To otherwise bring an invasion of privacy claim under Section
1983, Plaintiffs must show a violation of a constitutionally protected
right and that such violation was done pursuant to a municipal or
school policy. Monell, 436 U.S. at 694-95.

There is no generally recognized right to privacy; rather, it
attaches only under limited circumstances. Roach v. City of
Evansville, 111 F.3d 544, 550 (7% Cir. 1997). Additionally, there is
a difference between demonstrating an interest in confidentiality that
is supported by statutory or common law and showing the disclosure of
the allegedly confidential information is a constitutional violation.
Pesce v. J. Sterling Morton High Sch. Dist. 201, 830 F.2d 789, 796-97
(7 Cir. 1987). Plaintiffs certainly had an interest in keeping
Jason’s grade and disciplinary reports confidential, but the Seventh
Circuit has recognized a constitutionally actionable violation only in
the case of personal medical and financial information. Denuis v.
Dunlap, 209 F.3d 944, 955-56 (7'* Cir. 2000); see also Pesce, 830 F.2d
at 795-97 (a school psychologist did not have a constitutional right
to privacy to the contents of a therapy session with a student); Duda,
133. F.3d at 1062, n.16 (a school employee did not have a
constitutional right to privacy to the contents of his personal

diary).

- 19 -


to allege specific wrongdoing by the police, i.e., covering up
exculpatory evidence or falsely testifying, is “fatal” to a
plaintiff's complaint).

Therefore, the Court is unable to find any cognizable claims that
Plaintiffs were deprived of a constitutional right. Snodderly, 239
F.3d at 901; Sneed, 146 F.3d at 481. As Plaintiffs have failed to
satisfy the first prong of a Section 1983 claim, the Court finds it
unnecessary to proceed in the analysis and determine whether
Plaintiffs’ claim of an official policy is viable. Therefore, the
Court finds Plaintiffs’ claim of unlawful harassment against City
Defendants is dismissed.

Plaintiffs also put forth a claim of unlawful harassment against
School Defendants and Defendant Theodore under § 1983.** +#

Again, the Court must first analyze whether Plaintiffs were
deprived of a constitutionally protected right. Here, Plaintiffs
correctly state a student has a defensible property interest in his
right to a public education. Goss v. Lopez, 419 U.S. 565, 574 (1975);
Smith on behalf of Smith v. Severn, 129 F.3d 419, 428 (7% Cir. 1997)

Plaintiffs argue a deprivation of this right resulted from School

*! Por purposes of the Court’s ruling and for the sake of clarity, Defendant
Theodore, who is one of City Defendants but allegedly involved in WCCHS
matters, will be included in the designation School Defendants.

‘1 Plaintiffs, in their response, seek to amend their complaint so as to
include only Jason and Jimmy as having claims against School Defendants. For
purposes of this ruling, the Court will assume this to be so.

- 13-


Plaintiffs seek punitive damages from City and School Defendants
for all three counts. In regards to the state-based claims, the ITIA
provides that local public entities cannot be held liable for punitive
damages. 745 ILCS 10/2-102. In regards to the Section 1983 claims, the
United States Supreme Court found municipalities cannot be held
liable for punitive damages. City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271 (1981); Planned Parenthood Association / Chicago
Area v. Chicago Transit Authority, 767 F.2d 1225, 1233-34 (7 Cir.
1985) (local public entities are generally immune from punitive damage
awards for Section 1983 claims).

Plaintiffs rely on Holda v. County of Kane, 410 N.E.2d 552, 557
(Ill. App. Ct. 1980) to argue immunity is precluded if Defendants have
liability insurance. Accordingly, Plaintiffs argue Defendants must
show proof they have no insurance before the Court could make a ruling
on the Motions to Strike. The court in Holda, though, based its
ruling on an old version of 745 ILCS 10/9-103(c) that provided
purchasing liability insurance waives a public entity’s right to
proffer a defense of immunity under the ITIA. Under the new version
of Section 9-103(c), passed after the ruling in Holda, public entities
can proffer any defense available to them under the ITIA. 745 ILCS
10/9-103(c); see Zimmerman by Zimmerman v. Village of Skokie, 697

N.E.2d 699, 710-12 (1998). The new language omits any indication that

- 23 -


deprived Jason of the opportunity to complete high school at WCCHS and
has compromised Jimmy’s opportunity to do the same. (Pls.’ Compl. 9
19). Plaintiffs also allege “unequal and discriminatory conduct” by
WCCHS against both Jason and Jimmy. (Pls.’ Compl. @ 19).

