-14-

however, is not about the facial validity of a Board rule. It is
a retaliation case involving alleged punishment for disfavored
speech. In any event, the immunity question is premature.
Although the complaint is sufficient to state a claim on the First
Amendment counts, we do not yet know each defendant’s alleged role
in the retaliation. So until the record is further developed, we
are not in a position to determine which defendants, if any, may be
entitled to immunity.

This brings us to the intentional infliction of emotional
distress claim. Under Illinois law, the elements of a claim for
intentional infliction of emotional distress are as follows: (i
the conduct involved must be truly extreme and outrageous; (ii) the
defendants must either intend the infliction of emotional distress
or know that there is a high probability that their conduct will
result in such distress; and (iii) the conduct must in fact cause
severe emotional distress. See McGrath v. Fahey, 126 I11.2d 78,
127 Ill.Dec. 724, 533 N.£.2d 806, 809 (1988). Mindful of our
obligation to construe pro se complaints liberally, Mnyofu has
stated a claim based on the First Amendment retaliation
allegations. If, as he contends, defendants struck back at him -—
by intimidating him at Board meetings, barring him from Rich
Central, posting “wanted posters” throughout the school, and
otherwise soiling his name in the community - and solely for

speaking out on matters of public concern, he may be entitled to



5.

Assistant Board Superintendent Tandy provided Mnyofu with a written
explanation which, according to Mnyofu, “revealed that [Rich
Township defendants] were .. . engaged in a ‘cover-up’ to hide
their actions from [Mnyofu] of working in concert with Defendant
Taylor to trample on [his] legal custodial rights.” (Id., @ 42.)

Mnyofu also spoke out at Board meetings from August 2002
through April 2003, and in the local press, about Board
Superintendent Knutson’s “authorization of ‘homosexual safe zones

designated by rainbow triangles displayed on school buildings

without Board approval” (id., (I 67, 76), as well as the Board’s

“pudget deficit, lack of contracts to black businesses, [the]
District’s academic failure of majority Black students, .. . lack
of leadership and an array of public policy concerns.” {Id., 97
68.)

Knutson, Tandy, Rich Central Principal McDonald, Baecher,
Kolosh and Taylor plotted to smear Mnyofu’s name in retaliation for
his complaints. Specifically, “Knutson directed Burnette to
silence and censure [Mnyofu] during the recognition of citizen's
portion of the board’s agenda” at Board meetings by “interrupting

(him] while speaking, allowing others supportive of the rainbow

triangles to interrupt, boo, hiss and verbally attack [him]; [and]
threatening to remove [him] for ‘disorderly conduct.’” (Id., 4
79.) Knutson also “directed McDonald to have large numbers of law

enforcement officers present at Board meetings. McDonald could be



-10-

667-68 (7th Cir. 2002).% The statute of limitations clock begins
to run, or a claim accrues, “when all its elements have come into
existence.” Cathedral of Joy v. Vill. of Hazel Crest, 22 F.3d 713,
717 (7th Cir. 1994). Since “every constitutional tort actionable
under § 1983 is treated as a personal injury, . . . the claim
[accrues] when the injury is inflicted.” Diaz v. Shallbetter, 984
F.2d 850, 855 (7th Cir. 1993). Mnyofu’s injury occurred, and
therefore his claims accrued, on December 3, 2002, the date that
Taylor took over physical custody of Shamari following defendants’
allegations of abuse. On that date, Mnyofu’s interest in the care
of his child was significantly disrupted; he lost custody (actual,
if not legal) of his son. Mnyofu’s Fourteenth Amendment claims,
filed on March 16, 2005, were untimely by over three months.
Accordingly, Counts I, II and III are dismissed.

We now address Mnyofu's claims that defendants violated
his First Amendment rights by retaliating, and conspiring to
retaliate, against him for speaking out on Board employees
unauthorized contact with his son and on various Board policies.
Evaluation of Mnyofu’s retaliation claims involves a three-step

inguiry. First, we must determine whether Mnyofu’s speech was

2section 1983 does not provide its own statute of limitations.
The Supreme Court, in Wilson v. Garcia, 471 U.S. 261, 276-80(1985),
filled that legislative gap by directing district courts to look to
the personal injury laws of the state where the injury occurred to
determine the applicable limitations period. Illinois’s personal
injury statute of limitations is two years. See 735 ILCS § 5/13-202.



-7-

District anymore.” (Id., & 86.)

