Mohammed v. Naperville Cmty. Unit Sch. Dist. 203

• Decision Date: 08 February 2021
• Docket Number: 19 C 6525
• Citation: Mohammed v. Naperville Cmty. Unit Sch. Dist. 203, 19 C 6525 (N.D. Ill. Feb 08, 2021)
• Court: U.S. District Court — Northern District of Illinois
• Parties: ABDUL MOHAMMED, Plaintiff, v. NAPERVILLE COMMUNITY UNIT SCHOOL DISTRICT 203, DAN BRIDGES, NANCY VOISE, ERIN ANDERSON, SUSAN VIVIAN, ANDREA SZCZEPANSKI, RACHEL WEISS, KRISTIN FITZGERALD, DONNA WANDKE, CHARLES CUSH, KRISTINE GERICKE, JOSEPH KOZMINSKI, PAUL LEONG, JANET YANG ROHR, OTTOSEN BRITZ KELLY COOPER GILBERT & DINOLFO LTD, and JOE MILLER, Defendants.

ABDUL MOHAMMED, Plaintiff, v. NAPERVILLE COMMUNITY UNIT SCHOOL DISTRICT 203, DAN BRIDGES,NANCY VOISE, ERIN ANDERSON, SUSAN VIVIAN, ANDREA SZCZEPANSKI,RACHEL WEISS, KRISTIN FITZGERALD, DONNA WANDKE, CHARLES CUSH,KRISTINE GERICKE, JOSEPH KOZMINSKI, PAUL LEONG, JANET YANG ROHR,OTTOSEN BRITZ KELLY COOPER GILBERT & DINOLFO LTD, and JOE MILLER, Defendants.

19 C 6525

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

February 8, 2021

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

In November 2018, Abdul Mohammed filed a pro se suit (not this one) against Naperville Community Unit School District 203 and two of its employees, Erin Anderson and Susan Vivian, alleging violations of 42 U.S.C. § 1983, the Illinois Hate Crimes Act ("IHCA"), 720 ILCS 5/12-7.1, and Illinois common law. Mohammed v. Anderson, No. 18 C 8393 (N.D. Ill. removed Dec. 21, 2018) ("Mohammed I"), ECF No. 1-1. The defendants ultimately moved for sanctions based on Mohammed's misconduct. Id., ECF No. 98. The court granted the motion and dismissed the suit with prejudice. Id., ECF Nos. 117-119 (reported at 2019 WL 3943669 (N.D. Ill. Aug. 21, 2019)). The Seventh Circuit affirmed. Mohammed v. Anderson, ___ F. App'x ___, 2020 WL 6495522 (7th Cir. Nov. 5, 2020); cf. Mohammed v. NLRB, No. 20-3178 (7th Cir. Jan. 11, 2021) (barring Mohammed from "proceeding in forma pauperis in any new or pending case, in the district court or court of appeals, until he has paid, in full, all outstanding fees and costs for all ofhis lawsuits"); In re Mohammed, No. 20 C 3479 (N.D. Ill. Aug. 13, 2020) (imposing a 12-month filing bar on any new civil lawsuits by Mohammed in this District), aff'd, ___ F. App'x ___, 2021 WL 218317, at *1 (7th Cir. Jan. 21, 2021) (holding that "the Executive Committee reasonably disciplined Mohammed for abusive litigation practices").

Less than three weeks after the dismissal of Mohammed I, Mohammed filed this suit against the School District, Anderson, Vivian, and several new defendants: four more School District employees, the seven members of the School Board, the law firm Ottosen Britz Kelly Cooper Gilbert & Dinolfo Ltd., and Joe Miller, an attorney at the firm. Doc. 1-1. (Docket entries in this suit are cited as Doc. ___, while docket entries in Mohammed I are cited as Mohammed I, ECF No. ___.) In addition to claims dismissed in Mohammed I, this suit alleges violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and other violations of § 1983, the IHCA, and Illinois common law. Doc. 1-1. Defendants move under Civil Rule 12(b)(6) to dismiss this suit. Docs. 17, 19.

The court acts on its own motion to dismiss the claims that the judgment in Mohammed I bars under the claim preclusion doctrine. (Ottosen Britz and Miller seek dismissal on collateral estoppel, or issue preclusion, grounds, Doc. 17 at 8-10, but issue preclusion differs from claim preclusion, and the latter better fits the present circumstances.) Defendants' motions to dismiss are denied as moot insofar as they challenge the precluded claims on other grounds. The motions otherwise are granted in part and denied in part.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative complaint's well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Mohammed's briefs opposing dismissal, so long as those additional facts "are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted). The law requires the court to set forth the facts as favorably to Mohammed as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy—which means that the court sets forth those facts not because it finds them to be true, but only because Mohammed alleges them. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).

