LaRiviere v. Board of Trustees of Southern Illinois University et al

Filing 39

ORDER granting 35 Motion to Dismiss for Failure to State a Claim. The Court DISMISSES with prejudice the official capacity claims for monetary damages against Fuglini, Meyer and Neher contained in Count III and DISMISSES without prejudice the rem aining claims in Count III. Further, the Court ALLOWS LaRiviere, up to and including March 22, 2017, to file a third amended complaint that comports with the Federal Rules of Civil Procedure and the Local Rules of this Court. See Order for details. Signed by Judge David R. Herndon on 2/22/17. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JANICE LARIVIERE,
Plaintiff,
v.

No. 16-1138-DRH

BOARD OF TRUSTEES OF
SOUTHERN ILLINOIS UNIVERSITY,
Governing SOUTHERN ILLINOIS
UNIVERSITY-EDWARDSVILLE,
PAUL FUGLINI, DONNA MEYER,
and KENNETH NEHER,
Defendants.
MEMORANDUM and ORDER
HERNDON, District Judge:
Introduction and Background
Pending before the Court is defendants’ partial motion to dismiss plaintiff’s
count III claim (Doc. 35). LaRiviere opposes the motion (Doc. 32). Based on the
pleadings and the applicable case law, the Court grants the motion.
On October 14, 2016, defendants Board of Trustees of Southern Illinois
University (“SIU”), Paul Fuglini, Donna Meyer and Kenneth Neher removed this
case from St. Clair County, Illinois Circuit Court to this Court based on federal
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question jurisdiction, 28 U.S.C. § 1331 (Doc. 1). On September 2, 2016, Janice
LaRiviere, an African American, filed suit against defendants in state court alleging
unlawful retaliation against SIU in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3 (Count I); racial discrimination against SIU in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (Count II); damages
against SIU for intentional discrimination pursuant to 42 U.S.C. § 1981a (Count
III); intentional infliction of emotional distress against Meyer, Fuglini and Neher
(Count IV); and negligent infliction of emotional distress against Meyer, Fuglini and
Neher (Count V).

Thereafter, defendants filed a motion for more definite

statement (Doc. 7). On November 21, 2016, after no response from LaRiviere,
Magistrate Judge Stephen Williams granted the motion and directed LaRiviere to
file an amended complaint that “identifies the capacity in which each Defendant is
being sued in Counts 4 and 5, and identifies the specific Defendants who allegedly
perpetrated each act alleged in the Complaint.” (Doc. 15).
On November 23, 2016, LaRiviere filed a first amended complaint (Doc.
17). 1 The first amended complaint alleges violations of 42 U.S.C. § 2000e-3; Title
VII; 42 U.S.C. § 1981 against SIU (Count I); violations of 42 U.S.C. § 2000e-2; Title
VII; 42 U.S.C. § 1981 (Count II); violations of 42 U.S.C. § 1983 against SIU (Count
III); violations of 42 U.S.C. § 1983 against Fuglini, Meyer and Neher (Count IV);
intentional infliction of emotional distress against Meyer, Fuglini, and Neher (Count

1 The Court notes that neither the first amended complaint (Doc. 17) nor the second amended
complaint (Doc. 32) comports with the Local Rules of this Court, in particular Local Rule 15.1.

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V) and negligent infliction of emotional distress against Fuglini, Meyer and Neher
(Count VI). Thereafter, defendants moved to dismiss LaRiviere’s Section 1981,
Section 1983 and portions of her Title VII claims in the first amended complaint
(Docs. 23 & 24) and defendants filed an answer (Doc. 25). In response, LaRiviere
filed a motion for leave to file a second amended complaint (Doc. 30), a
memorandum in opposition to the motion to dismiss (Doc. 31) and a second
amended complaint (Doc. 32) on January 2, 2017.

