Moore v. Freeport Cmty. Unit Sch. Dist. No. 145
| Decision Date | 08 November 2021 |
| Docket Number | 3:21-cv-50036 |
| Parties | Rebecca MOORE, individually and as natural guardian and next friend to Jane Doe, Plaintiffs, v. FREEPORT COMMUNITY UNIT SCH. DIST. NO. 145; Anna Alvarado, individually and in an official capacity as Superintendent of the District ; Nita White, individually and as agent; Derrick Allen, individually and as agent; Stacy Green, individually and as agent; Carmen Madigan, individually and as agent; and John/Jane Does 1-10, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
George P. Hampilos, Hampilos & Langley, Ltd., Rockford, IL, for Plaintiffs.
K. Austin Zimmer, Cynthia Sara Grandfield, Del Galdo Law Group, LLC, Berwyn, IL, for Defendants Freeport Community Unit School District No. 145, Anna Alvarado, Jennifer DeJong, Nita White, Derrick Allen, Stacy Green, Carmen Madigan.
Moore brings suit on behalf of her daughter, Jane Doe, a minor, against Freeport Community Unit School District No. 145, and various staff and administrators for violations of 20 U.S.C. §§ 1681 - 1688 ("Title IX"), 42 U.S.C. § 1983, and state law claims of negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress related to the student-on-student sexual assault and sexual harassment of her daughter who was in kindergarten. Defendants’ motion to dismiss [20] is granted in part and denied in part.
Jane Doe was a kindergarten student at Jones-Farrar International World School ("the School") in Freeport Community Unit School District No. 145 ("the District") for the 2019-2020 school year. Dkt. 1, ¶¶ 1, 18. Derrick Allen, Doe's teacher, noticed she began experiencing behavioral issues during the week of November 18, 2019. Id. ¶ 19. Moore, Doe's mother, similarly noticed she began to act "disengaged and angry" and that she became "sullen and introverted when her mother asked what was troubling her." Id. ¶ 20. Doe revealed to her mother that one of her classmates, a boy ("JJ") "was picking on her and being mean," eventually disclosing to her mother that he had "touched her underwear, inside her pants." Id. ¶¶ 21-24. Doe told her mother that JJ touched her on three different occasions throughout the school day, occurring in her main classroom, their Spanish classroom, and the School library while teachers Allen and Stacy Green were present. Id. ¶ 24.
On November 22, 2019, Moore called Allen and reported what Doe said had happened; Allen said he would contact Principal DeJong. Id. ¶¶ 26, 28. Moore took her daughter to the Emergency Room for an examination, and medical staff reported the incidents to the Illinois Department of Children and Family Services, as well as local law enforcement. Id. ¶¶ 29-30. Doe complained of her stomach hurting and pain when she urinated, as well as loss of appetite and fever. Id. ¶¶ 31-32. The Emergency Room determined that Doe had a urinary tract infection
and prescribed an antibiotic. Id. ¶ 33. Doe had trouble sleeping that night, complained of nightmares, and told Moore she never wanted to go back to school. Id. ¶¶ 34-35. Over the next few days, Doe continued having difficulty sleeping, frequently burst into tears without provocation, and told Moore she did not want to go to school or be hurt by JJ again. Id. ¶¶ 36-38.
Principal DeJong called Moore to inform her of the "safety plan" the School would put in place, wherein JJ would be kept separate from Doe and he would never be without adult supervision at school. Id. ¶¶ 39-40. Doe did not attend school for the next two days because of her fever resulting from the infection, and the School was closed the rest of the week for the Thanksgiving holiday. Id. ¶¶ 41-42. During this time, she continued to suffer from nightmares, disturbed sleep, and periods of inconsolable crying. Id. ¶ 44.
Doe returned to School on December 2, 2019, based on the reassurances of DeJong. Id. ¶ 45. Moore walked Doe into school that day and observed JJ in the hallway, unsupervised, with another female student. Id. ¶ 46. Doe began to panic, but Principal DeJong reassured Moore that the "safety plan" would be implemented. Id. ¶¶ 47-48. From December 2 through December 6, Doe reported seeing JJ daily; at these times, JJ he called her names. Id. ¶ 51. Doe alleges that a teacher was nearby whenever this happened (Allen was out that week, with Carmen Madigan acting as his substitute) and that the teachers did nothing to stop JJ's behavior. Id. ¶¶ 52-53. During the School's Christmas Program on December 7, 2019, Moore witnessed Defendants place JJ near Doe, contrary to the "safety plan." Id. ¶ 54.
