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# United States Court of Appeals For the Seventh Circuit

No. 13-3549
D.S., b/n/f G E ORG E M. S TAHL and D E B B I E L YNN S TAHL, et al ., Plaintiffs-Appellants ,

v.

E A S T P OR

T E R C OUNT

Y S C H OOL C OR P OR AT I O N , et al ., Defen dants-Appellees.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Indi ana, Hammond Di v i sio n. No. 2: 11 -cv-00 43 1- PRC — Pa ul R. Che rry , Magistrate J udg e.

A RGUE D N OV E MB E R 14, 2014

— D E C I D E D A UGUS T 24, 2015

Before B AU E R

, F L AUM , and T I ND E R

, Circ uit Judges. B AU E R , Cir cui t Judge. Plainti ff- appellants, D.S

. and her parents, Debb i e Lynn St ahl and Georg e M. St ahl, brought sui t under 42 U.S.C. § 1983 a ga in s t d e fe n dant-appellees, East P or ter County School Cor porat i on and M o rg an T ownship Middle/Hi gh School (collectiv ely “East P or ter ”), and P or ter T own s hi p School Cor porat i on and Boone Grov e Mi d d l e Sch oo l2 No. 13-3549 ( c ol l e c tiv ely “PTSC”), allegin g v arious consti tutio n a l an d s ta te

law clai ms. E a st Por ter and PTSC fi led separate motions for
sum mary judgment, whi ch the di stric t court gr anted in full. D.S. and the St ahls appeal the di stric t court’s gr ants of sum mary judgment as to their consti tutional clai ms onl y
. W e affi rm. I. BACKGRO UND D.S., a min or

, w as enrolled as a student in the East P or ter County School Cor porat i on, a sch ool system located in P or ter County , Indi ana, from kin derg art en thro ugh ei ghth gr ade. Whi le there , D.S. asserts that she w as the vic tim of bullying at the hands of her fellow st udent s begi nning as early as thi rd gr ade. D.S. clai ms that the bullying becam e more physi cal and vic i ous at Mor gan T

ownshi p Midd le/Hi gh School begi nning in si xth g rade, when sev eral girls thr ew basketballs at her head, tr i pped her

, and i gnor e d he r during basketball practic e. The bullying conti nued into sev enth gr ade, when someone wr o t e
on her sch ool planner , “I ho p e you di e,” and thro ughout ei ghth gr ade, when students conti nued to pi ck on her in clas s, often moving her desk to a co r ne r of the soci al studi es clas sro om or kic kin g it. After many of these inci dents occurred, D.S. complained to sch ool offi ci als. How ev er , apart from wi tnessing the gui dance
couns elor talk to one of the alleged bulli es about her behavi or tow ard D.S. and see ing the prin ci pal call one of the alleged bulli es to her offi ce, D.S. does not know i f sch ool offi ci als too k any acti on in response to the complaints. D.S. also alleges that
some of her teachers and coaches at Mor gan T o wn sh i p Midd le/Hi gh Schoo l expr essly par tic i pated or w ere compli ci tNo. 13-3549 3
in the bullying. Speci fi cally , D.S. asserts that her si xth gr ade gym teacher forced her to partici pate in gym clas s ev en though three of her toe s w e re brok en; her si xth and sev enth gr ade basketball coaches gav e her li ttle playi ng tim e and told her that she w as no t goo d at basketball; her sev enth gr ade v olleyball coach gav e her little playi ng tim e and accu sed her of lyin g about the numb er of laps that she ran in practic e; and her soci al studi es teacher laughed when her desk w as mov ed by other clas smates. D.S. di d not ret urn to Mor gan T ownship Midd le/Hi gh School afte r t he ev ents of Februar y 9, 2011. On that day , D.S. had stay ed after sch ool wi t h t he rest of the basketball team. When the girls were t o l d to get their uni forms from the laundry ro om, D.S. di scov ered that one of the girls had swi tched D.S.’s shorts for a large r si ze. The girls start ed tauntin g D.S. and calling her na me s, such as “fat,” and follow ed he r wh e n she tr i ed to get aw ay from the name calling. D.S. called her mother