Plaintiffs’ second count alleges the severance of the
relationship between Jason and Day also prompted an invasion of their
privacy by certain agents of WCCHS, including but not limited to,
Defendants Highland and Theodore. They claim certain of the
disclosures violated the Family Education Rights and Privacy Act
(“FERPA”), 20 U.S.C. § 1232(a) (2).

Plaintiffs’ third count alleges libel and slander against Jason
by certain agents of WCCHS, including but not limited to, Defendants
Highland and Theodore. Additionally, Plaintiffs allege several of the
statements violated FERPA.

Plaintiffs’ complaint sets forth no more facts or allegations
than those outlined in the preceding paragraphs. The Motions to
Dismiss and Strike filed by each of City and School Defendants claim
Plaintiffs have not sufficiently, pleaded their case. Plaintiffs’
response recognizes their complaint is likely deficient and sets forth
additional facts. However, a brief in opposition to a motion to

dismiss cannot amend the complaint. Perkins v. Silverstein, 939 F.2d


Here, the Court finds grade and disciplinary reports do not meet
the threshold established by the Seventh Circuit. Although a
disclosure of a student’s grade and disciplinary reports to another
student and her parents would be wholly unprofessional, such a
revelation would not rise to the level of a constitutional violation.
As the invasion of privacy claim fails under the first prong of a
Section 1983 analysis, it is unnecessary for the Court to determine
whether there was a custom, policy or an action taken by a final
policymaker. Further, as discussed above regarding Count I, the Court
finds Plaintiffs have not sufficiently pleaded the existence of such a
policy regarding School Defendants.

For the above reasons, Count II is dismissed.

Count III - Libel and Slander

Count III alleges WCCHS, through Defendants Highland and
Theodore, among others, published slanderous statements regarding
Jason.

As both City and School Defendants point out, and as Plaintiffs
acknowledge in their response, Plaintiffs complaint fails to state the
content of the alleged slanderous statements and includes only
conclusions that slanderous statements were made. “Generally, a
defamation plaintiff fails to satisfy the requirements of notice

pleading unless he specifically states the words alleged to be

~ 20 -


However, the statute clearly imposes no threshold determination
of “willful or wanton.” The Illinois Supreme Court, in In Re Chicago
Flood Litigation, 680 N.E.2d 265, 273 (Ill. 1997), expressly overruled
Barth and found that the legislature must clearly state an exception
for “wanton or willful” misconduct in the language of the statute.
Id. Here, the legislature provides for no such exception. Therefore,
any reliance on the Court’s decision in Younker is misguided. Even if
Plaintiffs were given the opportunity to replead their claim for libel
and slander, they still cannot overcome the immunity conferred upon
City and School Defendants by the ITIA.

Finally, Plaintiffs state in their complaint that some of
allegedly libelous and slanderous statements violated FERPA. As
discussed under Count II, FERPA creates no private enforceable action
under § 1983 or otherwise. Therefore, a FERPA claim for libel and
slander is precluded.

For the reasons set forth above, Count III of Plaintiffs’
Complaint is dismissed.

MOTIONS TO STRIKE

“Motions to strike are disfavored and will be granted only where
the pleading at issue is patently defective and could not succeed
under any circumstances.” Mobley v. Kelly Kean Nissan, Inc., 864 F.

Supp. 726, 732 (N.D. Ill. 1993).

- 22 -


rules enforced by a public school district is vested in the Board of
Education. 105 ILCS 5/10-20.5.

