S.J. Sr v. Perspectives Charter Sch. D/b/a, Case No. 09 C 444.

• Decision Date: 09 February 2010
• Docket Number: Case No. 09 C 444.
• Citation: 685 F.Supp.2d 847
• Parties: S.J. Sr., on her own behalf and as next friend for SJ. Jr., Plaintiff, v. PERSPECTIVES CHARTER SCHOOL d/b/a, Perspectives—Calumet Middle School, Tamara Davis, Elena Fitch, Ms. Bowen a/k/a Hill, City of Chicago, Unknown Chicago Police Officer Jane Doe, and the Chicago Board of Education, Defendants.
• Court: U.S. District Court — Northern District of Illinois

685 F.Supp.2d 847

S.J. Sr., on her own behalf and as next friend for SJ. Jr., Plaintiff,

v.PERSPECTIVES CHARTER SCHOOL d/b/a, Perspectives—Calumet Middle School, Tamara Davis, Elena Fitch, Ms. Bowen a/k/a Hill, City of Chicago, Unknown Chicago Police Officer Jane Doe, and the Chicago Board of Education, Defendants.

Case No. 09 C 444.

United States District Court,

N.D. Illinois,

Eastern Division.

Decided: Feb. 9, 2010.

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James Russell Fennerty, James R. Fennerty & Associates, LLC, Robert W. Ludemann, Chicago, IL, for Plaintiff.

Shelli Lynn Anderson, Amy Kosanovich Dickerson, Scott Cruz, Franczek Radelet PC, Alfred Kirkland Murray, II, Richard J. Keating, Jr., Swanson, Martin & Bell LLP, Terrence Michael Burns, Daniel Matthew Noland, Molly E. Thompson Paul A. Michalik, Dykema Gossett Rooks Pitts PLLC, Chicago, IL, Kimberly D Fahrbach, Dykema Gossett Rooks Pitts PLLC, Lisle, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Plaintiff S.J. Sr., on her own behalf and as next friend for S.J. Jr. (collectively "S.J."), filed a twelve count Amended Complaint against Defendants Perspectives Charter School d/b/a PerspectivesCalumet Middle School ("Perspectives") Tamara Davis ("Davis"), Elena Fitch ("Fitch"), Ms. Bowen a/k/a Hill ("Bowen") the City of Chicago ("the City"), unknown Chicago police officer Jane Doe ("Doe"), and the Chicago Board of Education ("the Board"). Counts I through V of the Amended Complaint allege violations of 42 U.S.C. § 1983, specifically: (I) Fourth, Fifth and Fourteenth Amendment claims against Davis, Fitch, Bowen and Doe; (II) a Due Process "shocks the conscience" claim against Davis, Fitch, Bowen and Doe; (III) a Due Process special relationship or state created danger claim against all Defendants; (IV) a failure to intervene claim against Davis and Fitch; and (V) a Monell failure to train claim against Perspectives, the Board and the City. A second Count V¹ and Counts VI through XII allege violations of state law, specifically: (V) state law assault and battery against Bowen and Doe; (VI) wilful and wonton retention and supervision claim against Perspectives; (VII) intentional infliction of emotional distress against Davis, Fitch, Bowen and Doe; (VIII) premises liability against the Board; (IX) false imprisonment against Davis, Fitch, Bowen and Doe; (X) violations of the Illinois Civil Rights Act against all Defendants; (XI) a respondeat superior claim against Perspectives; and (XII) an indemnification claim against Perspectives.

Pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), Perspectives, Davis, Fitch and the Board move this Court to dismiss S.J's Amended Complaint in its entirety. Additionally, pursuant to Rule 12(b)(6), the City moves to dismiss Counts III, VI and X of S.J.'s Amended Complaint. For the reasons stated below, the Court dismisses with prejudice: Counts I, II, III, V, and IX with respect to Davis and Fitch; Count III with respect to Perspectives, the Board, and the City; Count IV in its entirety; Count V with respect to Perspectives and the Board; Count VI with respect to Per- spectives and the City (the failure to supervise component only); Count VII with respect to Davis and Fitch; Count VIII with respect to the Board; Count X with respect to the City, Perspectives, Davis and Fitch; and Count XI against Perspectives with respect to the § 1983, false imprisonment and IIED claims.

