were policy determinations and exercises of discretion. Id. It was plaintiff’s
failure to respond, although given two opportunities to do so, that led the court to find that the
Tort Immunity Act covered the alleged conduct. See id. at 791–92 (lamenting that plaintiff
suggested no way to distinguish another bullying case, Hascall v. Williams, 996 N.E.2d 1168 (Ill.
App. Ct. 2013)). Whether or not that result was correct, given whatever the complaints in those
cases alleged the defendants did or did not do, that case does not establish that watching an
injured ten-year old crying, bleeding and writhing in pain without doing anything is a policy
decision and within defendants’ discretion. See id. at 792 (“Defendants . . . must demonstrate

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that the employees’ acts or omissions leading to the alleged injuries are both policy
determinations and exercises of discretion.” (citing Harinek v. 161 N. Clark St. Ltd. P’ship, 692
N.E.2d 1177, 1181 (Ill. 1998)). Nor does it establish that if, as alleged, numerous students were
injured in the same way as T.G. was, defendants had discretion to turn a blind eye and ignore an
obvious danger. Discovery might show that defendants were acting in the exercise of their
discretion, but defendants’ reliance on Eilenfeldt does not. See id. at 785–86 (describing bullying
incidents; no decisions about medical care; no affirmative acts cutting off child form sources of
help).
Nor is the court persuaded that defendants were acting in the exercise of their discretion
by defendants’ description of their conduct, raised to an almost meaningless level of generality
(“decisions on how to handle procedures at recess and how to address the healthcare needs of a
student”). Mot. to Dismiss 10, ECF No. 30 (citing nothing besides the case just discussed).
Whether defendants were acting in the exercise of their discretion will require a much more
thorough exploration of the facts than the complaint provides. 6
Defendants further argue that plaintiff improperly combines a negligence claim with a
willful and wanton claim, which makes it difficult for defendants to plead the proper immunities.
Mot. to Dismiss ¶ 24. Defendants request a more definite statement under Federal Rule of Civil
Procedure 12(e), but they cite not a single case in support of their argument that the theories must
be pleaded in separate counts, and reference a large number of undifferentiated statutes. See id.
This is an inadequately developed argument which the court properly disregards. See, e.g., Davis
v. Duckworth, 107 F.3d 873, 1997 WL 58811, (7th Cir. 1997) (unpublished table decision). And
the court does not see how defendants’ ability to respond to the complaint is hampered in this
6

The court ignores the language of the Act that provides an exemption for policy-making activities. Defendants
argued that Monell requires dismissal of the Board and KIPP because plaintiff failed to allege a policy and the court
agreed.

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regard. See Chapman v. Yellow Cab Cooperative, 875 F.3d 846,849 (7th Cir. 2017) (stating that
a motion for more definite statement “is the right way to ask plaintiffs to lay out details that
enable the defendants to respond intelligently and the court to handle the litigation effectively”
(citation omitted)). Plaintiff clearly charges all defendants with both negligent and willful and
wanton conduct, based on the incorporation of all previous paragraphs of her complaint, and
defendants should respond accordingly.
Finally, defendants argue that the Board is not subject to punitive damages whether with
respect to plaintiff’s §1983 claims or her pendent state law claims. See 745 Ill. Comp. Stat. 10/2102 (stating that a local public entity is not liable to pay punitive damages “in any action arising
out of an act or omission made by the public official while serving in an official . . . capacity”).
Plaintiff concedes that this section bars the recovery of punitive damages against defendants
KIPP and the Board, but not against the individual defendants. Resp. to Mot. to Dismiss 15,
ECF No. 33. Defendants do not appear to disagree, but argue that because the complaint
commingles the defendants within each count, the prayers for punitive damages in each count
should be stricken. Reply 12, ECF No. 35.
The court sees no need for such a harsh result. The parties appear to agree that punitive
damages are not available on either the federal or state claims against the Board and KIPP, which
at this point remain defendants only to plaintiff’s state law count (Count IV). This opinion
establishes that as the law of the case, and no amendment is required. Nevertheless, given how
badly plaintiff’s complaint articulates any theories of relief which the court has found to be
viable, an amendment would certainly help move this action forward, and getting rid of futile

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claims for punitive damages against defendants who are not liable for such damages would be
helpful as well. 7
IV. CONCLUSION
For the reasons stated, defendants’ motion to dismiss, ECF No. 30, is granted in part and
denied in part. The complaint’s § 1983 claims (Counts I, II, and III) against the Board and KIPP
are dismissed, and the § 1983 claims are dismissed against all defendants except insofar as
plaintiff asserts a state-created danger claim, as more fully discussed in this opinion, based on
defendants’ placing T.G. in the hallway. Defendants may move for dismissal on qualified
immunity grounds. If they choose to do so, the motion will be briefed as follows: the motion
must be filed by and including 01/23/18; plaintiff’s response is due by and including 02/06/18;
and defendants’ reply is due by and including 02/13/18. A status conference is set for 01/31/18
at 9: 30 a.m.

Date: January 9, 2018

/s/
Joan B. Gottschall
United States District Judge

7

Also, the school district and the defendant named as Corrinne Hall tell the court that they are misnamed in the
complaint. See Mot. to Dismiss 1, ECF No. 30. Correcting this would be helpful as well.

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