Here, the only WCCHS employee that Plaintiffs mention is
Defendant Highland.'¥ Highland was, at all relevant times, the
Assistant Principal of WCCHS. An Assistant Principal is clearly not a
final policymaker for the school and Plaintiffs fail to point to
anyone else with the proper authority that was involved in the alleged
harassment. A public entity is not liable for the actions of an
employee based only on the employee-employer relationship. Monell, 436
U.S. at 691. Without some allegation by Plaintiffs that individuals,
who under Illinois law have final policymaking authority, prompted the
harassment, or that Defendant Highland has been granted final
policymaking authority, Plaintiffs are unable to satisfy this second
element of a Section 1983 claim. See Duda v. Bd. of Educ. of Franklin
Park Public School Dist. No. 84, 133 F.3d 1054, 1061 (7% Cir. 1998)
(bare allegations are not enough to show a superintendent, principal,
business manager or director of building and grounds had final
policymaking authority); Cornfield by Lewis v. Consolidated High Sch.
Dist. 230, 991 F.2d 1316, 1326 (7° Cir. 1993) (the plaintiffs failed
to show how a disciplinary dean had, or was granted, final

policymaking authority for a high school). For this reason, and

4v Defendant Theodore is a police officer employed by City. His only
connection to WCCHS is by virtue of his involvement with WCCHS as a school
resource officer.

-17-


“”

the threat “watch it - we’re going to get you and your family,” simply
do not rise to the level of a constitutional violation. Goldberg v.
Weil, 707 F. Supp. 357, 361 (N.D. Ill. 1989) (dismissing a harassment
claim based on allegations the police banged on the plaintiff’s front
and back doors, jumped over her locked fence into her backyard,
shouted at her and threatened her with arrest).

Regarding the alleged “bump”, while “police officers do not have
the right to shove, push or otherwise assault innocent citizens
without any provocation whatsoever”, Jacobs v. City of Chicago, 215
F.3d 758, 774 (7 Cir. 2000) (quoting Clash v. Beatty, 77 F.3d 1045,
1048 (7% Cir. 1996)), “not every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates the
Fourth Amendment.” lLanigan v. Village of East Hazel Crest, 110 F.3d
467, 475 (7 Cir. 1997) (quoting Graham v. Connor, 490 U.S. 386, 396-
97 (1989)). “An officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of force.”
Graham, 490 U.S. at 397. In this case, Plaintiffs do not allege any
injury or damage resulted from the “bump”, physical or otherwise.
Lanigan, 110 F.3d 467, 470 n.3; McNair v. Coffey, 279 F.3d 463, 469
(7 Cir. 2002) (while a lack of injury does not definitively point to
a finding of no excessive force, it can be given weight when

considering the totality of the circumstances). The complaint clearly


the complaint as true. Bontkowski v. First Nat. Bank of Cicero, 998
F.2d 459, 461 (7% Cir. 1993). Defendants must meet a high standard
to prove the complaint should be dismissed for the failure to state a
claim upon which relief could be granted. A plaintiff’s complaint
should only be dismissed if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The Court must liberally construe the present pleadings when
determining whether they meet the notice pleading provisions of the
federal rules. Leatherman v. Tarrant County, 507 U.S. 163, 168 (1993).
However, the Court need not stretch the allegations beyond their
sensible and reasonable implications. Chan v. City of Chicago, 777 F
Supp. 1437, 1440 (N.D. Ill. 1991).
Section 1983 Claims Generally

To establish a Section 1983 claim against a local public entity,
Plaintiffs must demonstrate: (1) Defendants deprived Plaintiffs of a
constitutionally protected right; and (2) Defendants’ policy, custom
or usage caused the deprivation. Monell v. Dept. of Soc. Serv. of New
York, 436 U.S. 658, 694-95 (1978); Leahy v. Bd. of Trustees of
Community College Dist. No. 508, 912 F.2d 917, 922 (7° Cir. 1990).

Plaintiffs may allege a “policy” in one of three ways: (1) by

identifying an express policy that caused the alleged constitutional


463, 470 n.6 (7% Cir. 1991). Therefore, Plaintiffs request the
opportunity to replead, i.e. file an amended complaint.

A court may use its discretion when ruling on a request to
replead. DeSalle v. Wright, 969 F.2d 273, 278 (7th Cir. 1992). A court
does not abuse its discretion if a repleading would be futile. Id. In
regards to Counts II and III, as well as Plaintiffs’ prayer for
punitive damages, the Court finds a repleading by Plaintiffs would be
futile; Plaintiffs would still be unable to survive a motion to
dismiss. Garcia v. City of Chicago, Illinois, 24 F.3d 966, 970 (7*
Cir. 1994) (citations omitted). Therefore, the Court denies
Plaintiffs’ request and will make its finding based on those facts and
allegations already before the Court.

