IN THE DISTRICT COURT OF THE UNITED STATES

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DENARD AND LAJUAN WADE, collectively )

and on behalf of their minor son, DARIUS WADE, )

Plaintiffs, )

)

v. ) Case No. 12 CV 2276

)

BOARD OF EDUCATION OF PROVISO )

TOWNSHIP HIGH SCHOOLS DISTRICT 209, )

PROVISO TOWNSHIP HIGH SCHOOLS )

DISTRICT 209, MILTON PATCH, in his capacity )

as Principal of Proviso East High School, DANIEL )

JOHNSON, in his capacity as Assistant Principal, )

of Proviso East High School, EMMANUEL )

WELCH, in his capacity as School Board 209 )

President, JEANETTE THOMAS, COOK )

COUNTY SHERIFF MICHAEL TOM DART )

and, the COOK COUNTY SHERIFF’S POLICE )

DEPARTMENT and MICHAEL CASTALDO, JR., )

Defendants. )

DEFENDANTS’ MOTION TO DISMISS PURSUANT

TO FED.R. CIV. P. 12(b)(6), 12(f) and 17

NOW COME Defendants, BOARD OF EDUCATION OF PROVISO TOWNSHIP 

HIGH SCHOOLS DISTRICT 209 (“Board”), PROVISO TOWNSHIP HIGH SCHOOLS 

DISTRICT 209 (“District”), and MICHAEL CASTALDO, JR. (“Castaldo”) (collectively, “School 

Defendants”)

1 by their attorney Eric T. Stach of DEL GALDO LAW GROUP, LLC, and for their 

Motion to Dismiss pursuant to Fed.R.Civ.P 12(b)(6), 12(f), and 17, and state as follows:

Introduction

Plaintiffs Denard and LaJuan Wade, individually and on behalf of their son Darius Wade (on 

9/23/2009 a minor) allege multiple claims against School Defendants stemming from Darius 

 1 Other defendants affiliated with the District but not yet served, and for whom Plaintiffs have not issued Requests for 

Waiver of Service, include current District employees Milton Patch and Daniel Johnson, and retired/former District 

employee Jeanette Thomas.

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 1 of 15 PageID #:46
2

Wade’s physical altercation involving a teacher, which resulted in Wade’s expulsion from the 

District. Amended Complaint ¶¶ 1-2, 7-8, 19-25, 38. Plaintiffs’ claims against School Defendants 

are here listed and should be dismissed pursuant to Fed.R.Civ.P 12(b)(6): (I) 42 U.S.C. § 1983 

Substantive Due Process, (II) 42 U.S.C. § 1983 Procedural Due Process, (III) Violation of Equal 

Protection, (IV) Violation of Equal Protection “Class of One”, (VI) Eighth Amendment Cruel and 

Unusual Punishment, and (VII) Conspiracy to Violate Civil Rights. Plaintiffs also allege against the 

District and Board a state claim of “Negligent Training and Supervision,” which must be barred by 

the Illinois Local Governmental and Governmental Employee Tort Immunity Act (“Tort Immunity 

Act”) 745 ILCS 10/1-101, et seq. Count III should also be dismissed as generally duplicative of 

Count IV. To conform with F.R.C.P. 17, Denard Wade and LaJuan Wade should be dismissed from 

the Amended Complaint as improper plaintiffs, and Darius Wade should be named as sole proper 

plaintiff. Counts V and VIII are pled against defendants other than the School Defendants (the 

Cook County parties) and as such are not here addressed.

Standard

The United States Supreme Court in Ashcroft, et al. v. Iqbal, 129 S. Ct. 1937 (2009), clarified 

the civil pleading standards governing federal claims. Where a plaintiff has not plead facts which 

would permit the court to infer more than the mere possibility of misconduct, a plaintiff has alleged, 

but not demonstrated that he is entitled to relief, and therefore, his complaint will fail. Ashcroft, et al., 

129 S. Ct. at 1949. A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. 

This plausibility standard asks for more than a sheer possibility that a defendant acted unlawfully. Id. 

Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, “it stops 

short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 2 of 15 PageID #:47
3

For purposes of a motion to dismiss, the Court must accept as true all of the factual 

allegations of the complaint. Id. However, the Court is not to accept as true, legal conclusions even 

if couched as a factual allegation. Id. “While legal conclusion can provide the framework of a 

complaint, they must be supported by factual allegations.” Id. Only a complaint that states a 

plausible claim for relief survives a motion to dismiss. Id. at 1949. If, under a liberal reading of the 

complaint, a plaintiff’s allegations are not legally sufficient to state a claim upon which relief can be 

granted, the Court should dismiss the complaint. See Conley v. Gibson, 355 U.S. 41, 45 (1957) 

(applying a liberal standard to the review of Plaintiff’s complaint); Gibson v. City of Chicago, 910 F.2d 

1510, 1520 (7th Cir. 1990) (finding Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a complaint). 

And, if the Court finds that no set of facts can be pleaded to state a claim, then the Court should 

dismiss the case.

Argument

I. All § 1983 actions against all School Defendants are Barred by res judicata and 

must be dismissed.

The § 1983-based counts (Counts I-IV, VI, VII) must be dismissed with prejudice as barred 

by res judicata because Plaintiffs already challenged the School Defendants’ decision in Illinois state 

court on Administrative Review as Case No. 2009-CH-42857 before the Honorable Judge Leroy 

Martin Jr. See Amended Complaint generally ¶40. See also 7/16/2010 and 10/28/2010 2009-CH42857 Court Orders (certified copies) attached hereto as Group Exhibit A (Courts can properly 

take judicial notice of court records without converting a motion to dismiss into a motion for 

summary judgment. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 

1997); Doss v. Clearwater Title Co. ̧551 F.3d 634, 640 (7th Cir. 2008)).

The Seventh Circuit made very clear in 2001 that an administrative-review action forecloses 

any later § 1983 action in federal court arising out of the same transaction:

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 3 of 15 PageID #:48
4

Because Illinois (a) permits the joinder of § 1983 claims with administrative-review 

actions, and (b) applies the doctrine of merger and bar, we have held that an 

administrative-review action forecloses any later § 1983 action in federal court arising 

out of the same transaction. See, e.g., Manley v. Chicago, 236 F.3d 392 (7th Cir. 2001); 

Davis v. Chicago, 53 F.3d 801 (7th Cir. 1995); Pirela v. North Aurora, 935 F.2d 909, 913-

14 (7th Cir. 1991); Hagee v. Evanston, 729 F.2d 510, 513-14 (7th Cir. 1984). See also 

Charles Koen & Associates v. Cairo, 909 F.2d 992 (7th Cir. 1990); Button v. Harden, 814 

F.2d 382 (7th Cir. 1987); Frier v. Vandalia, 770 F.2d 699 (7th Cir. 1985).

Durgins v. City of E. St. Louis, 272 F.3d 841, 843-844 (7th Cir. Ill. 2001)

All of the elements of res judicata are satisfied in this case. The final orders by the Circuit 

Court of Cook County were final judgments. Wade’s federal case focuses on the same set of 

operative facts and could have been brought in the state court action. Therefore, Counts I-IV, VI,

and VII must be dismissed with prejudice as to the School Defendants.

II. The District should be dismissed from Counts I-IV, VI, VII, and IX on 

grounds of redundancy.

Plaintiffs name the District and the Board as Defendants. Because a lawsuit against a 

government official in his or her official capacity is redundant when the government entity is also 

named, such claims should be dismissed. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Jungels v. 

Pierce, 825 F.2d 1127, 1129 (7th Cir. 1987); Kiser v. Naperville Comm. Unit, 227 F. Supp.2d 954, 

960-61 (N.D. Ill. 2002) (dismissed ADEA claims against board of education members sued in their 

official capacities); Admiral Theatre v. City of Chicago, 832 F. Supp. 1195, 1199-1200 (N.D. Ill. 

1993)(dismissed 42 U.S.C. § 1983 claims against mayor and director sued in their official capacities). 