On these alleged facts, Mnyofu has brought a seven-count
complaint from which we glean the following claims: Fourteenth
Amendment claims for deprivation of Mnyofu’s right in the “care,
custody and control” of his child against the Board, Tandy,
Baecher, Kolosh and Taylor (Counts I and II), and conspiracy to do
the same against Williams, Baecher, Kolosh and Taylor (Count III);
First Amendment claims for retaliation against the Board, Knutson,
Burnette and McDonald (Count V) and for conspiracy to retaliate
against the Board, Knutson, Tandy, McDonald, Baecher, Kolosh and
Taylor (Count IV); a state law claim for intentional infliction of
emotional distress against all defendants (Count VI); and a claim
seeking declaratory relief from a DCFS ruling and a Circuit Court
of Cook County order (Count VII). Mnyofu seeks compensatory and
punitive damages, and an injunction against “further actions
designed to intimidate, harass, and to prevent [Mnyofu] from free
movement on District property.”?

The Rich Township defendants have filed a joint motion to
dismiss for failure to state a claim. Taylor has filed an answer.

DISCUSSION

The purpose of a 12(b) (6) motion to dismiss is to test

'Mnyofu also seeks attorney’s fees under 42 U.S.C. § 1988. The
Supreme Court has made clear, however, that pro se litigants are not
entitled to fee awards under § 1988. See Kay v. Ehrler, 499 U.S. 432,
438 (1991).



-6-

seen visibly pointing [Mnyofu] out to law enforcement officers.
This act, intended to intimidate [Mnyofu] from speaking, made it
appear to those present that [he] posed some ‘threat’ to the public

safety.” (Id., 9 81.) Finally, the Board instituted a new policy

whereby citizens wishing to speak at Board meetings were first
required to write their name, address and question or comment on an
index card.

Other acts of retaliation included sending a letter to
Mnyofu from Rich Central barring him from the school “for any
reason” under threat of arrest and prosecution; posting a “wanted
picture” of Mnyofu throughout Rich Central; giving false statements
to the DCFS during its investigation; spreading false rumors
regarding the DCFS investigation and the domestic battery case;
sending copies of police reports and witness statements from the
battery case to “members of the community”; and punishing Shamari
by suspending him during the 2002-2003 school year for an alleged
infraction that occurred the previous year. (Id., G1 57, 68.)

Finally, on April 21, 2003, at the suggestion of his
counsel in the battery case, Mnyofu went to the Board’s offices to
deliver to Knutson a copy of the not guilty verdict. McDonald saw
Mnyofu approaching and alerted security who, along with McDonald,
followed Mnyofu to Knutson’s office. Mnyofu asked Knutson to
“call off” McDonald. In explaining to Mnyofu why she and security

had followed him, McDonald stated “You’re not a parent in this


Se
Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996); Curtis v. Bembenek, 48
F.3d 281, 283 (7th Cir. 1995) (both citing Haines v. Kerner, 404
U.S. 519, 520 (1972)).

We first take up Mnyofu’s claims that defendants deprived
him, or conspired to deprive him, of his constitutional interest in
the upbringing of his child. The Fourteenth Amendment’s Due
Process Clause guarantees more than fair process; it includes a
substantive component that “provides heightened protection against
governmental interference with certain fundamental rights and
liberty interests.” See Washington v. Glucksberg, 521 U.S. 702
719 (1997). The Supreme Court has long recognized a fundamental
liberty interest in the “care, custody and control” of one’s
children, which includes the right to “establish a home and bring

up children” and “to control the education of their own.” Troxel

v. Granville, 530 U.S. 57, 65 (2000) (quoting Meyer v. Nebraska,

262 U.S. 390, 399 (1923)); see also Santosky v. Kramer, 455 U.S

745, 753 (1982) (discussing “[t]he fundamental liberty interest of
natural parents in the care, custody and management of their
child”). Mnyofu claims that this right was violated when
defendants conspired to, and did, cause Shamari to be taken from
his custody by making false allegations of child abuse.
Defendants argue that the claims are untimely. We agree.
Section 1983 claims arising in Illinois are governed by a two-year

limitations period. See Licari v. City of Chicago, 298 F.3d 664,



03~-8717.051-TCM November 1, 2005

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, et al.,

Defendants.

MEMORANDUM OPINION

Before the court is defendants’ motion to dismiss. For
the reasons stated below, the motion is granted in part and denied
in part.

BACKGROUND

Pro se plaintiff Komaa Mnyofu has brought this 42 U.S.C.
§ 1983 action against the Board of Education of Rich Township High
School District 227 (the “Board”), Board Superintendent Brian
Knutson, Assistant Board Superintendent Larry Tandy, Board
President Edwin Burnette, Rich Central High School (“Rich Central”)
Principal Selma McDonald, Rich Central Assistant Principal Roseanne
Williamson, Rich Central Dean of Students Helga Spoolstra, Rich
Central Social Worker Viola Baecher, Rich Central Nurse Diane
Kolosh (collectively, the “Rich Township defendants”), and Mnyofu’s

ex-wife Janice Taylor. The complaint alleges violations of



-12-

Although his complaint was voiced at a public meeting, it addressed
only his parental rights, and did not implicate defendants’ conduct
with respect to anyone else. His purpose was not to “alter public
opinion,” Crowley v. McKinney, 400 F.3d 965, 973 (7th Cir. 2005) or
to “bring wrongdoing to light,” Linhart v. Glatfelter, 771 F.2d
1004, 1010 (7th Cir. 1985), but simply to resolve a personal
complaint. Therefore, Mnyofu’s statements regarding the employees
contact with Shamari fail as a matter of law to relate to a matter
of public concern and cannot support a First Amendment claim.
Defendants do not dispute that the remainder of Mnyofu’s criticisms
related to matters of public concern.