, Debb i e, who came to the sch ool to pi ck up D.S. and, whi le there , y elled at the alleged bulli es, poin tin g he r finger at one of them. Shor tly there after , D.S.’s father

, Georg e, arr i v ed and confronted the prin ci pal about the bullying si tuation. He asked the prin ci pal whether she w as going to talk to t he a l leged bulli es; in response, the prin ci pal sai d that she w as going to speak to Debb i e about her behavi or when she pi cked up D.S. from the sch ool that afterno on. Georg e asked the prin ci pal fo r an e x planati on and, when she di dn’t respond, demanded to k no w whether hi s chi ld w as being t r eated poor ly becau se of money
. Georg e then left the sch ool but ret ur ne d to pi ck up D.S.’s gr andfather , who w as already w ai tin g in the gym for the ba sk e tball game. Upon4 No. 13-3549
exiting the g y m, Georg e and hi s father confronted sev eral of t he alleged bulli es. As the tw o men w alked aw ay , the girls start ed y elling that Georg e and his father had at tac k e d them. Thi s prompte d the prin ci pal t o sum mon both men into her offi ce a nd ca l l the poli ce. No students came forw ard to complain further

, so the poli ce di d not i ssu e a ci tation to Georg e or hi s father

. The next day

, the sch ool superintendent, Roy Gar din, contacted the St ahls to set up a meetin g wi th them t o d isc uss the ev e nt s of the prev i ous day

. Gardin explained that Debb i e and Georg e w ould be banned from Eas t Por ter proper ty unti l they w ere able to meet wi th hi m; how ev er , the St ahls nev e r contacted Gardi n t o set up a meetin g. Consequently , Georg e and Debb i e w ere banned from sch ool proper ty for one y e a r
. D.S., who w as not subject to the ban, v oluntarily chose not to ret urn to M or gan T

ownshi p Mid dle/Hi gh Schoo l. Subsequently

, the St ahls contacted Boone Grov e Midd le School, located wi thi n a nei ghboring sch ool di stric t, the P or ter T ownshi p School Cor porat i on, to inqui re as to whether they could enroll thei r dau ghter , who resi ded out of di stric t, in the sch ool to complete her ei ghth gr ade y ear
. Georg e testifi ed that he w as advis ed that t he sch ool had “open en ro llment,” so the St ahls w ent to B o o ne Gr ov e the next day to enroll D.S. and take a tour of the sch ool. After the tour conclu ded, Georg e told the prin ci pal of Boone Grov e th a t he and Debb i e had been banned for a year from East P or ter proper ty

. The prin ci pal responded that he w ould hav e t o chec k wi th the superintendent to see whether there w as any i ssu e wi th enrollment prior to finali zing D.S.’s tr ansfer
. That ev ening, the prin ci pal called the St ahls and informed them that D.S. w ould not be permi tte dNo. 13-3549 5

to enroll, as they w ere closin g e nr ollment. Nev ertheless, the following Monday

, Georg e asked a nei ghbor to come wi th hi m to Boone Grov e and inqui re about enrollment. Georg e testifi ed that the nei ghbor w as told by sch ool personnel that enrollment

w as open. D.S. and the Stahls fi led sui t agains t East P or ter and PT SC pursuant to 18 U.S.C. § 1983, allegin g equal prot ecti on and due process violati ons, as w ell as muni ci pal liabili ty pursuant to Monell v
. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The S t a hls also asserted sev eral Indi ana sta t e-law clai ms, inclu ding intentional inflict i on of emotional di stress, defamati on, and false li ght inv asi on of priv acy
. Both East P or ter and PTSC fi led motions for sum mary judgment; D.S. a nd the St ahls fi led a response to East P or ter ’s motion but fai led to fi le a response to PTSC’s motion. The di stric t court gr anted sum mary judgment in fav or of East Por ter and PTSC as to all of D.S. and the St ahls’ consti tut ional clai ms and declined to exer ci se supp lemental juris d i cti on ov er their stat e-law clai ms. Thi s appeal follow ed. II. ANAL