On January 3, 2017, the

Court granted her leave to file the amended complaint and found as moot the
motion to dismiss (Docs. 33 & 34).
The second amended complaint contains the following counts against
defendants: violations of 42 U.S.C. § 2000e-3 against SIU (Count I); violations of 42
U.S.C. § 2000e-2 against SIU (Count II); violations of 42 U.S.C. § § 1983 and 1981
against Fuglini, Meyer and Neher (Count III); intentional infliction of emotional
distress against Meyer, Fuglini and Neher (Count IV) and negligent infliction of
emotional distress against Fuglini, Meyer and Neher (Count V).
In response to the second amended complaint, defendants filed the partial
motion to dismiss Count III (Docs. 35 & 36) and an answer (Doc. 37). As the
motion to dismiss is ripe, the Court turns to address the merits.
Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the
complaint, not its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910
F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to
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dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint
and draws all reasonable inferences from those facts in the plaintiff's
favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with
fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed. 2d 868 (2009); see also Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed. 2d 929 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
Analysis
Defendants argue that Count III of the second amended complaint fails to
sufficiently plead a cause of action by failing to allege any facts to support a claim
against either the official capacity defendants or the personal capacity defendants
despite the Court’s previous Order to plead with more particularity. Defendants
also argue that the official capacity defendants are not “Persons” subject to suit
under Section 1983 and that plaintiff’s Section 1981 and Section 1983 for
monetary damages against defendants in their official capacity are barred by the
Eleventh Amendment. LaRiviere counters that she has stated a claim in that “[t]he
first paragraph of Count III of Plaintiff’s Second Amended Complaint delineates
specifically each individual Defendant it is directed. … and that “each individual
defendant ‘in their personal and official capacities subject to exceptions, directly
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participated in the discriminatory and retaliatory conduct described hereinabove’
… hence, any and all acts mentioned in the preceding paragraphs which outlined
discriminatory and retaliatory conduct.” (emphasis in original). As to the official
capacity § 1983 claims, LaRiviere seems to argue that she is seeking equitable relief
in that “persons can still be sued in their official capacity if prospected relief is
requested i.e. an injunction or declaratory judgment and monetary damages that
are ancillary to either.”
Here, the LaRiviere’s second amended complaint simply contains the
following allegations the three individual defendants in Count III:
“48. That Defendants Paul Fuglini, Donna Meyer, and Kenneth Neher,
individually, and in their personal and official capacities subject to
exceptions, directly participated in the discriminatory and retaliatory
conduct described hereinabove as part of a broader policy of
discrimination towards the Plaintiff in retaliation for engaging in
conduct protected by 42 U.S.C. Section 2000 et seq.
49. That the actions and conduct as alleged were acts under color of
State law; that the aforesaid Defendants intentionally acted to deprive
the Plaintiff of her rights and privileges, or immunities secured by the
Constitution of the United States thereby constituting a violation under
42 U.S.C. Section 1983.
50. That as a direct and proximate result of Defendant’s [sic] Paul
Fuglini, Donna Meyer and Kenneth Neher’s actions in violation of 42
U.S.C. § 1983, the Plaintiff was injured and/or harmed in ….”
Doc. 32, p. 10.

In addition, LaRiviere seeks compensatory damages, punitive

damages, attorney’s fees, and any other judicial or equitable relief as the Court
deems just and appropriate. (Doc. 32, p. 10).

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Individual Capacity Claims
In order for an individual to be liable under § 1983, he or she must have
been personally involved in the alleged constitutional violation. See Hildebrandt v.

