03-8717.081-JCD June 23, 2008

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KOMAA MNYOFU, )

)

Plaintiff, ) 

)

v. ) No. 03 C 8717

)

BOARD OF EDUCATION OF RICH )

TOWNSHIP HIGH SCHOOL DISTRICT 227, )

a unit of local government, Cook )

County, Illinois, and SELMA )

McDONALD, individually and in her )

official capacity, )

)

Defendants. )

MEMORANDUM OPINION

Before the court is the motion of defendant Board of Education

of Rich Township High School District 227 (the “Board”) for summary

judgment on the only claim that survived defendants’ previous

summary judgment motion--plaintiff’s First Amendment claim against

the Board and defendant Selma McDonald arising out of the April 7,

2005 school assembly. The motion concerns whether there is a basis

for imposing Monell liability on the Board for the removal of

plaintiff from the assembly. Also before the court are the Board’s

motions to strike portions of plaintiff’s Local Rule 56.1 statement

and to deem certain facts admitted. 

BACKGROUND

In our memorandum opinion of April 27, 2007, we observed in

pertinent part:
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A jury will have to decide whether McDonald intended to

suppress plaintiff’s speech based on its content or

whether she genuinely believed that the disruption he

caused justified his removal. 

Additionally, before making that determination, a

jury will have to decide whether McDonald bears

responsibility for having plaintiff removed from the

assembly. If, for example, [Celeste] Nelson called

security without any direction from McDonald, that fact

would seriously undermine plaintiff’s claim. If Nelson

told security to remove plaintiff from the assembly and

she made that decision on her own, there would no basis

to hold McDonald liable. (And plaintiff did not sue

Nelson, so she faces no liability.)

As for the Board, whether there is a basis for

holding it liable under Monell for removing the plaintiff

from the assembly remains to be seen. Neither side

addressed this issue in briefing the motion for summary

judgment, so we shall not decide it. We note, however,

that to recover against the Board under § 1983, plaintiff

must establish either that “(1) the Board has an express

policy that, when enforced, causes a constitutional

deprivation; (2) the Board has a widespread practice

that, although not authorized by written law or express

policy, is so permanent and well-settled that it

constitutes custom or usage with[] the force of law; or

(3) a person with final policymaking authority caused the

constitutional injury.” Brandt v. Bd. of Educ. of the

City of Chicago, 420 F. Supp. 2d 921, 936 (N.D. Ill.

2006) (citing Calhoun v. Ramsey, 408 F.3d 375, 379 (7th

Cir. 2005); see Monell v. Dept. of Soc. Serv. of the City

of New York, 436 U.S. 658, 691-693, 98 S. Ct. 2018, 56 L.

Ed. 2d 611 (1978)). As relevant here, the only issue

appears to be whether plaintiff can prove that a person

with final policymaking authority caused a constitutional

injury.

Notably, even if a jury finds McDonald liable for

a First Amendment violation, it does not necessarily

follow that there is a basis for imposing Monell

liability against the Board. “Monell’s ‘policymaker’

prong is not a simple determination of whether a person

with policy making authority caused a constitutional

deprivation.” McGreal v. Ostrov, No. 98 C 3958, 2002 WL

1784461, at *3 (N.D. Ill. Aug. 1, 2002). “The

‘policymaker’ prong of Monell requires more than the act

of a policymaker. It is necessary for the policymaker’s

act to have been in conformance with, or in the creation

of, governmental rules that have the effect of law (and
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then the rule must violate the plaintiff’s constitutional

rights).” Id. (citing Auriemma v. Rice, 957 F.2d 397,

400 (7th Cir. 1992) and Gernetzke v. Kenosha Sch. Dist.

No. 1, 274 F.3d 464, 469-470 (7th Cir. 2001)). Moreover,

“a policymaker’s decision will rarely have the force of

policy unless the decision will govern similar issues in

the future.” Id.; see Auriemma, 957 F.2d at 400 (“Unless

today’s decision ought to govern tomorrow’s case under a

law or custom with the force of law, it cannot be said to

carry out the municipality’s policy.”). The parties

should bear the standards for Monell liability in mind as

this case proceeds.