According to Illinois law, the District is a geographical area in which the Board operates 

schools. See 105 ILCS 5/1-3; Bd. Of Educ. Of Bremen High Sch. Dist. No. 228 v. Mitchell, 899 

N.E.2d 1160, 1163 (Ill. App. Ct. 2008). Moreover, the Illiois School Code makes the Board, not the 

Distirct amenable to suit. See 105 ILCS 5/10-2. Thus, the Board not the District is the proper 

defendant in this suit. The District should be dismissed from Counts I-IV, VI, VII, and IX as an 

unnecessary, redundant Defendant.

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 4 of 15 PageID #:49
5

III. The District/Board (and all District employees) should be dismissed from all 

Civil Rights counts for failure to state a Monell claim (As to Counts I-IV, VI, 

VII, and IX).

Plaintiff alleges that the School Defendants violated Darius Wade’s civil rights. To 

successfully plead a cause of action under § 1983 against the District or its employees, a plaintiff 

must allege: (a) unconstitutional conduct perpetrated by a school employee; (b) that the 

unconstitutional conduct was the result of the school’s existing policy or customs; and (c) that a 

causal link exists between the unconstitutional action and the plaintiff’s injury. Monell v. Dep’t of Soc. 

Servs., 436 U.S. 658, 692-94 (1978); McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). In 

other words, it is when the execution of a government’s policy inflicts the injury that the entity is 

responsible under § 1983. Woodward v. Correctional Med. Serv. of Illinois, Inc., 386 F.3d 917, 927 (7th Cir. 

2004). Further, actions brought against government officers in their official capacities are actually 

claims against the government entity for which the officers work. Kentucky v. Graham, 473 U.S. 159, 

167 (1985). Specifically, a plaintiff must show that his constitutional rights were violated and that a 

“custom, policy, or practice” of the defendant directly caused the violation. Monell v. New York City 

Dept. of Social Services, 436 U.S. 658 (1978). A custom, policy, or practice may be demonstrated 

through: (1) an express policy that causes a constitutional deprivation when enforced; (2) a 

widespread practice that is so permanent and well-settled that it constitutes a custom or practice; or 

(3) an allegation that the constitutional injury was caused by a person with final policymaking 

authority. Id. Respondeat superior will not suffice to impose § 1983 liability on a school. McTigue v. 

City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).

More importantly, a plaintiff must demonstrate that the local government, through its own 

deliberate conduct, was the moving force behind the alleged injury. County Comm ‘r of Bryan County v. 

Brown, 117 S. Ct. 1382, 1388 (1997); Polk County v. Dodson, 102 S. Ct. 445 (1981). 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 5 of 15 PageID #:50
6

In the case at hand, Plaintiff fails to make any allegation of any School Defendant custom, 

policy, or practice that caused the alleged injury. Absent in the Amended Complaint is any mention 

by Plaintiff of an express policy of a constitutional deprivation enforced by the School Defendants, 

or a well-settled practice that caused any deprivation of rights. Moreover, Plaintiff has not alleged 

that a person with final policymaking authority caused a constitutional injury. Therefore, Plaintiff 

has made no assertion that such liability exists against the District. Therefore, Counts I-IV, VI, VII, 

and IX must be dismissed with prejudice as against the District. 

IV. Defendant Castaldo is Entitled to Absolute Immunity as a Hearing Officer 

and Must Be Dismissed from Counts I-IV, and VII.

Plaintiff alleges that Defendant Castaldo served as the hearing officer for the Board on 

October 9, 2009. Amended Complaint ¶30. At the hearing it is alleged he heard testimony from a 

variety of witnesses, entered a preservation order of evidence, and issued the report of evidence to 

the Board. Amended Complaint ¶¶ 31-34. This was the fact-finding hearing at which evidence was 

offered by the parties resulting in the determination that Plaintiff had assaulted a mathematics 

teacher. Castaldo’s actions s hearing officer were all in accordance in and authorized by the Illinois 

School Code, which summarizes as follows: 

Expulsion shall take place only after the parents have been requested to appear at a 

meeting of the board, or with a hearing officer appointed by it, to discuss their 

child’s behavior. .... If a hearing officer is appointed by the board he shall report to 

the board a written summary of the evidence heard at the meeting and the board 

may take such action thereon as it finds appropriate.

