Doe v. Sch. Dist. U-46

• Decision Date: 27 August 2021
• Docket Number: 20-cv-4273
• Citation: 557 F.Supp.3d 860
• Parties: John DOE and Jane Doe, Plaintiffs, v. SCHOOL DISTRICT U-46, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

557 F.Supp.3d 860

John DOE and Jane Doe, Plaintiffs,

v.SCHOOL DISTRICT U-46, et al., Defendants.

No. 20-cv-4273

United States District Court, N.D. Illinois, Eastern Division.

Signed August 27, 2021

Theodore Michael Gross, Bruning & Associates, P.C., Schaumburg, IL, for Plaintiffs.

Michael Joseph Hernandez, Caroline K. Kane, Erin Kathryn Walsh, Franczek Radelet, Chicago, IL, for Defendants School District U-46, School District U-46 Board of Education, Tony Sanders, Teresa Winters, Jeffrey Prowell, Nelly Gonzalez, Steve Johnson, Gina Dawkins.

Memorandum Opinion and Order

Elaine E. Bucklo, United States District Judge Plaintiffs John Doe and Jane Doe bring this action on behalf of their son, James Doe, a former student at Hillcrest Elementary School located in School District U-46 in Elgin, Illinois. Plaintiffs allege that in 2018, during James Doe's kindergarten year, he was subjected to bullying, physical assaults, and sexual assaults by four student offenders. Plaintiffs sued the school district and board of education, several teachers and administrators, and the student offenders and their guardians, alleging violations of substantive due process under 42 U.S.C. § 1983, violations of Title IX, willful and wanton misconduct, and various other state-law torts. The following defendants have now moved to dismiss the claims against them: School District U-46, School District U-46 Board of Education, and educators/administrators Tony Sanders, Teresa Winters, Jeffrey Prowell, Nelly Gonzalez, Steve Johnson, and Gina Dawkins (collectively, "Defendants"). For the foregoing reasons, their motion to dismiss [20] is granted in part and denied in part.

I.

In reviewing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), I "accept all well pled facts as true and draw all permissible inferences in favor of the plaintiff." Agnew v. Nat'l Collegiate Athletic Ass'n , 683 F.3d 328, 334 (7th Cir. 2012). To survive a motion to dismiss, the complaint must state a claim "that is plausible on its face" after conclusory allegations are disregarded. W. Bend Mut. Ins. Co. v. Schumacher , 844 F.3d 670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

During the 2018-2019 school year, James Doe was a kindergarten student at Hillcrest Elementary School ("Hillcrest") in the U-46 school district. ECF No. 1 ¶ 24. From August through December 2018, he was also enrolled in a before- and after-school childcare program called the "Supervised Activities for Children of Employed Parents" or "SAFE" program, which took place at Highland Elementary School ("Highland"), another school located within the U-46 school district. Id. ¶¶ 25-27. James Doe was transported from the SAFE program at Highland to Hillcrest and back again each day by a school bus owned and operated by the U-46 school district. Id. ¶¶ 29-30.

On or about August 27, 2018, shortly after the start of the school year, James Doe began to experience bullying from Student Offender 1, a student in James Doe's class. Id. ¶¶ 64-65. Specifically, Student Offender 1 pushed and punched James Doe on more than one occasion. Id. ¶ 66. On September 6, 2018, James Doe's father, John Doe, sent an email to James Doe's teacher at Hillcrest, Nelly Gonzalez, informing her of the bullying incidents with Student Offender 1. Id. ¶ 69. Ms. Gonzalez responded that James Doe had mentioned that week that Student Offender 1 had hit him, and she had spoken to both boys, but she "did not think much of it." Id. ¶ 72. She said she would speak to the boys again. Id.

In October, Student Offender 1's bullying of James Doe escalated, such that it now included kicking and persistent name calling. Id. ¶ 88. Student Offender 2, an older boy in sixth grade, also began bullying James Doe. Id. ¶ 90-91. On one occasion on October 5, Student Offender 2 took James Doe's shoes off and threw them down the hallway during the SAFE program. Id. ¶ 91. On October 12, 2018, John Doe again contacted Ms. Gonzalez, leaving a voicemail informing her of the continued incidents of bullying involving Student Offender 1 and commencement of bullying by other students including Student Offender 2. Id. ¶ 92. Ms. Gonzalez responded, via email, that she had informed the MTSS coordinator and the physical education teacher of the situation, and that the MTSS coordinator would talk with the boys. Id. ¶ 94.