On April 3, 2016, Mohammed's wife was arrested for domestic battery after she attacked and injured him with her cell phone. Doc. 1-1 at ¶ 8. Mohammed suffered a traumatic brain injury, requiring him to see a neurologist, neuropsychologist, and psychiatrist. Id. at ¶ 2.

On January 17, 2017, Mohammed entered into an agreement with Defendants providing that Vivian, a school counselor, would not provide counseling to his children. Id. at ¶ 13; Doc. 39 at 20. On February 19, Defendants caused reports to be filed with various state agencies falsely alleging that Mohammed physically and sexually abused his children. Doc. 1-1 at ¶ 14. On February 22, in violation of their agreement with Mohammed, Defendants encouraged Vivian to counsel his children, and she continued to do so until May 2017. Id. at ¶ 16. Through that counseling, Vivian and Rachel Weiss, another School District employee, "brainwashed" Mohammed's children into believing that he was a child molester, that he had raped their mother, and that they should not go near him. Id. at ¶¶ 4, 18.

Mohammed asked the School District to provide him with the background check reports conducted on its school bus drivers due his concern—based on a television news report—that many school bus drivers had criminal histories. Id. at ¶¶ 22-23. In a December 4, 2018 email, Nancy Voise, the School District's Assistant Superintendent, told Mohammed that she could not provide personal information about the School District's bus drivers at that time. Id. at ¶ 24.

Since March 2019, Defendants have forbidden Mohammed from dropping off lunch for his son at school, something he had done without incident for three years before filing Mohammed I. Id. at ¶¶ 35-36. As a result, Mohammed's son has been deprived of lunch. Id. at ¶¶ 37-38. Other parents are allowed to drop off their children's lunches. Id. at ¶¶ 149, 151.

Discussion

Mohammed's twenty-five-count complaint asserts seven counts under 42 U.S.C. § 1983 (Counts 2-4, 8, 19-20, 22), four counts under the Rehabilitation Act (Counts 14-17), one count under the ADA (Count 18), four counts under the IHCA (Counts 5-7, 21), and nine counts under Illinois common law (Counts 1, 9-13, 23-25). Apart from Counts 10 and 11, which name only the School District, Mohammed brings every count against all Defendants.

I. Respondeat Superior Claim and Good Faith and Fair Dealing Claim

Two of the complaint's counts are labeled respondeat superior and covenant of good faith and fair dealing. Doc. 1-1 at ¶¶ 116-118 (Count 10), 162-168 (Count 24). Although those terms describe legal concepts, neither is a cause of action under Illinois law. See Wilson v. Edward Hosp., 981 N.E.2d 971, 980 (Ill. 2012) (holding that "vicarious liability is not itself a claim or cause of action"); Zeidler v. A & W Rests., Inc., 301 F.3d 572, 575 (7th Cir. 2002) ("The covenant [of good faith and fair dealing] is only an aid to interpretation, not a source of contractual duties or liability under Illinois law."). Those counts accordingly are dismissed.

II. Claims Against Szczepanski, Fitzgerald, Wandke, Cush, Gericke, Kozminski, Leong, and Rohr, and Monell Claims Against the School District

The claims against eight individual School District defendants—Andrea Szczepanski, Kristin Fitzgerald, Donna Wandke, Charles Cush, Kristine Gericke, Joseph Kozminski, Paul Leong, and Janet Yang Rohr—are dismissed for a simple reason: Mohammed makes no factual allegation as to anything they did. The only allegations in the complaint as to those individuals are that they are employed by the School District (Szczepanski) or sit on the School Board (the other seven). Doc. 1-1 at ¶ 4.

Starting with the § 1983 claims, Defendants assume that Mohammed sues them in both their individual and official capacities. Doc. 20 at 28 (asserting a qualified immunity defense, which implies individual capacity); id. at 14 (asserting that the claims are barred by Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), which implies official capacity). For individual capacity claims, "§ 1983 liability is premised on the wrongdoer's personal responsibility." Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012). This means that a plaintiff must allege how each defendant "caused or participated in the alleged deprivation of the plaintiff's constitutional rights." Levin v. Madigan, 692 F.3d 607, 621 (7th Cir. 2012). The complaint alleges nothing about Szczepanski, Fitzgerald, Wandke, Cush, Gericke, Kozminski, Leong, or Rohr, so the § 1983 claims against them in their individual capacities are dismissed.

The lack of any allegations about the school board members also dooms all Monell claims against the School District and all official capacity claims against individual School District defendants. The Monell claims and official capacity claims are legally identical: "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). The School District argues that the complaint fails to allege any of the three bases for Monell liability: "[1] an express policy, [2] a widespreadpractice which, although unwritten, is so entrenched and well-known as to carry the force of policy, or ... [3] the actions of an individual who possesses the authority to make final policy decisions on behalf of the municipality or corporation." Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012). Far from alleging a policy or practice, Mohammed alleges that he was singled out for unfavorable treatment. Doc. 1-1 at ¶¶ 31-32, 149, 151....