Regarding Count I, even if the Court were to recognize
Plaintiffs’ responsive pleading as amending their complaint and
consider those additional facts and allegations, Plaintiffs have still
not sufficiently pleaded claims for which relief could be granted.
Therefore, a repleading is unnecessary.

MOTIONS TO DISMISS

Motions to dismiss under Rule 12(b)(6) test the sufficiency of
the complaint rather than the merits of the case. The Court must
construe all allegations in the complaint in the light most favorable

to Plaintiffs, taking all well-pleaded facts and allegations within


because Plaintiffs are unable to show they were deprived of a
constitutionally protected right, their claim of unlawful harassment
against School Defendants must fail as a matter of law.
Count II - Invasion of Privacy
Plaintiffs’ second count alleges an invasion of privacy.
Plaintiffs do not set forth what documents or pieces of information
were disclosed, but mention in their response that School Defendants
and Defendant Theodore (one of City Defendants) disclosed Jason’s
grade and disciplinary reports to at least one other student and her
parents. Even taking this new allegation into consideration, Count II
still fails as a matter of law.
Plaintiffs claim some of these alleged disclosures violate FERPA.
But, as FERPA has created no private right to enforcement, Plaintiffs
bring their FERPA claim under Section 1983. In analyzing whether
Plaintiffs can do so, the Court turns to the recent United States
Supreme Court ruling in Gonzaga v. Doe, 122 S. Ct. 2268 (2002). The
Court in Gonzaga found “(t]here is no question that FERPA’s
confidentiality provisions create no rights enforceable under § 1983.”
Id. Enforcement, the Court found, is left only to the Department of
Education and FERPA has conferred no private enforceable right under
Section 1983. Id. at 2273. For this reason, Plaintiffs are unable to

proceed with an invasion of privacy claim under FERPA.

~ 18 -


Plaintiffs allege that the harassing incidents included: (1) a
“pumping” of Jason by a City Police Officer with the accompanied
threat “watch it - we’re going to get you and your family”; (2)
drive-bys past Plaintiffs’ residence, sometimes hourly, daily or
weekly, and sometimes including a shining of a spotlight into their
windows; and (3) a pattern of multiple, harassing prosecutions of
Jason and Jimmy. (Pls.’ Resp. pp. 3-4).

In order for Plaintiffs to satisfy the first element of a Section
1983 claim, they must demonstrate that they were deprived of a
constitutionally protected right.

Generally, “police harassment, without more, cannot form a basis
for a § 1983 cause of action.” Arnold v. Truemper, 833 F. Supp. 678,
682 (N.D. Ill. 1993). “[C]itizens do not have a constitutional right
to courteous treatment by the police. Verbal harassment and abusive
language, while ‘unprofessional and inexcusable,’ are simply not
sufficient to state a constitutional claim under 42 U.S.C. § 1983.”
Slagel v. Shell Oil Refinery, 811 F. Supp. 378, 382 (C.D. Ill. 1993),
aff'd, 23 F.3d 410 (7% Cir. 1994) (citations omitted). The
inconvenience, embarrassment or aggravation that could result from
police harassment does not rise to a constitutional violation. Arnold,
833 F. Supp. at 683. Plaintiffs’ specific allegations, including the

frequent drive-bys, with or without the accompanying spotlight, and


a waiver of immunity would result from the purchasing of liability
insurance. Therefore, Plaintiffs’ reliance on Holda is misguided and
it is entirely proper for Defendants to rely on the absolute immunity
conferred by Section 2-102. The Court therefore grants Defendants’
Motions to Strike Plaintiffs’ prayers for punitive damages.
CONCLUSION

For the foregoing reasons, City and School Defendants’ Motions to
Dismiss and Strike all three of Plaintiffs’ counts, as well as
Plaintiffs’ prayer for punitive damages, are GRANTED.

IT IS SO ORDERED.

DATE: August 30, 2002 ha 6

(Hon. William J. Hibbler
U.S. District Court Judge

- 24 -


4 Minute Order Gorm (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud ili i Sitting Judge if O
or Magistrate Judge William J. Hibbler than aesitned Sudee
CASE NUMBER 01 C7527 DATE 8/30/2002
CASE TITLE Harris, etal v. City of West Chicago, etal.