105 ILCS 5/10-22.6. (emphasis added)

Absolute immunity in civil rights cases applies to government officials like a prosecutor or 

judge; it also applies to officials performing “functionally comparable” acts in other contexts. This 

applies also to administrative hearing officers or adjudicators who perform quasi-judicial activities. 

Barker v. Vill. of Cahokia, 2007 U.S. Dist. LEXIS 58927 (S.D. Ill. Aug. 13, 2007) (See generally also: 

Imbler v. Pachtman, 424 U.S. 409, 421, 424-25 (1976); Henderson v. Lopez, 790 F.2d 44, 45 (7th Cir. 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 6 of 15 PageID #:51
7

1986); See, e.g., Wolf v. Carey, 438 F. Supp. 245 (N.D. Ill. 1977); Hughes v. Krause ̧2008 U.S. Dist. 

LEXIS 32517 (N.D. Ill. 03/31/2008); 2008 U.S. Dist. LEXIS 54461 (N.D. Ill. 07/17/2008).)

A Northern District of Illinois court held in 2001 that a hearing officer who conducted an 

employee termination hearing through the Illinois Department of Corrections was afforded absolute 

immunity, even though accused of alleged bias in conducting it. Burks v. DeTella, 2001 U.S. Dist. 

LEXIS 6640, 2-3 (N.D. Ill. May 17, 2001)(citing Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir. 

1999) (“Officers and agencies that perform quasi-judicial functions are entitled to absolute immunity 

in order to protect their decision-making function from being impeded by fear of litigation or 

personal monetary liability.”); see also Thompson v. Duke, 882 F.2d 1180, 1185 (7th Cir. 1989). The 

hearing officer there was entitled to absolute immunity for his actions and all claims against him 

dismissed. Burks v. DeTella, 2001 U.S. Dist. LEXIS 6640, 6-7 (N.D. Ill. May 17, 2001). Case law is 

fraught with decisions affording absolute immunity to these hearing officers as the actions are 

adjudicatory in nature:

Judges have absolute immunity from money damages. Stump v. Sparkman, 435 U.S. 

349, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978). This immunity covers all judicial acts. 

Id. In Butz v. Economou the court extended absolute immunity to federal officials 

performing functions comparable to those of judges, such as hearing officers and 

administrative law judges. 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895, (1978). 

This quasi judicial immunity has been further extended to state agency officials 

involved in adjudication of state regulatory matters. See e.g., Wilson v. Kelkhoff, 86 

F.3d 1438, 1443 (7th Cir. 1996). In Butz the Supreme Court stated that ‘judges have 

absolute immunity not because of their particular location within the Government 

but because of the special nature of their responsibilities,’ 438 U.S. at 511, ‘and from 

the characteristics of the judicial process.’ Id. at 512. The Court considered the nature 

of the hearing examiner and administrative law judges’ responsibilities and 

determined that, like judges, these officials must be free ‘to perform their respective 

functions without harassment or intimidation.’ Id.

Tobin for Governor v. Illinois State Bd. of Elections, 1999 U.S. Dist. LEXIS 22108, 9-10 

(N.D. Ill. Dec. 7, 1999)

Here, Castaldo is entitled to absolute immunity when functioning as a hearing officer. The 

entire process was adjudicatory in that Castaldo took evidence, heard witnesses, made rulings to 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 7 of 15 PageID #:52
8

preserve evidence, and so forth. Amended Complaint ¶¶ 30-34. The entire purpose of the hearing 

was to address the issue of battery by a student against a teacher. These actions directly relate to 

actions of Castaldo as hearing officer entitle him to absolute immunity; he should be dismissed with 

prejudice from this entire matter. 

V. School Defendants Must Be Dismissed from Count II because Plaintiff was 

Afforded Sufficient Procedural Due Process as Plead.