YSIS A. D.S.’s Due Proces s Cl aim Against East Porter T o state a clai m for relief under 42 U.S.C. § 1983, a plainti ff
mus t allege that he or she w as depr i v ed of a right secu re d by the Constituti on or the laws of the Uni ted St ates, and that thi s depriv ation occurred at the hands of a person or persons acting under the c olor of state law

. Buchanan-Moo re v
. Cty

. of Milwaukee, 570 F .3d 824, 827 (7th Ci r
. 2009). Although the Due Process Clause of the Four teenth Amendment prev ents the state from infringi ng on an indi vidu al’s r i ght to li fe, liberty , or proper ty

, i t does not “i mpose an affi rmativ e obli gation on the [s] tat e to6 No. 13-3549

ensure that those intere sts do not come to harm thro ugh other means.” DeShaney v
. W inn ebago Cty

. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). The Due Pro cess Clause li mi ts the state’ s pow er to act, but does not act “as a g ua r antee of certain mini mal lev els of safety and secu rity .” Id. at 195. Accordi ngly , the Clause gener ally does not i mpose upon the state a duty to prot ect indi vidu als from harm by priv ate a ct or s. Id. at 197. How ev er

, tw o exceptions hav e gr o wn out of thi s gener al prin ci ple. Th e first obli gate s the state to prot ect indi vidu als wi th whom i t has a “spec i al relationshi p,” such as a custodi al relat i onshi p that cuts o ff alternativ e av enues of ai d. Monfils v

. T aylor , 165 F .3d 511, 516 (7th Ci r
. 1998). The other i s the “statecreated danger exception,” whi ch appli es when a state actor ’s conduc t “creates, or sub stanti ally contribu tes to the c reati on of,

a danger or r enders ci tizensmore v ulnerable to a danger that they other wi se w ould hav e been.” R eed v
. Gardner, 986 F .2d 1122, 1126 (7th Ci r . 1993). D.S. does not ar gue that the speci al relat i onshi p exception i s appli cable to thi s case, and relies instead on the state-create d d anger doctrine. T

o prev ai l under a state-create d d a ng e r theor y , D.S. mus t show th r e e thi ngs: (1) that the state—her e, East P or ter —by i ts affi rmativ e acts, cre a t e d o r increased a danger t hat D.S. faced; (2) t hat East P or ter ’s failu re to prot ect D.S. from dang e r w a s the prox i mate caus e of her injury ; and (3) that East P or ter ’s fai lure to prot e ct D. S. shocks the consci ence. See K ing ex rel. Kin g v
. East St. Louis Sch. D ist. 189, 496 F .3d 812, 818 (7th Ci r
. 2 0 0 7 ). D.S

. alleges that sch ool offi ci als ei ther cr e a ted the ris k that D.S. w ould be bulli ed by her teammates and clas smates o r render ed D.S. more vulnerable to the ris k of being bulli ed. The di stric t court held that D.S. di dNo. 13-3549 7

not offer suffi ci ent evidenc e to create a g e nuine i ssu e of material fact under the state-create d danger stand ard. W e agr ee. D.S. has not sh own th a t h e r teachers and coaches insti gate d, created, or increased the bullying that she exp e r i enced at sch ool. Although D.S. arg ues tha t sc hool offi ci als’ inac tion o r ineffec tiv e responses to her repo rt s of bullying increased the danger that she faced, the recor d does not supp or t thi s contention. D .S. t esti fi ed that she does not know whether the princi

pal or her gui dance c ounselor to ok any steps to di sci pline the bulli es apart from the tw o instances wher e she saw each of t he m t a l k to an alleged bully

. She appears to assu me that, becau se she di dn’t see sch ool offi ci als take more acti on, none occurred. Putti ng asi de the fact that sch ool offi ci als do not hav e
an affi rmativ e duty to prot ect students, J.O. v
. Alton Cmty

