Duehning v. Aurora E. Unified Sch. Sch. Dist. 131, & Joy Chase

• Decision Date: 20 April 2015
• Docket Number: No. 13 C 5617,13 C 5617
• Parties: Josiah Duehning, Plaintiff, v. Aurora East Unified School School District 131, and Joy Chase, East Aurora High School Dean, Defendants.
• Court: U.S. District Court — Northern District of Illinois

102 F.Supp.3d 968

Josiah Duehning, Plaintiff,

v.Aurora East Unified School School District 131, and Joy Chase, East Aurora High School Dean, Defendants.

No. 13 C 5617

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

Signed April 20, 2015

Jason R. Craddock, Sr., Law Office of Jason R. Craddock, Chicago, IL, for Plaintiff.

Gary Knight Mickey, Bernard K. Weiler, Catherine Elizabeth Malesky, Jessica Lauren Briney, Peter K. Wilson, Jr., Mickey, Wilson, Weiler, Renzi & Andersson, P.C., Aurora, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo, United States District Court

Plaintiff Josiah Duehning brings this action against Defendants East Aurora School District # 131¹(the “District”) and Joy Chase, East Aurora High School Dean (“Chase”) (collectively “Defendants”) pursuant to 42 U.S.C. § 1983(“Section 1983”), alleging deprivations of his rights under the First and Fourteenth Amendments to the U.S. Constitution, as well as Sections 3and 4 of Article I of the Illinois Constitution. (R. 16, Am.Compl.) Plaintiff seeks a declaration pursuant to the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, and the Illinois Declaratory Judgment Act, 735 Ill. Comp. Stat. 5/2–701, that the District maintains a policy that “the public sidewalks in front of schools[,] such as East Aurora High[,] are public fora and thus open for activity[,] such as his preaching and leafleting.” (Id.at 18.) Presently before the Court are the parties' cross-motions for summary judgment. (R. 39, Defs.' Mot. Summ. J.; R. 52, Pl.'s Mot. Summ. J.) For the reasons stated below, Defendants' motion for summary judgment is granted, and Plaintiff's cross-motion for summary judgment is denied.

RELEVANT FACTS²

Plaintiff is an individual who resides in Aurora, Illinois. (R. 41, Defs.' Facts ¶ 1; R. 53, PL's Rule 56.1 Resp. ¶ 1.) The District is a school district located in Aurora, Illinois. (R. 41, Defs.' Facts ¶ 2; R. 53, Pl.'s Rule 56.1 Resp. ¶ 2.) Chase is a Dean of Students at East Aurora High School, and is employed by the District. (R. 41, Defs.' Facts ¶ 3; R. 53, Pl.'s Rule 56.1 Resp. ¶ 3.) Plaintiff has traveled to high schools and colleges in Aurora, Illinois, handing out Christian tracts (pamphlets) and engaging students in conversations about Christianity since 2008; specifically, he has visited East Aurora High School around a dozen times. (R. 53, Pl.'s Add'l Facts ¶ 1; R. 56, Defs.'

Rule 56.1 Resp. ¶ 1.) On earlier visits prior to the events at issue here, Plaintiff was told by police to cross the street when preaching and leafleting, but was not ticketed or arrested when he declined to do so. (R. 53, Pl.'s Add'l Facts ¶ 2; R. 56, Defs.' Rule 56.1 Resp. 2.) Plaintiff and Defendants dispute much of what transpired on the date at issue in this case, August 28, 2012, when Plaintiff returned to East Aurora High School to pass out tracts.

Plaintiff contends that he passed out tracts to students while standing on the sidewalk in front of East Aurora High School. (R. 53, Pl.'s Add'l Facts ¶ 4.) He further contends that after looking at a tract, Chase asked Plaintiff if he was involved with the school. (Id.¶ 5.) When he replied no, Chase told Plaintiff, “Oh, you'll have to go across the street then.” (Id.) Plaintiff maintains that he was on the sidewalk during this entire interaction. (Id.) He also contends that Chase never identified herself to him as a school official during this interaction. (Id.¶ 6.) After this interaction, Plaintiff began conversing with a group of students who “invited” him onto [school property] to further discuss his literature. (Id.¶ 10.)

However, Defendants present a different version of events: Defendants contend that Chase observed Plaintiff approaching students “on or near school property[,]” and observed that the students appeared “uncomfortable with and bothered by Plaintiff's presence and interaction.” (R. 41, Defs.' Facts ¶ 9.) Chase requested that Plaintiff exit school property in an effort to protect students from the unknown adult male who was not affiliated with the school. (Id.¶ 10.) Plaintiff refused to leave and continued approaching students on school property. (Id.¶ 11.)

The parties agree on what transpired next: after Chase spoke with Plaintiff, she then used her radio device to contact Officer Victor DeValdivielso, a City of Aurora police officer assigned to the school as a resource officer, to notify him that Plaintiff refused to leave school property. (R. 41, Defs.' Facts ¶ 13; R. 53, Pl.s' Add'l Facts ¶ 8.) Upon receiving the call from Chase, Officer DeValdivielso approached Plaintiff, who was standing on school property. (R. 41, Defs.' Facts ¶ 14; R. 53, Pl.s' Add'l Facts ¶ 11.) Chase personally identified Plaintiff to Officer DeValdivielso as the individual she was referring to in her radio communication. (R. 41, Defs.' Facts ¶ 15; R. 53, Pl.s' Rule 56.1 Resp. ¶ 15.) Officer DeValdivielso admonished Plaintiff that he should have left in response to Chase's earlier request and demanded his identification. (R. 53, Pl.s' Add'l Facts ¶ 11; R. 56, Defs.' Rule 56.1 Resp. ¶ 11.)