As plead, Plaintiff was afforded all requisite procedural due process as required by the 

Illinois School Code and related case law for a school administrative hearing of this nature resulting 

in expulsion. Plaintiffs fail to plead anything that contravenes the minimum standard of procedures 

required. Darius was immediately suspended for his actions; a disciplinary hearing was held, 

testimony given, a preservation order entered, the Board made a decision on the hearing, resulting in 

expulsion. See Amended Complaint generally ¶¶ 28-36. A 1970 Eastern District decision affirmed 

the constitutionality of the Illinois School Code (105 ILCS 5/10-22.6) as sufficient procedures were 

afforded a defendant in this setting:

The test of whether or not one has been afforded procedural due process is 

one of fundamental fairness in the light of the total circumstances. No particular 

method of procedure is required for due process, but what is required is: (1) 

Adequate notice of the charges; (2) Reasonable opportunity to prepare for and meet 

them; (3) An orderly hearing adopted to the nature of the case; and (4) A fair and 

impartial decision. Buttny v. Smiley, 281 F. Supp. 280 (D.C.D. Colo., 1968).

The power of school boards in Illinois in regard to expulsion or suspension 

of students is found in Section 10-22.6, Chapter 122, Illinois Revised Statutes.

Whitfield v. Simpson, 312 F. Supp. 889, 894 (E.D. Ill. 1970)

Plaintiffs allege nothing that Darius Wade’s expulsion hearing and related actions by School 

Defendants in any fashion violated these basic fundamental procedures.

“The fundamental requisite of due process is the opportunity to be heard. The hearing must 

be at a meaningful time and in a meaningful manner. * * * The type of administrative hearing here 

involved need not take the form of a judicial or quasi-judicial trial. Due process in the context here 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 8 of 15 PageID #:53
9

involved is not to be equated, as appellant urges, with that essential to a criminal trial or a juvenile 

court delinquency proceeding.” Linwood v. Board of Education, 463 F.2d 763, 769-770 (7th Cir. Ill. 

1972)(citations omitted); see also Betts v. Board of Ed. of City of Chicago, 466 F.2d 629, C.A.7 (Ill.),1972.

Plaintiff admits that a right to be heard at the disciplinary hearing occurred, and in fact did 

occur. Amended Complaint ¶ 31. Given Plaintiff’s inability to plead anything that could give rise to 

a procedural process claim, this count must be dismissed with prejudice as to all School Defendants.

VI. School Defendants Must Be Dismissed from Count III (Equal Protection 

generally) because Plaintiff fails to plead he is part of a protected class.

In Count III, Plaintiff alleges a boilerplate violation of equal protection with no hint 

whatsoever as to what protected class – race, gender, age, special needs, or otherwise – Plaintiff 

qualifies, let alone how other persons similarly-circumstanced are treated differently without 

legitimate public purpose. Equal protection claims must be plead to allege “charges of singling out 

members of a vulnerable group, racial or otherwise, for unequal treatment ...[or]... challenges to 

laws or policies alleged to make irrational distinctions.” Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir. 

Ill. 1995) Here in Count III, Plaintiff fails to assert he is a member of any vulnerable group, racial or 

otherwise, for unequal treatment, and does not challenge any of the schools law of policies in such 

fashion. Therefore, Count III must be dismissed as to all School Defendants.

Alternatively, Count III should be stricken as duplicative of the more particularized Count 

IV, pursuant to F.R.C.P. 12(f), which allows the Court to “strike from a pleading ... any redundant, 

immaterial, impertinent, or scandalous matter.”

VII. School Defendants Must Be Dismissed from Count IV (Equal Protection as 

“Class of One”) as it fails to meet Twombley standard.

In Count IV, Plaintiff does plead he is a “class of one.” This the Supreme Court does 

recognize as a potential equal protection violation. See Village of Willowbrook v. Olech, 528 U.S. 562, 

145 L. Ed. 2d 1060, 120 S. Ct. 1073 (2000). And in order to state a claim as a “class of one,” a 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 9 of 15 PageID #:54
10

plaintiff must allege that he “has been intentionally treated differently from others similarly situated 

and that there is no rational basis for the difference in treatment.” Id. at 564. Plaintiff does quote 

this exact boilerplate language in the Amended Complaint. Amended Complaint, p. 9, ¶¶ 58-59. 