Mnyofu v. Board of Educ., No. 03 C 8717, 2007 WL 1308523, at *9-10

(N.D. Ill. Apr. 27, 2007) (footnotes omitted). We also noted that

“[a]lternatively, in the event a jury finds that only Nelson, not

McDonald, was responsible for removing plaintiff from the assembly

and that his removal violated his constitutional rights, plaintiff

could attempt to hold the Board liable for Nelson’s conduct if he

can satisfy Monell’s policymaking prong.” Id. at *10 n.17. 

The basis for the Board’s motion is simple: neither McDonald

nor Nelson had final policymaking authority, and therefore

plaintiff cannot prove a Monell claim under the policymaking prong.

And in the Board’s view, the court “foreclosed” the possibility of

plaintiff prevailing under the other prongs of Monell. (Board’s

Mem. in Supp. of Mot. for Summ. J. at 4.) 

Plaintiff’s response is threefold. First, he denies that

McDonald and Nelson were not policymakers. Second, he contends

that there is sufficient evidence from which a jury could conclude

that the Board adopted McDonald’s action as its own, or “ratified”

it, and therefore became the author of the action for § 1983
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purposes. Third, he contends that there are triable issues with

respect to the “express policy” and “custom” prongs of Monell. We

will address each argument in turn.

A. Policymakers

Selma McDonald and Celeste Nelson were, respectively, the

principal and assistant principal of Rich Central High School in

April 2005, when plaintiff was removed from a school assembly.

Their status as final policymakers under § 1983 is a question of

state law. See Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir.

2004). The Illinois School Code provides that the Board “has full

power to manage the schools and to adopt all rules and regulations

needed for that broad purpose.” Duda v. Board of Educ., 133 F.3d

1054, 1061 (7th Cir. 1998) (citing 105 ILCS 5/10-20.5). Principals

assume administrative responsibilities under the supervision of the

superintendent and in accordance with the Board’s reasonable rules

and regulations. 105 ILCS 5/10-21.4a. Nothing in the School Code

leads to the conclusion that a principal or assistant principal is

a final policymaker with respect to regulating conduct in the

schools. See Brandt, 420 F. Supp. 2d at 937. 

Plaintiff asserts that the Board relied on a contradictory

argument in its previous motion for summary judgment when it stated

that “the determinations made by the . . . Building Principal and

Assistant Principal were policy decisions.” (Defs.’ Mem. in Supp.

of Mot. for Summ. J. of Oct. 18, 2006 at 12.) But plaintiff
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1

 Immunity under the Act does not attach unless a plaintiff’s injury

results from an act performed or omitted by a governmental employee that is

both a policy determination and an exercise of discretion. See Harinek v. 161

N. Clark St. Ltd. P’ship, 692 N.E.2d 1177, 1181 (Ill. 1998).

In our previous summary judgment ruling, it was unnecessary for us to

reach the immunity issue because we found that much of plaintiff’s tort claim

for intentional infliction of emotional distress was time-barred and that in

any event the complained-of conduct was not sufficiently outrageous. Mnyofu,

2007 WL 1308523, at *14 & n.32. 

2

 The Board has filed a motion to deem admitted statements 4 and 5 of

its Local Rule 56.1 statement of undisputed facts. Statement 4 is “Only the

Board of Education is permitted to make policies which govern the District.” 

Statement 5 is “The employees of the Board of Education are required to carry

out and implement the policies of the Board of Education.” (Def.’s R. 56.1

Statement ¶¶ 4-5.) Plaintiff denies these statements, relying solely on his

argument that the Board previously made a “contradictory” statement. The

Board is correct that this is an improper denial of these statements. We

decline, however, to deem the “facts” admitted because, as stated supra, the

issue is one of state law, and the “facts” simply reflect that law. 

neglects to supply the context of this statement. Defendants

contended that the decisions were “policy decisions” for which the

defendants were entitled to immunity under the Illinois Tort

Immunity Act (the “Act”).1 The Illinois Supreme Court has defined

a “policy decision” as one that requires a governmental employee to

balance competing interests and to make a judgment call as to what

solution will best serve those interests. See Harinek v. 161 N.