Plaintiff contends that he moved onto the sidewalk after realizing he was on school property and gave his identification to Officer DeValdivielso. (R. 53, Pl.s' Add'l Facts ¶ 12.) Plaintiff further contends that as Officer DeValdivielso checked out his identification, Chase told him “to stop passing out his Christian tracts.” (Id.¶ 13.) However, Defendants contend that Plaintiff refused to leave school property after being instructed to do so repeatedly by Officer DeValdivielso. (R. 41, Defs.' Facts ¶ 17.) Defendants further contend that after Chase identified Plaintiff to Officer DeValdivielso, she had no further contact with Plaintiff. (Id.¶ 16.) Defendants also contend that Chase was unaware of the content of Plaintiff s tracts and made no effort to read them. (R. 41, Defs.' Facts ¶ 22.)

The parties agree that after checking on Plaintiff's identification, Officer DeValdivielso twisted Plaintiff's arm and pushed him onto school property, to which Plaintiff stated that he did not want to go on the property. (R. 53, Pl.s' Add'l Facts ¶ 14; R. 56, Defs.' Rule 56.1 Resp. ¶ 14.)

Officer DeValdivielso told Plaintiff, “Don't resist, I WILL take you down.” (Id.) Officer DeValdivielso then arrested Plaintiff for criminal trespass pursuant to City of Aurora Ordinance Section 29–93. (R. 53, Pl.s' Add'l Facts ¶ 14; R. 41, Defs.' Facts ¶ 18.) Officer DeValdivielso subsequently performed a search of Plaintiff s belongings, including a backpack Plaintiff wore to carry his tracts, which revealed that Plaintiff had a knife in his backpack. (R. 41, Defs.' Facts 19; R. 53, Pl.s' Rule 56.1 Resp. ¶ 19.) The trespass charges against Plaintiff were later dismissed. (R. 53, Pl.s' Add'l Facts ¶ 15; R. 56, Defs.' Rule 56.1 Resp. ¶ 15.)

PROCEDURAL HISTORY

Plaintiff initiated this action on August 6, 2013, against the City of Aurora, Illinois, and Officer Victor DeValdivielso, Star Number 366, of the Aurora Police Department. (R. 1, Compl.) Plaintiff amended his complaint on April 8, 2014, adding the District and Chase as Defendants. (R. 16, Am.Compl.) In Count I, Plaintiff alleges that Officer DeValdivielso violated his First and Fourteenth Amendment rights. (Id.at 7.) In Count II, Plaintiff alleges a claim for false arrest against Officer DeValdivielso in violation of his Fourth and Fourteenth Amendment rights. (Id.at 9.) In Count III, Plaintiff alleges a claim for unlawful detention against Officer DeValdivielso in violation of his Fourth and Fourteenth Amendment rights. (Id.) In Count IV, Plaintiff alleges a claim of excessive force against Officer DeValdivielso in violation of his Fourth and Fourteenth Amendment rights. (Id.at 10.) In Count V, Plaintiff alleges a claim of retaliation against Officer DeValdivielso in violation of his Fourth, Fourth, and Fourteenth Amendment rights. (Id.) In Count VI, Plaintiff alleges that the City of Aurora maintained an unconstitutional custom or policy in violation of the First and Fourteenth Amendments. (Id.at 12.) In Count VII, Plaintiff alleges a claim for battery against Officer DeValdivielso. (Id.at 13.) In Count VIII, Plaintiff alleges that Chase violated his First and Fourteenth Amendment rights. (Id.at 14.) In Count IX, Plaintiff alleges that the District maintained an unconstitutional custom or policy in violation of the First and Fourteenth Amendments. (Id.at 15.) In Count X, Plaintiff alleges that Defendants violated his rights under Article I, Sections 3and 4 of the Illinois Constitution. (Id.at 16.) In Count XI, Plaintiff seeks a declaratory judgment pursuant to the Illinois Declaratory Judgment Act, 735 111. Comp. Stat. 5/2–701, that “the public sidewalks in front of schools[,] such as East Aurora High[,] are public fora and thus open for activity[,] such as his preaching and leafleting.” (Id.at 17.) In Count XII, Plaintiff seeks the same declaration from the Court pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, and Federal Rule of Civil Procedure 57. (Id.at 18.) In Count XIII, Plaintiff alleges a claim for indemnification against the District and the City of Aurora pursuant to the Illinois Tort Immunity Act, 745 Ill. Comp. Stat. 10/9–102. (Id.at 19.)

The City of Aurora and Officer DeValdivielso answered the amended complaint on May 5, 2014. (R. 24, City of Aurora & DeValdivielso's Answer.) Defendants filed a motion to dismiss Counts VIII–XIII of the Amended Complaint pursuant to Rule 12(b)(6) on May 21, 2014. (R. 25, Defs.' Mot. to Dismiss.) The Court denied Defendants' motion on July 2, 2014. (R. 34, Min.Entry.) Defendants answered the amended complaint on July 9, 2014. (R. 35, Defs.' Answer.) On August 12, 2014, Plaintiff voluntarily dismissed the City of Aurora and Officer DeValdivielso from this suit, (R. 36, Min.Entry), and the Court dismissed both parties with prejudice on August 13, 2014, (R. 37, Order). Counts VIII through XIII remained after dismissing the City...