Mosely v. Board of Educ. of City of Chicago

• Decision Date: 04 January 2006
• Docket Number: No. 03-4120.,No. 03-4074.,03-4074.,03-4120.
• Citation: 434 F.3d 527
• Parties: Lillian L. MOSELY, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

434 F.3d 527

Lillian L. MOSELY, Plaintiff-Appellant, v. BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.

No. 03-4074.

No. 03-4120.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2005.

Decided January 4, 2006.

Lillian L. Mosely, Chicago, IL, pro se.

Kathleen M. Gibbons (argued), Chicago Board of Education Law Department, Chicago, IL, for Defendant-Appellee.

John S. Skilton, Gabrielle E. Bina (argued), Heller Ehrman LLP, Madison, WI, amicus curiae.

Before FLAUM, Chief Judge, and BAUER and WOOD, Circuit Judges.

WOOD, Circuit Judge.

For the better part of two years, Lillian Mosely fought the efforts of the Chicago Public Schools to place her son Melvin in a special education class. She was not satisfied with the treatment Melvin was receiving; moreover, as she saw matters, her efforts led the Board of Education of the City of Chicago to retaliate against her in a number of ways. Mosely eventually sued under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., complaining about Melvin's treatment and the procedures the schools had used, and under 42 U.S.C. § 1983, asserting that her own civil rights had been violated through the Board's retaliatory acts. The respective district court judges to whom these two cases were assigned each dismissed them: the IDEA case on grounds of lack of exhaustion of administrative remedies, and the retaliation case for failure to state a claim on which relief could be granted. Mosely has appealed. With the able assistance of amicus curiae recruited by this court to explore the issues Mosely presented pro se in the district court, we have concluded that these dismissals were premature. We therefore remand both cases to the district court for further proceedings.

I

Given the procedural posture of the case, we present the facts in the light most favorable to Mosely. Our review of the legal issues presented is, of course, de novo.

In March 2000, Mosely learned that Melvin—at that time a student at Samuel Gompers Elementary School, one of the Chicago public schools—had been placed in a class of children with "explosive personalities." No one had notified Mosely that Melvin was subject to such a placement, despite the fact that the IDEA spells out a number of procedures that must be followed before this kind of step is taken. See 20 U.S.C. § 1414(a)(1)(A)-(B). In the course of investigating Melvin's placement at Gompers, Mosely learned that her son had also been taught by special education teachers in his kindergarten, first-grade, and second-grade years at Jesse Owens Academy.

Mosely undertook to educate herself about the procedures that the Chicago Public Schools were obliged to follow before placing a child in a special education class (or removing the child from such a class). She attended meetings of the Board, she spoke with individuals in the school administration, and she discovered and reviewed skills survey tests that Melvin had taken at Jesse Owens. Because of these efforts, she believes, at the beginning of the new school year in September 2000 school staff began to harass Melvin. On September 25, 2000, he was written up for exhibiting hostile actions. On September 28, one day after Mosely attended a Board meeting where she inquired about allocations of school funds, she received an interim progress report indicating that Melvin was failing every class except Spanish and gym. In October, a day after Mosely asked for a copy of the school budget, Melvin was "written up for a suspension hearing." The same thing happened a month later: on November 10, Mosely went to the school to pick up a memorandum, and Melvin was written up for another suspension hearing the same day. Gompers administrators never offered to assist Melvin by placing him in their program to decrease student suspensions.

In January 2001, the school placed Melvin in a sixth-grade classroom for gifted students. The teacher told him that she "did not want to get involved [in] his mother's mess with the principal." Troubles resumed in March. On March 13, police officers arrived at the classroom and pulled Melvin out for questioning because a parent had filled out a police report about a fight involving her son. The police showed up notwithstanding the fact that the parent had spoken with Mosely and had told her that the problem had been solved, and the parent had decided not to file charges. The school held a meeting with Mosely on March 14 to discuss the matter; information emerging at that meeting revealed that the other child had started the incident. A school official refused to give Mosely a copy of the police report.