Clark St. Ltd. P’ship, 692 N.E.2d 1177, 1181 (Ill. 1998). Whether

an individual had final policymaking authority for Monell purposes

is a different, and much narrower, inquiry from whether he or she

made a “policy decision” under the Tort Immunity Act. Crudup v.

Barton, No. 98 C 1498, 2002 WL 276285, at *6 (N.D. Ill. Feb. 27,

2002).2 

Plaintiff has failed to raise a genuine issue as to whether

McDonald and Nelson were final policymakers under § 1983. 
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3

 In an attempt to intertwine the April 7 incident and the ban,

plaintiff asserts that the president of the school board, Betty Owens,

“promised to ban Mr. Mnyofu from all District property because he had

criticized the Teachers’ Union contract during the assembly.” (Pl.’s Mem. in

Opp’n at 5.) Plaintiff cites Exhibit 35, the Affidvit of Sunni Ali, in

support of this contention. Ali’s affidavit, however, says nothing of the

sort. It simply states that Owens “assured the teachers that Mr. Mnyofu would

be banned from the school” and does not link that assurance to the assembly in

any way. (Pl.’s Ex. 35, ¶ 7.) Therefore, plaintiff’s argument that

“McDonald’s actions at the April 7 assembly were first approved by an

individual policymaker, Betty Owens,” Pl.’s Mem. in Opp’n at 7, is wholly

unfounded. 

B. Ratification

Plaintiff contends that evidence “abounds” from which a jury

could conclude that the Board ratified the decision to remove

plaintiff from the assembly. (Pl.’s Mem. in Opp’n at 5.)

Plaintiff then describes several “facts,” some of which are

distortions or inaccurate descriptions of the evidence, regarding

his interactions with the Board and the high school. Most of these

“facts” relate to the decision to ban plaintiff from school

property, a separate decision that was made by the district’s

superintendent after the assembly incident. In our previous

opinion, we held that restricting plaintiff’s access to the school

was not a First Amendment violation and also found that there was

no evidence to suggest that the ban was issued because of any

viewpoint plaintiff expressed at the assembly. The facts relating

to the ban are not relevant to the decision to remove plaintiff

from the assembly.3 Our focus is strictly on whether the Board

ratified that decision, and there is no evidence that it did so.

We reject plaintiff’s argument that the Board adopted the removal
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of plaintiff from the assembly by failing to investigate the

incident and failing to discipline McDonald. Failing to

investigate an incident or take punitive action against the alleged

wrongdoer does not establish ratification. Baskin v. City of Des

Plaines, 138 F.3d 701, 705 (7th Cir. 1998); Gernetzke, 274 F.3d at

469 (“The argument if accepted would convert every public

employee’s action that a plaintiff wished to challenge into the

action of the employer.”).

Plaintiff has failed to raise a genuine issue as to whether

the Board ratified the removal of plaintiff from the assembly. 

C. “Express Policy” and “Custom” Prongs of Monell

We do not agree with the Board that we “foreclosed” plaintiff

from pursuing a Monell claim under the “express policy” or “custom”

prongs. What we said in our April 27, 2007 memorandum opinion was

that only the policymaking prong appears relevant. 2007 WL

1308523, at *9. Plaintiff was free to argue the other Monell

theories with respect to the instant motion, and we will consider

those arguments. 

Under the “express policy” prong of Monell liability,

plaintiff must establish that the Board has an express policy that,

when enforced, causes a constitutional deprivation. In a brief and

halfhearted footnote, plaintiff contends that the express policy

consists of the guidelines that the Board implemented in late 2002

for operating its meetings. Plaintiff fails to address, however,
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how the guidelines for the governance of Board meetings caused his

removal from the assembly, which is the only alleged deprivation of

his rights at issue. “There must be a ‘direct causal link between

a municipal policy or custom and the alleged constitutional

deprivation.’” Lanigan v. Village of E. Hazel Crest, 110 F.3d 467,

479 (7th Cir. 1997) (quoting City of Canton v. Harris, 489 U.S.