BACKGROUND

The following facts are taken from S.J.'s Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). S.J. Jr. is a minor female who, at the time of the alleged incident, attended 8th grade at Perspectives-Calumet Middle School. Amend. Cmplt. ¶ 15. Perspectives is a not-forprofit corporation that operates Calumet Middle School, a public school, on property owned by the Board. Amend. Comp. ¶¶ 6-8. The Board is owned and operated by the City. Amend. Cmplt. ¶ 14. Perspectives employed Davis as Principal at Calumet Middle School, Fitch as the Dean of Students, and Bowen as a security guard. Amend. Cmplt. ¶¶ 9-11. The City employed Doe as a police officer. Amend. Cmplt. ¶ 13.

On or about December 15, 2008, Bowen and Doe conducted a search of S.J. Jr, making her remove her shirt, undershirt, pants and shoes. Amend. Cmplt. ¶ 18. While conducting this search, Doe patted S.J. Jr.'s sock-covered feet while Bowen shook the bra she was wearing. Amend. Cmplt. ¶¶ 19-20. This search was conducted at the direction of Davis and Fitch, and S.J. Jr.'s parents were not notified of the search. Cmplt. ¶¶ 21-22.

STANDARD

When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true,... 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." See id. at 1950. A claim has facial plausibility when the factual content in the pleadings allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 1949. When addressing a state law claim, a federal district court in Illinois must attempt to predict how the Illinois Supreme Court would decide that particular issue. See Allen v. Transamerica Ins. Co., 128 F.3d 462, 466 (7th Cir.1997); Boer v. First Options of Chicago, Inc., 72 F.3d 1294, 1301 (7th Cir.1995).

DISCUSSION

I. Qualified Immunity of Davis and Fitch in Counts I-V

Davis and Fitch move to dismiss S.J.'s § 1983 claims in Counts I-V pursuant to the doctrine of qualified immunity. "Governmental actors performing discretionary functions are entitled to qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Sal- lenger v. Oakes, 473 F.3d 731, 739 (7th Cir.2007) (quoting Harlow v. Fitzgerald 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In the school context specifically, "[a] school official searching a student is 'entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment.'" Safford Unified School District v. Redding, — U.S. —, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009) (quoting Pearson v. Callahan, — U.S —, 129 S.Ct. 808, 822, 172 L.Ed.2d 565 (2009)). To overcome qualified immunity, a plaintiff must show that the alleged conduct gives rise to a constitutional violation, and that the right was clearly established at the time of the violation. See Tun v. Whitticker, 398 F.3d 899, 901-02 (7th Cir. 2005). To be clearly established, "the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 902. District courts may exercise discretion in deciding which of these two prongs to address first. See Pearson, 129 S.Ct. at 818 ("The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of qualified immunity analysis should be addressed first.").

Here, addressing the clearly established prong first, the Court finds that S.J. cannot show that the law regarding school strip searches was clearly established at the time of the alleged search, on December 15, 2008. In New Jersey v. T.L.O., the Supreme Court held that "[a search] will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in the light of the age and sex of the student and the nature of the infraction." 469 U.S. 325, 342, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The Supreme Court recently examined the lower courts' treatment of T.L.O. and found that: "the cases viewing school strip searches differently from the way we see them are numerous enough, with well reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in our prior statement of law," making it "impossible 'to establish clearly the contours of a Fourth Amendment right.' " See Safford, 129 S.Ct. at 2644. Although it found the strip search at issue unreasonable in violation of the Fourth Amendment, the Court held that the school officials were entitled to qualified immunity because the constitutional standards surrounding strip searches were not clearly established. Id. at 2644 ("We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case.").

S.J. argues that even if the law regarding school strip searches was not clearly established on a national level at the time of the search of S.J. Jr., it was clearly established within the Seventh Circuit. In support of this position, S.J. incorrectly asserts that "as recently as 2006, the Seventh Circuit denied qualified immunity in a school strip search case." (R. 71 at 7.) However, the case S.J. relies on for this proposition is not a Seventh Circuit decision, but the district court decision in Carlson v. Bremen High School District 228, et al, 423 F.Supp.2d 823, 828 (N.D.I11.2006). The only Seventh Circuit decision that S.J....