On October 16, 2018, while travelling on the school bus, Student Offender 1 bullied James Doe once again, taunting him by announcing that his "butt smell[ed] bad" and he wore "baby underwear." Id. ¶ 99. James Doe sought help from an older female student, Student Offender 3. Id. ¶ 102. Student Offender 3 said that she would only help James Doe if he paid her. Id. ¶ 103. James Doe was carrying two dollars, which was to be used for a fundraiser at the SAFE program, so he gave Student Offender 3 one of the two dollars. Id. ¶ 100, 104. Student Offender 3 grabbed Student Offender 1 by the legs and told him to "stop bothering" James Doe. Id. ¶ 104. Student Offender 2, who was acting as a student patrol guard on the bus and had witnessed the exchange with Student Offender 3, also offered his help to James Doe if he gave him his other dollar. Id. ¶ 105. Student Offender 2 accepted the dollar, but did not intervene. Id. ¶ 106.

The next day, John Doe called Theresa Winters, the principal at Hillcrest, to inform her of the ongoing bullying James Doe was experiencing. Id. ¶ 107. Principal Winters informed John Doe that she would personally take care of the situation, that she was going to require all students involved to be spoken to, that all the students’ parents would be required to meet with her personally, and that James Doe would not be bullied again. Id. ¶ 111. Principal Winters subsequently informed John and Jane Doe that Student Offender 1's and Student Offender 3's parents had been spoken to, and that Student Offender 2 had been suspended from patrol duties for a week. Id. ¶ 112. Principal Winters also directed that James Doe be moved to the front of the school bus, away from the "older kids." Id. ¶ 114. However, because Student Offender 2 was a student patrol, he was often one of the last students to enter the bus, and often sat near the front. Id. ¶ 115. Accordingly, Plaintiffs allege that this intervention had the opposite of the intended effect. Id. ¶ 116.

From October 29, 2018 through December 14, 2018, James Doe was sexually assaulted daily on the bus at the hands of Student Offender 2 and Student Offender 4, a second-grade student who was friends with and sat near Student Offender 2 on the bus. Id. ¶¶ 117-18. Each day, Student Offender 2 and Student Offender 4 would come to the seat where James Doe was sitting, "take turns positioning themselves such that one of them would block the school bus driver's view of what was occurring on the bus," and engage in various sexually harassing and bullying activities. Id. ¶¶ 119-21. These activities included exposing their penises and buttocks to James Doe, forcing James Doe to touch their penises, forcing James Doe to remove his pants to expose his underwear and then making fun of the underwear he was wearing, and touching James Doe's penis and making fun of it. Id. ¶ 121.

On the evening of December 14, 2018, James Doe told his mother, Jane Doe, about the bullying and sexual assaults he had been experiencing on the bus each day. Id. ¶¶ 123-24. James Doe said he had not said anything to his mother earlier because "he was scared, and ... Student Offender 4 had told James Doe that Student Offender 4 would continue to do the things he was doing to James Doe even if James Doe told someone about it." Id. ¶ 125.

On Monday, December 17, John, Jane, and James Doe met with Principal Winters and discussed the bullying and sexual assault. Id. ¶ 127. Ms. Winters said that "her preliminary plan of action was to talk to Student Offender 2 and Student Offender 4, remove Student Offender 2 as student patrol, [and] require the parents for both Student Offender 2 and Student Offender 4 to pick up the boys at school that day so she could talk directly to their parents." Id. ¶ 132. She also said that she would ask the U-46 Transportation Department for the video from James Doe's December 14, 2018 bus rides. Id. Later that day, Ms. Gonzalez phoned Jane Doe to let her know that Principal Winters had informed her of the assaults, and added that James Doe had recently been acting "more clingy" with her. Id. ¶¶ 134-35.

On December 20, John Doe had a follow-up telephone call with Principal Winters. Id. ¶ 140. Principal Winters said that she had seen the video of the December 14, 2018 bus rides, and that she would request copies of all videos from October 29 through December 14. Id. ¶¶ 141-42. Plaintiffs have since requested to see those videos, but their requests have been denied. Id. ¶¶ 143-44. Principal Winters also said that Student Offender 2 and Student Offender 4 admitted to her that they took part in the conduct James Doe described. Id. ¶ 145. She told John Doe that "Student Offender 2 had been permanently removed as a patrol, was removed from the school bus, and was removed from the SAFE Program for the rest of [the] school year," and "Student Offender 4 had been removed from the school bus and the SAFE program for 1 week." Id. ¶¶ 146-47.

When school resumed in January 2019, the Does removed James Doe from the SAFE program and enrolled him in a private childcare program that was twice the cost. Id. ¶¶ 150-51. Principal Winters told John Doe that she would be in James Doe's classroom several times a week to check on him. Id. ¶ 153. The Does also requested that James Doe see Hillcrest's social worker, Gina Dawkins, on a regular basis. Id. ¶ 156. However, after two weeks, Ms. Dawkins informed the Does that James Doe was doing very well and she did not need to see him anymore. Id. ¶ 158. Plaintiffs allege that contrary to...