Ill. Dep't of Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003). A defendant may
be personally liable “if the conduct causing the constitutional deprivation occurs at
[his] direction or with [his] knowledge and consent. That is, he must know about
the conduct and facilitate it, approve it, condone it, or turn a blind
eye.” Id. (alteration in original) (quoting Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995)). Individual defendants are not liable simply because they may have
been the supervisor over those who violated LaRiviere' rights. McKinnon v. City of

Berwyn, 750 F.2d 1383, 1390 (7th Cir. 1984) (respondeat superior is not
applicable to § 1983 claims). Therefore, for Fuglini,

Meyer and Neher to be

liable in their personal capacities, LaRiviere must plead sufficient facts to plausibly
show that the individual defendants engaged in the offending conduct or at a
minimum knew about it and consented to it. Hildebrandt, 347 F.3d at 1039.
In addition, § 1981 protects the rights of all persons “to make and enforce
contracts” regardless of race. Unlike Title VII, individual employees can be held
liable for race discrimination under § 1981. See Smith v. Bray, 681 F.3d 888, 832
(7th Cir. 2012). An individual can also “be liable under § 1981 for retaliatory
conduct that would expose her employer to liability under Title VII or § 1981.” Id.
at 899.

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Here, the Court finds that LaRiviere has failed to state claims under § 1983
and § 1981 against Fuglini, Meyer and Neher in their individual capacities. The
Court concludes that the allegations are too sparse to support these claims. She
does not specify any individual conduct directed to any of the individual
defendants. As the allegations stand now, one can speculate only as to what the
allegations are against Fuglini, Meyer and Neher.

Defendants do not have the

requisite notice of the purported allegations lodged against them. LaRiviere has
not pled sufficient facts to plausibly show that the individual defendants engaged in
the offending conduct or at a minimum knew about it and consented to it. Thus,
the Court GRANTS defendants’ motion as to this issue.
Official Capacity Claims
In response to the motion to dismiss and as stated supra, LaRiviere appears
to concede that she is only seeking equitable/injunctive relief, not monetary
damages, against these three defendants as to the claims against them in their
official capacities. This comports with settled law in this area this area, which
states that monetary damages under § 1983 are only available on individual
capacity claims. Brown v. Budz, 398 F.3d 9044, 918 (7th Cir. 2005)(Eleventh
Amendment bars official capacity claims for monetary damages). The Eleventh
Amendment bars federal jurisdiction over claims against state officials in
their official capacity. MCI Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323,
336–37 (7th Cir. 2000). However, the immunity is not absolute and does not

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extend to claims to enjoin a state officer in his or her official capacity from
engaging in prospective action that will violate federal law. Brown, 398 F.3d at
917 (citing Ex Parte Young, 209 U.S. 123, 159–60, 28 S. Ct. 441, 52 L.Ed. 714
(1908)).

To determine whether or not a complaint avoids the Eleventh

Amendment bar, the Court needs to determine whether the “complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.” Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645,
122 S. Ct. 1753, 1760, 152 L.Ed. 2d 871 (2002).
The law is clear that LaRiviere may not seek monetary damages against the
individual defendants in their official capacities for her § 1983 claim and her § 1981
claim.

Furthermore, the allegations for equitable relief are completely

unsatisfactory. Merely alleging “in their personal and official capacities subject to
exceptions,” and seeking “[a]ny other judicial or equitable relief as this Court deems
just an appropriate” is insufficient to state a claim for injunctive/equitable relief
against the defendants in their official capacities even under the most liberal
pleading standard. Thus, the Court grants the motion on these issues.
Conclusion
Accordingly, the Court GRANTS defendants’ partial motion to dismiss
plaintiff’s Count III claim (Doc. 35). The Court DISMISSES with prejudice the
official capacity claims for monetary damages against Fuglini, Meyer and Neher
contained in Count III and DISMISSES without prejudice the remaining claims in
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Count III.

Further, the Court ALLOWS LaRiviere, up to and including March 22,

2017, to file a third amended complaint that comports with the Federal Rules of
Civil Procedure and the Local Rules of this Court.

The failure to file a third

amended complaint as directed shall result in the dismissal with prejudice of the
claims contained in Count III.
IT IS SO ORDERED.
Signed this 22nd day of February, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.02.22
10:29:42 -06'00'
United States District Judge

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