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.}

MOTION:
Defendants’ Motions to Dismiss (#8-1)(#9-1) and to Strike (#8-2)
DOCKET ENTRY:
(1) QO Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due____.
(3) oO Answer brief to motion due___. Reply to answer briefdue___.
(4) a Ruling/Hearingon_ssetfor_ at.
(5) o Status hearing [held/continued to] [set for/re-set for]on__setfor_____at
(6) a Pretrial conference [held/continued to] [set for/re-set for]on__—ssetfor_——s ats
(7) a Trial (set for/re-set for]on_—_aat
(8) im [Bench/Jury trial] [Hearing] held/continued to__at
(9) Q This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]

OOFRCP4(m) (General Rule 21 OFRCP41(a)(1) OO FRCP41(a)(2).

(0) xf [Other docket entry] For the attached reasons, Defendants’ Motions to Dismiss (#8-1)(#9-1) and
to Strike (#8-2) are GRANTED. All pending dates and motions are terminated as moot. Enter

Memorandum Opinion and Order.

(ij) oo [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.
M umber of notices

Notices mailed by judge’s staff.

Norified counsel by telephone. SEP G 3.2002

date'doat

Docketing to mail notices.

Mail AO 450 form.

SS

docffering depuly initials

Copy to judge/magistrate judge.

ion,
o date mailed notic
courtroom fn ate we

deputy’s
initials Dish :
Dace/timne reddivedini’ GC)
central Clerk’s Offi mailing deputy initials

JT Uz



The Court will now proceed to Plaintiffs’ more serious
allegations that Jason and Jimmy were subjected to unwarranted arrests
and harassing prosecutions. (Pls.’ Compl. @ 17; Pls.’ Resp. p. 4).
Plaintiffs must show these arrests and/or prosecutions deprived them
of some constitutional right. Here, it appears Plaintiffs allege a
deprivation of their rights under both the Fourth and the Fourteenth
Amendments.

Plaintiffs, though, do not set forth what alleged arrests and/or
prosecutions they are referring to or why they were wrongful.
Plaintiffs set forth only conclusory accusations, which the Seventh

Circuit has found to be “too vague to be cognizable by law.” Daniels
v. Southfort, 6 F.3d 482, 484 (7 Cir. 1993). “*{S]lome particularized
facts demonstrating a constitutional deprivation are needed to sustain
a cause of action.” Id. at 484-85 (citing Cohen v. Illinois Institute
of Technology, 581 F.2d 658, 663 (7% Cir. 1978)). To plead malicious
prosecution, a plaintiff must “do more than state conclusively that
the defendants maliciously prosecuted him” and must “allege some
action that supports the conclusion that a malicious prosecution
occurred.” Sneed v. Rybicki, 146 F.3d 478, 481 (7th Cir. 1998).

Even if Plaintiffs could ultimately show Jason and Jimmy were not

convicted of the alleged crimes, that fact, standing alone, is

insufficient to support even an inference of harassment. Daniels,

-11-


alleges City’s officers intended to harass Plaintiffs, including
Jason, as a result of the end of the relationship between Jason and
Day. As discussed above, a claim based on verbal harassment and
drive-bys is not cognizable. The mere fact this “bump” was physical
and not verbal does not elevate the interaction to excessive force.
See Graham, 490 U.S. at 386 (finding excessive force based on the
plaintiff’s broken foot, cuts on wrist, bruised forehead, and injured
shoulder); Miller v. Smith, 220 F.3d 491 (7% Cir. 2000) (finding
excessive force after officer kicked plaintiff in the back, stepped on
his face, punched him, and yanked him around by the hair); McDonald v.
Haskins, 966 F.2d 292 (7 Cir. 1992) (finding excessive force after
officer held gun to head of nine-year-old boy and threatened to pull
trigger during course of search of boy’s residence). Plaintiffs are
unable to take their claim of unlawful harassment from untenable to
maintainable.

For the present motion to dismiss, the Court assumes Plaintiffs’
allegations are true; accordingly, City’s officers acted
unprofessionally and may have violated state and/or city police codes.
But such alleged harassment cannot be maintained as a constitutional
violation for purposes of establishing a claim under Section 1983.

