So when the FAC here alleges that the action of which Brogan
complains represented the conduct of policymakers (FAC qq 15-17),
those averments must be taken as gospel for Rule 12(b) (6) purposes.
And the same is true of the allegations in FAC 4 14, which assert
direct failures on Board’s part that themselves violated Brogan’s
constitutional rights.

Nothing said here should of course be taken as an expression
of this Court’s view as to whether, when this case moves from the
pleading stage to the need to provide proof of the FAC‘s
allegations, Brogan will be able to deliver as advertised. For now
it suffices that he stays in court on the strength of his
allegations, which must be taken as true at this point. Board’s
motion is denied, and it is ordered to answer the FAC on or before
August 10. This Court will retain the previously scheduled 9 a.m.

August 22 status hearing.

Cte. Westar

Milton I. Shadur
Senior United States District Judge

Date: July 30, 2001

*(... continued)

opposite position, one that rejects “[bloilerplate allegations of
a municipal policy, entirely lacking in any factual support that a
city policy does exist....” But that quotation was in turn drawn
from an opinion issued in the same year as Strauss (1985 was
apparently not a good vintage year), and counsel for any municipal
body, whose business it is to keep current on such matters, surely
ought to be aware that suggestions to that effect are clearly bad
law at this time (it is reasonable to expect that McCormick would
be required reading in every public law office).

3

cu\peext\bregan


Minute Order Forks (06/97)

United States District Court, Northern District of Minois

-
N: f Assis d Jud i r Sitting Judge if Oth
Mor Magistrate Judge Milton 1. Shadur than Assigned Judge
CASE NUMBER 01C 4216 DATE 7/30/2001
CASE Thomas J. Brogan vs. Board of Education, et al
TITLE . be ee moe

{I the following box (a) indicate the party filing the motion, c.g. plaintiff, deifendant, 3rd party plaintiff, and (b) state briefly the natur
of thé motion being presented]

MOTION: Hate oune received 4
City of Chicago’s motion to dismiss
DOCKET ENTRY:
() L_| Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Qa Answer brief to motion due___. Reply to answer brief due
(4) oO Ruling/Hearing on set for_— at
(5) im Status hearing[held/continued to] [set for/re-set for] on_____s set for at_
(6) ia Pretrial conference[held/continued to] [set for/re-set for] on set for at.
(7) Oo Trial[set for/re-set for] on at
(8) ia) [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) [General Rule2! OFRCP41(a)(1) ( FRCP41(a)(2).
(do) [Other docket entry} | Enter Memorandum Opinion and Order. Board’s motion is denied, and it is

ordered to answer the First Amended Complaint on or before August 10. This Court will retain the
previously scheduled 9 a.m. August 22 status hearing.

dl) [For further detail see order attached to the original minute order.]

No notices required, advised in open court

No notices required.
umber of notices

Notices mailed by judge’s staff.
v y judge's s used ne
Notified counsel by telephone a date doce
Docketing to mail notices. .
Mail AO 450 form. ockeing fe nits \
Copy to judge/magistrate judge,
xgf2001
courtroom dst nail notice
SN deputy's ow
initials

Date/time received in
central Clerk's Office mailing deputy initials



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

THOMAS 3. BROGAN,
Plaintiff,

Vv. No. O01 C 4216
BOARD OF EDUCATION of the CITY OF
CHICAGO, a body politic and corporate,
NETTLEHORST LOCAL SCHOOL COUNCIL, SUSAN
KURLAND, Ph.D., and MARY PAT HARTUNG,
individually,

ROSKETED
AUG 0 2 2001

Defendants.

MEMORANDUM OPINION AND ORDER

Thomas Brogan (“Brogan”) has brought a 42 U.S.C. § 1983

(“Section 1983") action against two entity defendants and two
individual defendants: Chicago School Reform Board of Trustees
(“Board”), the Nettlehorst Local School Council (“Council”), the

Principal of Nettlehorst School and Council’s Chairman-President.

Board has just tendered -- to be presented on August 1 -- its
Fed. R. Civ. P. (“Rule”) 12(b) (6) motion to dismiss Brogan’s
Amended Complaint (“AC”), asserting that it is impermissibly sued

on respondeat superior grounds in violation of the principle

announced in the seminal decision in Monell v. New York City Dep‘t

of Soc, Serv., 436 U.S. 658, 691 (1978). For the reasons briefly
stated in this memorandum opinion and order, Board’s motion is
denied and it is ordered to answer the AC.

For too long a period our Court of Appeals’ opinion in Strauss
yv. City of Chicago, 760 F.2d 765 (7 Cir. 1985) had created

Catch-22 situation in which, to stay in court in the face of


Rule 12(b) (6) motion, a plaintiff had to allege specific facts to

support a Section 1983 action against a municipality, even though
by the very nature of things those facts were likely to be
obtainable only through post-filing discovery. Although a number
of District Judges (including the writer) viewed that result as a
solecism, our task as District Judges called for us to adhere to
Strauss -- a task akin to that described in stanza 2 of Tennyson’s

The Charge of the Light Brigade:

Someone had blundered:
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die.
But later developments, more consistent with the notice
pleading (not fact pleading) regime dictated by the Rules (see,

e.g., Rule 8(a)), have overtaken that unfortunate approach.

Leatherman v. Tarrant County Narcotics Intelligence & Coordination

Unit, 507 U.S. 163, 164 (1993) has made it plain that factual
specificity in complaints is not called for except as expressly
demanded by Rule 9(b). And adhering to Leatherman’s teaching, our
Court of Appeals has flatly rejected the kind of position sought
to be advanced by Board here. Indeed, the opinion in McCormick v.
City of Chicago, 230 F.3d 319, 323-25 (7° Cir. 2000) might well
have been written for this case in spelling out in detail why

Board’s approach here is wrong.*

*Board’s Motion at 6 has quoted from Sivard v. Pulaski County,
17 F.3d 185, 188 (7 Cir. 1994) in attempted support of the
(continued...)