. Unit Sch. Dist. 1 1, 909 F .2d 267, 272–73 (7th Ci r
. 1990), thi s assu mption i s not suffi ci ent to rais e a genuine i ssu e of material fact. 1 D.S. also alleges that sch o o l personnel partici pated in the bullying inci dents. T

o adv ance thi s clai m, D.S. ci tes to instances in whi ch one of her teachers laughed when st ud ents mov ed D.S.’s desk in class, her gym t e a ch e r forced her to partici pate in g ym clas s whi le injured becau se she di dn’t hav e a doctor ’s note, and where she felt that her athletic abil i ties w ere not appreci ated by her coaches

. W e agr ee wi th the di stric t court

Para do xic al l y , D. S. also contends tha t schoo l of fi ci als, i n talki ng to the 1 all eged b ull i es on the two occ as i o ns t hat D.S. witnessed, made her more
vulner ab l e to atta cks b y other students. We wil l not add r e ss this theory b ecause D.S. waived this argument b y fail i ng to r aise i t b el ow. See N ichols
v. Mich. City Plant Planning D ep’t, 7 55 F.3 d 5 94 , 6 00 (7 th Ci r. 2 01 4)

.8 No. 13-3549
that such acti ons do not sat isfy the fi rst element of the statecr e a ted danger exception and, ev en i f they di d, do not ris e t o the requis i te lev el of egr egious ness to sati sfy the thi rd element. See Cty

. of Sacramento v
. Lewis, 523 U.S. 833, 846 (1998) (holding that state acti on that shocks the consc i ence i s conduc t that may be deemed “arbi tr ary in the consti tutional sens e” and that only “the most egr egious offi ci al conduc t” wi ll sati sfy thi s inqui ry ); Jackso n v
. Indian Prairie Sch. Dist. 204, 653 F .3d 647, 654–55 (7th Ci r
. 2011); Kin g e x re l. Kin g, 496 F .3d at 818–19. Thus, as D.S. has not shown that ther e i s a genuine i ssu e of material fact under the state-create d danger standard, she cannot prev ai l on her § 1983 due pro cess clai m against East Por ter

. B. D.S.’s Equal Protect ion Claim Agains t PTSC D.S.’s § 1983 equal prot ecti on clai m again st PTSC si mi larly fai ls. Th e Equal Protection Claus e gr ants to all Americ ans the “right to be free from invidi ous di scri minati on in statuto ry clas si fications and other governmental acti vity .” Harris v
. McRae, 448 U.S. 297, 322 (1980). As wi th her due process clai m again st E a st P or ter

, D.S. can seek relief pursuant to 42 U.S.C. § 1983, i f she can show that she w as depriv ed of a right secu red by the Constituti on or federal law , by a p e r so n acting under color of state law

. Buchanan-Moo re, 570 F .3d at 827. In or der to establi sh li abi li ty under § 1 9 8 3 , D.S

. mus t show that PTSC acted wit h a nefari ous di scri minator y purpose and di scri mi

nated again st her based on her membershi p in a definable clas s. Nabo zny v. Podlesny, 92 F .3d 446, 453 (7th Ci r . 1996). Sinc e D.S. does not allege that she i s member of a prot ected clas s, she has elected to proceed under a “clas s-of- one” theor y
. T o establi sh a suc cess ful clas s-of- one equal prot ecti on cla im,No. 13-3549 9
D.S. mus t show that she w as “intentionally tr eated di fferently from other s si mi larly si tuated and that there i s no rat i onal basi s for the di fference in tr eatment.” V ill. of W illowbrook v
. Olech , 528 U.S. 562, 564 (2000). Furt her , to be “si mi larly si tuated,” she and her comparato rs mus t be “ prim a f ac i e i denti cal in all relev ant respects or di rectly compa rable