Slagel, 811 F. Supp. at 382.

- 10 -


violation; (2) by alleging the existence of a practice so widespread
and permanent that it constitutes a custom or usage; or (3) by
alleging that the constitutional injury was caused by a person with
final policymaking authority. Baxter by Baxter v. Vigo County Sch.
Corp., 26 F.3d 728, 734-35 (7° Cir. 1994). If Plaintiffs allege a
claim under the third approach, such claim can be based on a single
decision so long as that decision was made by a final policymaker.
Pembauer v. City of Cincinnati, 475 U.S. 469, 481 (1986). Whether or
not a particular employee has final policymaking authority is a matter
of state law. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989) (citing St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)).
Count I - Unlawful Harassment

Plaintiffs’ first count alleges unlawful harassment by both City
and School Defendants under Section 1983 and in violation of
Plaintiffs’ rights under the Fourth and Fourteenth Amendments.

The Court will first address Plaintiffs’ claim against City
Defendants. Plaintiffs allege Defendants harassed Plaintiffs by
subjecting them to unwarranted police interventions, arrests, drive-
bys past their residence, verbal and physical harassment and other
overt acts of harassment. For purposes of ruling on City Defendants’
Motion to Dismiss, the Court will consider the more specific

allegations that Plaintiffs set forth in their response. There,


actionable.” Seaphus v. Lilly, 691 F. Supp. 127, 134 (N.D. Ill. 1988);
see also Chisholm v. Foothill Capital Corp., 940 F. Supp. 1273, 1284
(N.D. Ill. 1996). “fhe reason a plaintiff must, under notice pleading
requirements, plead the specific words alleged to be actionable is
that knowledge of the exact language used is necessary to form
responsive pleadings.” Woodard v. Am. Family Mutual Insurance Co., 950
F. Supp. 1382, 1388 (N.D. Ill. 1997). Here, Plaintiffs fail to allege
the content of the slanderous statements, who made them, and when and
where they were made. As a result of these deficiencies, Plaintiffs
have requested an opportunity to amend their complaint. The Court
finds this to be unnecessary, as Plaintiffs could still not establish
a claim upon which relief could be granted due to the immunity
conferred upon Defendants.

The Illinois Tort Immunity Act (the “ITIA”) provides “a local
public entity is not liable for any action of its employees that is
libelous or slanderous.” 747 ILCS 10/2-107. Plaintiffs argue immunity
is precluded when employees act in a “willful or wanton manner.”
Younker v. Schoenenberger, 22 F.3d 163, 168 (7% Cir. 1994). The
Court in Younker relied on the ruling in Barth by Barth v. Board of
Educ. of City of Chicago, 490 N.E.2d 77, 82 (Ill. App. Ct. 1986) to

support such a proposition.

-21-


BACKGROUND

Plaintiffs are residents of West Chicago, Illinois, and both
children, Jason and Jimmy, are or have been students at WCCHS. At all
relevant times, Defendant Baker was the administrative assistant to
Defendant Mourning, the West Chicago Chief of Police; Defendant
Theodore was a police officer serving as a school resource officer at
WCCHS; and Defendant Highland was the Assistant Principal at WCCHS.

During a period prior to October 2, 2000, Jason maintained a
social relationship with Defendant Baker’s daughter, Jessica Day
(“Day”). Then, at some point prior to October 2, 2002, Jason
discontinued his relationship with Day. Plaintiffs allege after Jason
ended his relationship with Day, they became the subjects of unlawful
harassment by City Defendants. This alleged harassment included
“unnecessary and unwarranted police interventions and arrests,
unnecessary and unwarranted police drive bys past the residence
occupied by the plaintiffs, verbal and physical harassment by the
Officers against Jason and Jimmy and other overt acts of harassment.”
(Pls.’ Compl. I 17). These actions were allegedly prompted and taken
at the request of Defendant Baker.

Plaintiffs allege they also became the subjects of unlawful
harassment by School Defendants. The alleged harassment consisted of

a “systematic course of harassment against Jason and Jimmy” that has


Defendants failure to afford, as is guaranteed by the Fourteenth
Amendment, procedural due process and equal protection under the law.