Plaintiff fails to allege anything other than that the Board expelled him from the Illinois school 

system as a disciplinary measure (for assaulting a teacher) after a hearing, yet he does not plead 

anything about others similarly situated; he alleges nothing other than the bare assertion that “there 

is no rational basis.” In no scenario can Plaintiff allege that he was not found culpable of battery 

against a teacher resulting in his expulsion. This is all a formulaic recitation of the elements of a 

cause of action and fails to meet the §12(b)(6) standard:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 

detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 

40 F.3d 247, 251 (CA7 1994), a plaintiff’s obligation to provide the “grounds” of his 

“entitle[ment] to relief” requires more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 

U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) (on a motion to dismiss, 

courts “are not bound to accept as true a legal conclusion couched as a factual 

allegation”). Factual allegations must be enough to raise a right to relief above the 

speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp 

235-236 (3d ed. 2004) (hereinafter Wright & Miller) (“[T]he pleading must contain 

something more . . . than . . . a statement of facts that merely creates a suspicion [of] 

a legally cognizable right of action”),n3 on the assumption that all the allegations in 

the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 

534 U.S. 506, 508, n. 1, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Neitzke v. Williams, 

490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) (“Rule 12(b)(6) does not 

countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual 

allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 

(1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is

very remote and unlikely”). 

Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965 (U.S. 2007)

Just because Plaintiff merely mimics the boilerplate language of Willowbrook, this does 

automatically satisfy a pleading of “class of one” equal protection violation. Count IV therefore 

must be dismissed.

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 10 of 15 PageID #:55
11

VIII. Count VI (Violation of the Eighth Amendment - Cruel and Unusual 

Punishment) must be dismissed as against School Defendants because it 

applies only after criminal convictions.

At Page 10, ¶ 58, Count VI of the Amended Complaint, Plaintiff alleges that Defendants’

acts were “willfully and wantonly done without probable cause and was a direct and proximate result 

of Darius’ pain, suffering and mental anguish, and therefore violated the Plaintiff’s Eighth 

Amendment right to be free from cruel, excessive and unusual punishment.” Amended Complaint, 

at Page 10, ¶ 58, Count VI.

The Eighth Amendment as to cruel and unusual punishment applies only in a criminal 

context and only after criminal conviction. East v. Chicago, 719 F. Supp. 683, 690 (N.D. Ill. 1989).

See also: Whitley v Albers (1986) 475 US 312, 89 L Ed 2d 251, 106 S Ct 1078 (criticized in Blyden v 

Mancusi (1999, CA2 NY) 186 F3d 252) (applies only after state has complied with constitutional 

guarantees traditionally associated with criminal prosecutions); Bailey v Andrews (1987, CA7 Ind) 811 

F2d 366 (Eighth Amendment right to be free from cruel and unusual punishment is applicable only 

to sentenced criminals); Smith v Fontana (1987, CA9 Cal) 818 F2d 1411, cert den (1987) 484 US 935, 

98 L Ed 2d 269, 108 S Ct 311 (protects only those who have been convicted of crime); Palmer v A.H. 

Robins Co. (1984, Colo) 684 P2d 187, CCH Prod Liab Rep P 10085, 38 UCCRS 1150 (deals 

exclusively with criminal process and criminal punishment and has no applicability to punitive 

damage statute in civil products liability action against manufacturer of intrauterine device).

Here, the School Defendants were not prosecutors in the criminal proceeding and did not 

enforce any criminal conviction. Plaintiff cannot plead that he was sentenced criminally by School 

Defendants, and cannot plead that School Defendants were involved in any criminal sentencing. 

Nothing occurred to Darius Wade that could constitute cruel and unusual punishment by School 

Defendants. With no criminal sentencing by School Defendants, this Count VI must be dismissed.