378, 385 (1989)). The school assembly was not a Board meeting and

thus was not governed by the guidelines. Because there is no

evidence that the guidelines caused the alleged deprivation,

plaintiff’s “express policy” argument is rejected.

To establish “custom” liability under Monell, plaintiff must

demonstrate that the Board has a widespread practice that, although

not authorized by written law or express policy, is so permanent

and well-settled that it constitutes custom or usage with the force

of law. Plaintiff contends that the Board had a custom of

“retaliating against critics of its policies” that resulted in his

removal from the assembly. (Pl.’s Mem. in Opp’n at 8.) 

In his Local Rule 56.1 statement, plaintiff sets forth

eighteen “facts” in support of this argument. The Board moves to

strike Statements 1, 4, 6, 8, 9, 10, 12, 13, 14, 16, 17, and 18.

Statement 18 concerns whether we foreclosed plaintiff from pursuing

the “express policy” and custom” prongs of Monell and is more of a

legal argument than a statement of fact. Nonetheless, we have

already decided that plaintiff is not foreclosed from arguing that
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these theories apply, so we decline to strike Statement 18. The

Board submits that we should strike the remaining statements for

various reasons: they are speculative, unsupported or improperly

supported, hearsay-based, and/or consist of improper legal

conclusions. 

“The purpose of the 56.1 statement is to identify for the

Court the evidence supporting a party’s factual assertions in an

organized manner: it is not intended as a forum for factual or

legal argument.” Malec v. Sanford, 191 F.R.D. 581, 585 (N.D. Ill.

2000). We need not discuss each of plaintiff’s statements

individually, but we agree with the Board that Statements 1, 4, 6,

8, 9, 10, 12, 13, 14, 16, and 17 are improper statements of fact.

Moreover, we find that Statement 2 and Statement 7 consist of

improper argument and opinion and that Statement 7 is unsupported

by the evidence cited by plaintiff. Those statements will also be

stricken. We are left with Statements 3, 5, 11, and 15.

Statements 11 and 15 concern events that occurred after the April

7 incident, so those facts are not evidence of any custom that

existed prior to plaintiff’s removal from the assembly. 

The remaining statements, 3 and 5, do not constitute evidence

that there was a custom of retaliating against plaintiff, let alone

that there was any custom “so pervasive that acquiescence on the

part of [the Board] was apparent and amounted to a policy

decision.” See Phelan v. Cook County, 463 F.3d 773, 790 (7th Cir.
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2006). In Statement 3, plaintiff states that the Board “failed to

discipline one of its employees who tried to physically attack

Plaintiff as he was speaking on a public matter at a Board meeting

in December 2002.” (Pl.’s R. 56.1 Statement, ¶ 3.) Plaintiff

cites only to his own affidavit. Both the statement and the

affidavit are vague, and plaintiff fails to describe the alleged

“attack” in any detail. He also fails to set forth any facts

demonstrating that the Board was even aware of the “attack.” In

Statement 5, plaintiff states that in January 2003, the Board

refused to allow him to distribute leaflets expressing his views

but had admittedly previously allowed another citizen to do so.

The two incidents described in Statements 3 and 5 do not amount to

evidence of retaliation against plaintiff, nor of the requisite

“widespread” practice amounting to a policy. See Phelan, 463 F.3d

at 790.

Plaintiff has failed to raise a genuine issue as to whether

the Board had an express policy or a custom that caused him to be

removed from the assembly. 

CONCLUSION

For the reasons explained above, the motion of defendant Board

of Education of Rich Township High School District 227 for summary

judgment is granted. The Board’s motion to deem facts admitted is

denied. The Board’s motion to strike portions of plaintiff’s Local

Rule 56.1 statement is granted in part and denied in part. 
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DATE: June 23, 2008

ENTER: ___________________________________________

John F. Grady, United States District Judge