Mosely attended another meeting at the school on April 10 with the principal of the school, Mrs. Grissett, several school faculty members, two police officers, two parents, Melvin and his father, and three young men who claimed to have overheard Melvin threatening to slash the tires on two cars. On that occasion, one teacher said that she had heard a month earlier that Melvin was going to bring a gun to school. Mrs. Grissett insisted that the teachers file charges against Melvin. They complied and filled out police reports, but they did not give copies of their reports to Mosely. Instead, they gave her only the numbers of the reports and told her to go to the police station to obtain her copies. At the end of the meeting, Mosely took Melvin outside, and Melvin burst into tears.

At the beginning of the next school year, in September 2001, Mosely decided to home-school Melvin. He has not attended the Chicago Public Schools since October 2001. The schools were slow in giving Mosely Melvin's school records. Mosely claims that as a result of the false accusations that had been made against him, Melvin was denied a public school education and developed problems in trusting adults. In an amended complaint, Mosely added the allegation that Melvin was now "forced to be enrolled in the GED program instead of having a normal education like most kids."

While all of this was going on with Melvin, Mosely was taking—or trying to take—an active role in school governance. In October 1999, Mrs. Grissett informed Mosely that the school needed to have a parent serve as chairperson of a committee the school had for purposes of the Improving America's Schools Act (IASA), Act of Oct. 20, 1994, Pub.L. No. 103-382, § 1; see 20 U.S.C. § 6318. Mosely was elected IASA chairperson for Gompers for the 1999-2000 and 2000-2001 school years. It turned out, however, that her position was nominal at best. She was expected to sign off on the school's budget and design plans, even though she had no background information about them. She suspected that her signature was forged on some documents, as she received awards and letters of appreciation relating to projects she knew nothing about.

Matters took a turn for the worse at a meeting on April 5, 2000, where Mosely was passing out flyers at the request of another person. While she was doing so, the resource teacher signaled to the police to have Mosely removed from the premises. Shortly thereafter, Mosely attended a meeting at the school about the IASA committee, where she got the impression that the faculty found her chairpersonship amusing. The pattern of insufficient information continued into 2001. When Mosely began asking pointed questions about the budget, the harassment of Melvin escalated. On June 6, Mosely was hospitalized for a nervous breakdown that resulted from the stress she and Melvin were experiencing; shortly thereafter, she turned to the courts.

II

The IDEA case, No. 03-4074 in this court, was assigned to District Judge Suzanne B. Conlon. In response to a motion from the defendant Board of Education, the district court dismissed the case without prejudice in an order docketed on October 23, 2003. It explained that Mosely had "fail[ed] to allege she exhausted IDEA's administrative remedies. This is a fatal defect, precluding this court's jurisdiction." The retaliation case, No. 03-4120 in this court, was assigned to District Judge Matthew F. Kennelly. In an order granting the Board's motion to dismiss, he construed the complaint before him as raising issues related only to retaliation against Mosely personally, as opposed to actions taken against Melvin. The acts of retaliation that involved Melvin had occurred between October and November 2000, a time period more than two years before Mosely filed suit in July 2003. If Mosely were trying to assert Melvin's rights, the court reasoned, she brought suit too late. Viewed as a case about her own experiences, Mosely was complaining only about the denial of information pertinent to her position as IASA chairperson. This, in the court's view, did not "amount to sufficiently adverse action to form the basis for a lawsuit."

III

Before reaching the merits of either appeal, there are two preliminary questions we must address. The first, which relates only to No. 03-4074, concerns the perennial problem of our appellate jurisdiction over a dismissal without prejudice; the second (to which Judge Kennelly alluded) relates to Mosely's ability to bring a pro se action on behalf of her child.

In Hoskins v. Poelstra, 320 F.3d 761 (7th Cir.2003), we distinguished between dismissing a complaint without prejudice, which normally is not a final disposition, and dismissing a case without prejudice, which is more likely to be final for purposes of 28 U.S.C. § 1291. Id. at 763. One way that we can assure ourselves that the necessary finality for appeal exists is by looking to see if any amendment that the plaintiff reasonably could offer would resuscitate the case. If the answer is no, then the words "without prejudice" do not have much meaning. Similarly, if a new suit by the plaintiff would be barred by the statute of limitations, it is safe to say that the previous disposition is final for purposes of appeal. See Muzikowski v. Paramount Pictures Corp., 322...