IX. Count VII’s Claim for Conspiracy Under § 1983 Must Be Dismissed as against 

School Defendants because There is No Underlying Constitutional Violation

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 11 of 15 PageID #:56
12

As discussed earlier in this motion, for multiple reasons, Plaintiff does not have a valid 

underlying constitutional claim for a § 1983 action. Claims for conspiracy require an underlying 

constitutional violation. Cefalu v. Village of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000); Scherer v. 

Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Thus, Plaintiff’s Count VII claim of conspiracy must fail 

as well.

X. Count IX – The State law-based claim of “Negligent Training and 

Supervision” must be dismissed. 

In Count IX, against the Board/District only, Plaintiffs allege the state law tort claim that the 

Board/District had a duty to train its teachers not to initiate physical contact with its students, that 

the Board/District failed to do so, that defendant District teacher (now retired) Jeanette Thomas did 

initiate contact with the student Plaintiff. Amended Complaint, Count IX, pp. 11-12, ¶¶ 58-63. 

This state law claim is barred by the absolute immunities afforded the Board/District by the Illinois 

Local Governmental and Governmental Employee Tort Immunity Act (“Tort Immunity Act”). As 

earlier mentioned, the Act applies to school districts like the Board/District as here. Employee 

Thomas cannot be liable for her actions because “A public employee is not liable for his act or 

omission in the execution or enforcement of any law unless such act or omission constitutes willful 

and wanton conduct.” 745 ILCS 10/2-201. Because Thomas cannot be liable, therefore the 

Board/District cannot be liable. A local public entity is not liable if its employees or agents are not 

liable to the plaintiff. 745 ILCS 10/2-109. Also, the acts attributed to Thomas were discretionary; 

so any possible resulting injury cannot be attached to the Board/District. Under the Act, a local 

public entity is not liable where its employees exercised discretion on a non-ministerial matter. 745 

ILCS 10/2-201.

In 2011 a Northern District court fully applied these broad protections to a school district 

regarding counts involving the tort of defamation:

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 12 of 15 PageID #:57
13

The Tort Immunity Act provides that “a public employee serving in a 

position involving the determination of policy or the exercise of discretion is not

liable for an injury resulting from his act or omission in determining policy and when 

acting in the exercise of such discretion even though abused.” 745 ILCS 10/2-201. 

The Act also provides that “[a] local public entity is not liable for an injury caused by 

adopting or failing to adopt an enactment or by failing to enforce any law.” 745 ILCS 

10/2-103. Nor are local public entities “liable for any injury resulting from an act or 

omission of its employee where the employee is not liable.” 745 ILCS 10/2-109. The 

Act defines “employee” as including a “member of a board * * * whether or not 

compensated” (745 ILCS 10/1-202), and defines “local public entity” as including a 

“school district” and a “school board” (745 ILSC 10/1-206). The Tort Immunity Act 

applies only to tort actions and does not bar actions for constitutional violations. See 

People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 758 N.E.2d 25, 30, 259 Ill. 

Dec. 180 (Ill. App. Ct. 2d Dist. 2001).

Section 2-201 of the Tort Immunity Act “immunizes public employees from 

liability where the injury claimed is the result of a ‘discretionary policy 

determination.’“ Doe 20 v. Board of Educ. of Comm. Unit School Dist. No. 5, 680 F. Supp. 

2d 957, 988 (C.D. Ill. 2010) (citing Albers v. Breen, 346 Ill. App. 3d 799, 806 N.E.2d 

667, 673, 282 Ill. Dec. 370 (Ill. App. Ct. 4th Dist. 2004)). Section 2-201 immunity 

protects against both negligent and willful and wanton conduct. Id.

Collins v. Bd. of Educ., 792 F. Supp. 2d 992, 998-999 (N.D. Ill. 2011)

Here, the Board/District adopted all such policies in an official capacity in a discretionary 

fashion. Here, the employee Thomas acted in a discretionary fashion in dealing with this student the 

Plaintiff. All should be afforded blanket immunity for this state tort claim. Therefore, Count IX 

must be dismissed as to the Board and District with prejudice.