During the month of December, JJ continued calling Doe names at school. Id. ¶ 55. Additionally, Doe reported that other students joined JJ in sexually harassing her by saying she was a "boy" and that she "had a penis." Id. ¶ 56. Moore scheduled counseling services for Doe, which were not able to begin until December 31, 2019. Id. ¶ 77. On December 19, 2019, Moore again contacted Allen regarding the bullying by both boys and girls in her class, as well as Doe's continuing to see JJ on a daily basis. Id. ¶ 57. The next day, Allen called Moore to pick up Doe from school because she had been acting out during an assembly; Doe told Moore that she was being teased and tormented by JJ and others, and that no one at the school would do anything to help. Id. ¶¶ 58-59. That was the final day of school before winter break, and the last day that Doe attended the School. Id. ¶ 60. At no point did any Defendants speak with Doe about what JJ had done to her or about any of the continued bullying and harassment. Id. ¶ 73. Defendants never investigated the situation. Id. ¶ 74.
Moore arranged for Doe to attend a private school beginning on January 2, 2020. Id. ¶¶ 61-62. Doe began weekly counseling sessions at this time, and continues having weekly counseling. Id. ¶ 78. Doe also continues to suffer from nightmares and panic attacks as a result of trauma, even so far as taking medication to help her sleep so she is not so tired during the day. Id. ¶¶ 81-82, 85. One panic attack occurred at her new school when she saw a picture of a boy pulling a girl's hair. Id. ¶ 84. Doe finished the school year at the new school, and the school recommended she repeat kindergarten for the 2021-2022 school year due to her trauma resulting from the situation with JJ in the fall of 2019. Id. ¶¶ 63-66.
Meanwhile, Moore sought answers from the School and the District. On January 6, 2020, Moore requested a meeting with District Superintendent Anna Alvarado, but was instead directed to meet with District Director of Equity, Nita White. Id. ¶¶ 66-67. White spoke with Moore later that day and said she would investigate the situation, only to later explain that she could not discuss anything with Moore because Doe was no longer enrolled in the District schools. Id. ¶¶ 69-71. White suggested Moore submit a request for payment of Doe's medical bills to the district via email and offered to forward that request to the appropriate office. Id. ¶ 72. Moore also became aware that as of February 4, 2020, JJ was being accompanied by an aide at all times while in School. Id. ¶ 86. Moore further states that she has had to miss work to take Doe to counseling and occasionally to pick Doe up from school when she had panic attacks. Id. ¶ 91.
Moore filed this lawsuit on January 29, 2021, alleging violations of Title IX, Section 1983, and state law torts of negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6).
Rule 8 requires a plaintiff to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Under Rule 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement must give the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly , 550 U.S. at 555, 127 S.Ct. 1955. A plaintiff's well-pleaded factual allegations must allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The complaint must also plausibly suggest that the plaintiff is entitled to relief, which "is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The federal pleading standard does not require the plaintiff to plead every element; plaintiff need only plead enough facts to elevate his claim from conceivable to plausible. Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ; Bennett v. Schmidt , 153 F.3d 516, 518 (7th Cir. 1998) (). The Court accepts as true all of the plaintiff's well-pleaded allegations and draws all reasonable inferences in the light most favorable to the plaintiff. See Calderone v. City of Chicago , 979 F.3d 1156, 1161 (7th Cir. 2020) ; Landmark Am. Ins. Co. v. Deerfield Constr., Inc. , 933 F.3d 806, 809 (7th Cir. 2019). The movant bears the burden on a motion to dismiss. Gunn v. Cont'l Cas. Co. , 968 F.3d 802, 806 (7th Cir. 2020).
Defendants move to dismiss Count I against the District for failure to state a claim upon which relief can be granted. Dkt. 20, at 3-4. Under Title IX claims based on student-on-student harassment, schools and districts that receive federal funding are "liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or...
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