... in all material respects.” United States v
. Moo re, 543 F .3d 891, 896 (7th Ci r
. 2008) (quoti ng Racine Charter One, Inc. v
. Racine Unif ied Sch. Dist., 424 F .3d 677, 680 (7th Ci r
. 2005)) (inte r na l quotat i on marks excluded). Although the questi on of whether indiv i duals are si mi larly si tuated i s a questi on of fact for the jury to deci de, “a court may proper ly gr ant sum mary judgme nt where i t i s clear that no reasonable jur y could find t hat the si mi larly si tuated r equi rement has been met.” McDonald v
. V ill. of W inn etka, 371 F .3d 992, 1002 (7th Ci r . 2004). W e agr ee wi th the di stric t court that sum mary judgment in fav or of PTSC i s appropr i ate in thi s case. At the onset we note that, in the proceedings below , D.S. fai led to respond to PTSC’s motion for sum mary judgment and di d not fi le a “St atement of Genuine I ssu es” pursuant to Local Rule 56-1(b )(2)

. Although her fai lure to respond does not mean PTSC i s automatic a lly entitled to sum mary judgment in i ts fav or , D.S. has w ai v ed her right to rais e any arg ument on appeal that she di d not rais e in the di stric t c ourt

. Domka v
. Porta ge Cty., W

is., 523 F .3d 776, 783 (7th Ci r
. 2008) (notin g that “[i ]t i s a w e l l -s e t t l ed rule that a party opposi ng a sum mary judgment motion mus t inform the tr i al judge of the reasons, legal or factual, why sum mary judgment should not be enter ed. If i t does not do so, and loses t he mo tion, i t cannot rais e such reasons on appeal” (interna l quotat i ons and ci tations excluded))

. Our analysi s i s confined to10 No. 13-3549
the exis tin g recor d, not the new facts that D.S. atte mpts to put forw ard on appeal. V iewed in the li ght most fav or able to the non-moving party , D.S. has not put fort h any speci fi c facts showing that there i s a genuine i ssu e fo r t r i al under the clas s-of- one equal prot ecti on standa rd. D.S. poin ts to the fact that her father , Georg e, ov erhear d sch ool o ffic i als at Boone Grov e tell hi s nei ghbor that the sch ool had open enrollment, ev en though the prin ci pal of Boone Grov e had called Georg e the ni ght before to inform hi m th at enrollment w as closed. How ev er , the St ahls’ nei ghbor nev er actually atte mpted to enroll hi s chi ld at Boone Grov e, as Georg e St ahl had done. In fact, Georg e testifi ed that he di d not know i f any out-of-d i stric t students w ere admi tte d to Boone Grov e Midd le School after D.S.’s tr ansfer appli cati on
w as rej ected. Simp l y put, D.S. has fai led to i denti fy any si mi larly si tuated indi vidu als who w ere tr eated di fferently by PTSC wi th reg ard to her atte mpt to tr ansfer sc ho o l s. Accordingly , her § 1983 equal prot ecti on clai m again st PTSC mus t fai l. C. D.S.’s Monell ClaimsAgainst East Porter and PTSC D.S. arg ues on appeal that there are genuine iss ues of material fact that preclude sum mary judgment on her muni ci

pal li abi li ty clai ms again st both Ea st P or ter and PTSC. “[A] local g ov ernment may not be sued under § 1983 for an injury infli cted solely by i ts employ ees or agents” unles s the “execution of a government’s poli cy or cus tom

... infli cts the injury .” Monell, 436 U.S. at 694. How ev er , a muni ci pali ty cannot be found li able under Monell when there is no underlyin g consti tutional violati on by a muni ci pal e mplo y ee. Sallen ger v
. City of Sprin gfield, Ill. , 630 F .3d 499, 504 (7th Ci r
. 2010). S inceNo. 13-3549 11
D.S. cannot show a violati on of her consti tutional rights under ei ther the Due Process or Equal Prot ecti on claus es of t he Four teenth Amendment, the defendants cannot be held li able under Monell

. AFF IRM ED