XI. Punitive Damages Prohibited. 

Plaintiff generally seeks the recovery of punitive damages from all Counts of the Amended 

Complaint. Local governments are immune from punitive damages under §1983. Newport v. Facts 

Concert, Inc., 453 U.S. 247 (1981). As discussed above, an official-capacity suit is nothing more than 

an alternative means of pleading a claim against a governmental entity. Kentucky v. Graham 473 U.S. 

159, 165 (1985). Further, to the extent that plaintiff seeks the recovery of punitive damages from 

Castaldo, that claim should also be dismissed. Holly v. City of Naperville, 571 F. Supp. 668 (N.D. Ill. 

1983). Therefore, punitive damages are not applicable to School Defendants and must be barred. 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 13 of 15 PageID #:58
14

XII. Per F.R.C.P. 17, Denard Wade and LaJuan Wade are not proper Plaintiff 

parties. Darius Wade must be named as sole Plaintiff.

Darius Wade is the only proper plaintiff in this cause, and he is not even named as such. 

Also, his parents Denard Wade and LaJuan Wade cannot be independent plaintiffs because they 

have no standing to sue. The Amended Complaint describes the two named plaintiffs Denard Wade 

and LaJuan Wade as being the parents “individually and on behalf of their son [Darius Wade].” 

Amended Complaint ¶1. Denard Wade and LaJuan Wade also appear “individually and next friend 

of his[her] minor son, Darius Wade.” Amended Complaint ¶¶ 7-8. Darius Wade was a minor 

(under the age of eighteen) during the date of incident (9/23/2009) Id. Both the Complaint and the 

Amended Complaint when filed fail to allege whether Darius Wade was a minor when such were 

filed. 

Pursuant to F.R.C.P. 17(b), the parents cannot be Plaintiffs to this action individually or in 

any fashion independently of their son Darius Wade. None of the facts alleged in the Amended 

Complaint pertain to them individually but only indirectly in their capacity as parents of proper 

plaintiff Darius. As such, they cannot seek relief regarding their own perceived damages in any 

sense. Because Darius Wade is not alleged as being a minor in the Amended Complaint, his parents 

should not function in a representative capacity on behalf of their son Darius; therefore, they should 

be dismissed from this cause entirely. The parents also fail to meet the requirements of Fed.R.Civ.P 

17(a)(1): they are not “the real party in interest.” Also, they cannot represent Darius under 

Fed.R.Civ.P 17(c) because no allegation is made as to any incompetence of, or current minor status 

of, Darius Wade. 

Further, Darius Wade must be named as sole proper plaintiff. The purpose of Fed.R.Civ.P 

17 requiring actions to be prosecuted in name of real party in interest is to enable the defendant to 

avail himself of evidence and defenses he has against such real party in interest to assure finality of 

judgment, and protection against another suit by real party in interest on same matter. Celanese Corp. 

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 14 of 15 PageID #:59
15

of America v John Clark Industries, Inc. (1954, CA5 Tex) 214 F2d 551. Merely because one may benefit 

by result of litigation does not make him real party in interest. Armour Pharmaceutical Co. v Home Ins. 

Co. (1973, ND Ill) 60 FRD 592, 17 FR Serv 2d 1321.

Therefore, Denard Wade and LaJuan Wade should be dismissed from the Amended 

Complaint as improper plaintiffs and any relief sought by them be stricken. Darius Wade should be 

named as sole proper plaintiff in this cause.

WHEREFORE, the School Defendants BOARD OF EDUCATION OF PROVISO 

TOWNSHIP HIGH SCHOOLS DISTRICT 209, PROVISO TOWNSHIP HIGH SCHOOLS 

DISTRICT 209, and MICHAEL CASTALDO, JR. respectfully request that their Motion to Dismiss 

be granted.

Respectfully Submitted,

By: /s/Eric T. Stach

One of the attorneys for the School Defendants

Eric T. Stach (ARDC No. 6275972)

K. Austin Zimmer (ARDC No.6276227)

DEL GALDO LAW GROUP, LLC

1441 South Harlem Avenue

Berwyn, Illinois 60402

Tel. (708) 222-7000

Fac. (708) 222-7001

Case: 1:12-cv-02276 Document #: 15 Filed: 06/07/12 Page 15 of 15 PageID #:60