To state an equal protection claim, Plaintiffs must show they:
(1) are members of a protected class; (2) were similarly situated to
members of an unprotected class; and (3) were deliberately treated
differently from those similarly situated. Billings v. Madison
Metropolitan Sch. Dist., 259 F.3d 807, 812 (7 Cir. 2001).
Plaintiffs have failed to set forth any facts or allegations to
suggest they are members of a protected class. From the facts before
the Court, the Court cannot infer protected class membership, even
given the most liberal interpretation. Since Plaintiffs do not set
forth any facts or allegations to support any of the elements of an
equal protection claim, they are unable to satisfy the first prong of
their Section 1983 claim.

Alternatively, Plaintiffs argue School Defendants deprived them
of their constitutional right to procedural due process. To establish
a procedural due process claim, Plaintiffs must show: (1) they were
deprived of a constitutionally protected interest; and (2) the
procedures afforded by School Defendants were constitutionally
inadequate. Zinermon v. Burch, 494 U.S. 113, 125-26 (1990);
Vukadinovich v. Bd. of Sch. Trustees of Michigan City Area Schs., 978

F.2d 403, 410 (7% Cir. 1992). As set forth above, the right to a

- 14 -


Plaintiffs’ statements in the light most favorable to them, it is
still impossible for the Court to find they have adequately pleaded a
procedural due process claim.

However, even if Plaintiffs were able to adequately allege a
constitutional violation under either equal protection or procedural
due process, their Section 1983 claim of unlawful harassment still
fails as a matter of law. Plaintiffs have failed to sufficiently
plead the alleged harassment was done pursuant to School Defendants’
policy, as required by the second prong of a Section 1983 claim.
Plaintiffs omit from both their complaint and their response any
indication of how they purport to satisfy this required element.
However, the Court will proceed with a determination of whether
Plaintiffs’ allegations could satisfy any of the three methods to
establish policy.

First, there is no evidence or allegations of an express policy
or established practice by WCCHS of harassing students that end
relationships with the children of city employees. Therefore, the
Court turns to whether or not the harassment was done in response to
an order from a final policymaker. The Court looks to Illinois law to
determine what persons in a public school have authority to manage and
otherwise oversee the administration of the school. Under Illinois

law, final policymaking authority in regards to the management and

- 16-


(“Section 1983”) and/or state law: (1) unlawful harassment; (2)
invasion of privacy; and (3) libel and slander.*

The Court now has before it Motions to Dismiss and Strike filed
by both City and School Defendants. Both parties request that the
Court dismiss all three counts against them and strike Plaintiffs’
prayer for punitive damages. For the reasons set forth below, the
Motions to Dismiss and Strike are GRANTED.

The Court notes Plaintiffs filed a Motion to Stay Proceedings
pending a ruling by the United States Supreme Court in Gonzaga v. Doe,
122 S. Ct. 2268 (2002). As that case was decided on June 20, 2002, it
will be addressed by the Court and incorporated into the analysis set
forth below. Therefore, Plaintiffs’ motion is moot and does not need

to be ruled on by the Court.

———

’ Plaintiffs do not indicate whether they are suing the individual defendants
in their individual or official capacity. The old rule assumed a failure to
indicate capacity meant a plaintiff was suing an individual in his official
capacity. Kolar v. County of Sangamon, 756 F.2d 564, 568 (7 Cir. 1985). This
rule has given way to a new interpretation whereby a court reviews the
complaint and determines whether the claims brought, including the relief
sought, indicate the capacity in which they are seeking to sue. Hill v.
Shelander, 924 F.2d 1370, 1373-74 (7 Cir, 1991). In this case, Plaintiffs
seek punitive damages, which would normally point to an individual capacity
suit, see Armstrong v. Squadrito, 152 F.3d 564, 581 (7 Cir, 1998), but
Plaintiffs specifically argue City and WCCHS should be held liable for
punitive damages anyway. Plaintiffs also argue policy and custom, which
typically indicates an official capacity suit. Hill, 924 F.2d at 1373; see
also Miller v. Smith, 220 F.3d 491, 494 (7 Cir. 2000). Therefore, the Court
finds for purposes of this ruling, the claims against the individuals are in
their official capacity. It is important to note, though, Section 1983
individual capacity suits must allege the individual acted under color of
state law and deprived Plaintiffs of a constitutionally protected right.
Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, Plaintiffs’ claims
against the individual defendants in their individual capacity would still
fail, as Plaintiffs have failed to adequately allege they were deprived of a
constitutional right.


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

Allen Harris, Nancy Harris,

Jason Harris, and James Hofmann,

a minor, by Nancy Harris, his

mother and next friend
Plaintiffs,

Case No. 01 C 7527

JUDGE WILLIAM J. HIBBLER
Vv.

City of West Chicago, Illinois,
West Chicago Community High
School, District 94, Richard
Theodore, Gerald S. Mourning,
Doreen Baker, John Highland, and
Forty Unidentified Patrol Officers
of West Chicago Police Department
Defendants.

goers

Se? 93 2002:

MEMORANDUM OPINION AND ORDER

Allen Harris (“Allen”), Nancy Harris (“Nancy”), Jason Harris
(“Jason”), and James Hofmann (“Jimmy”) (collectively “Plaintiffs”)
filed a claim against the City of West Chicago (“City”), Gerald Ss.
Mourning (“Mourning”), Doreen Baker (“Baker”), and Forty Unidentified
Patrol Officers of the West Chicago Police Department (collectively
“City Defendants”), and the West Chicago Community High School,
District 94 (“WCCHS”) and John Highland (“Highland”) (collectively

“School Defendants”), alleging three violations under 42 U.S.C. § 1983


6F.3d at 485. Additionally, even if Plaintiffs could show a vast
number of arrests and/or prosecutions, those facts, standing alone,
are also not enough to support an inference of harassment. Collins v.
County of Kendall, Illinois, 807 F.2d 95, 99 (7 Cir. 1986

{citations omitted). Plaintiffs have failed to sufficiently plead the
police engaged in some unlawful activity that violated their
constitutional rights. Daniels, 6 F.3d at 485; Reed v. City of
Chicago, 77 F.3d 1049, 1053 (7 Cir. 1996). As noted above,
Plaintiffs do not even list what arrests and/or prosecutions they are
referring to or how City Defendants acted maliciously. Further,
Plaintiffs do not contend these arrests and/or prosecutions were based
on false warrants, a lack of probable cause, planted evidence or false
testimony, but rather they were undertaken solely to harass them.
Sneed, 146 F.3d at 481 (finding a plaintiff must allege he was
arrested without probable cause in order to adequately plead a false
arrest claim); Snodderly v. R.U.F.F. Enforcement Task Force, 239 F.3d
892, 901 (7 Cir. 2001) (finding a plaintiff pleading a claim for
malicious prosecution must “allege that the officers committed some
improper act after they arrested him without probable cause, for
example, that they pressured or influenced the prosecutors to indict,
made knowing misstatements to the prosecutor, testified untruthfully,

or covered up exculpatory evidence”); Reed, 77 F.3d at 1054 (a failure

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public education is a constitutionally protected property interest.
Goss, 419 U.S. at 574. But, Plaintiffs have not sufficiently pleaded
School Defendants deprived them of such an interest. Plaintiffs’
allegations are vague at best, and, even construed in the light most
favorable to them, are still not satisfactory.

Plaintiffs allege “Jason has been deprived of the opportunity to
complete his high school education at WCCHS” and “Jimmy has had his
educational experience seriously compromised.” (Pls.’ Compl. 4 19).
Among the more specific allegations that Plaintiffs set forth in their
response, which the Court will consider for purposes of this ruling,
Plaintiffs argue “Jason has been deprived of his right to complete his
public education on an equal footing with all other students similarly
situated” and that Jimmy’s right “to complete his education remains
seriously in doubt.” (Pls.’ Resp. p. 4) (emphasis added). Plaintiffs
have not alleged Jason and Jimmy were expelled, suspended,
transferred, held back or subjected to another disciplinary action.
Plaintiffs put forth a myriad of case law supporting the proposition
that disciplinary actions, such as those listed in the preceding
sentence, cannot be taken without affording procedural due process.
They also allege Plaintiffs were not provided with any of those
procedures. But Plaintiffs fail to identify any disciplinary actions

taken by School Defendants against Jason and Jimmy. Even viewing

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