Defendants’ next argument is that the intracorporate
conspiracy doctrine defeats Mnyofu’s First Amendment conspiracy
claim. Under the intracorporate conspiracy doctrine, “a conspiracy
cannot exist solely between members of the same entity” if the
allegedly unlawful acts are within the scope of employment. Payton

v. Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 632 (7th

Cir. 1999). This argument goes nowhere. Defendants assert that
since they are all employed by Rich Township, there can be no
conspiracy. But defendants fail to address the doctrine’s all-
important “scope of employment” qualification. More fundamental,
the complaint alleges that Taylor, a non-Rich Township employee,
was a co-conspirator. (See Compl., WI 83.) Although that

allegation is not where it should be - it is pled under the



-ll-

constitutionally protected. Second, we must evaluate whether
defendants’ actions were motivated by Mnyofu’s constitutionally
protected speech. Finally, if Mnyofu can establish that his speech
was a motivating factor in defendants’ actions, we must assess
whether defendants would have taken the same action irrespective of
his First Amendment rights. Kokinnis_v. Ivkovich, 185 F.3d 840,
843 (7th Cir. 1999); see also Landstrom v. Tllinois Dept. o hild
& Fam. Sves., 699 F.Supp. 1270, 1278 & n. 17 (N.D. Ill. 1988)
{analysis used to evaluate First Amendment retaliation claim by
public employee applies equally to private individual’s retaliation
claim).

Defendants first contend that Mnyofu’s complaints
regarding Board employees’ meetings with his son were not
constitutionally protected. To fall under the cloak of the First
Amendment, expression must “touch upon a matter of public concern,”
a requirement satisfied if the speech can fairly be said to relate
to a matter of political, social, or other concern of the
community, rather than merely a personal grievance. See Connick v.
Meyers, 461 U.S. 138, 146-48 (1983). Whether statements address a
matter of public concern is a question of law, and “depends upon

content, form and context.” Landstrom _v. Illinois Dept. of

Children & Family Svcs., 892 F.2d 670, 678-79 (7th Cir. 1990).

Mnyofu requested an explanation as to why Board employees were

“treating” and meeting with Shamari without his permission.



-8-
the sufficiency of the complaint, not to resolve the case on the
merits. 5B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1356, at 354 (3d ed. 2004). When

evaluating such a motion, the court must accept as true all factual
allegations in the complaint and draw all reasonable inferences in

the plaintiff’s favor. Hentosh v. Herman M. Finch Univ. of Health

Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999); Jang v. A.M. Miller
& Assocs., 122 F.3d 480, 483 (7th Cir. 1997). Dismissal is
appropriate only if “‘it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations.’” Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.
1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984));

Jones v. General Elec. Co., 87 F.3d 209, 211 (7th Cir.), cert.

denied, 519 U.S. 1008 (1996)

Moreover, the court has a special responsibility to
construe a pro se complaint liberally and to “take appropriate
measures to permit the adjudication of pro se claims on the merits,
rather than to order their dismissal on technical grounds.” Donald

v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996);

see also Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304, 307

(7th Cir. 1993) (a pre se complaint, “however inartfully pleaded,”
should be liberally construed). Accordingly, when reviewing a pro
se complaint, the court must employ standards less stringent than

if the complaint had been drafted by counsel. Antonelli v.



-4-

could not return to his father’s home because he (Mnyofu) “had been
arrested . . .andwas.. . in jail.” (Id., 4 55.) This was a
lie told to Shamari to explain why he had to go home with Taylor.
Taylor would retain physical custody of Shamari until his
emancipation in March 2004.

On December 9, 2002, based on Taylor’s and Baecher’s
allegations, Mnyofu was charged with criminal domestic battery. A
bench trial was held, and Mnyofu was found not guilty. Meanwhile,
the DCFS conducted an investigation and concluded that the
allegations of abuse were “founded.”

From December 4 through December 19, 2002, while in
Taylor’s custody, Shamari did not attend school. Baecher visited
Taylor’s home several times during that period to deliver school
work for Shamari. Mnyofu obtained a court order on December 13
that commanded Taylor to “immediately re-enroll Shamari Jones in
Rich Central.” (Id., 97 29.} Taylor did not comply, and was aided
by Rich Township defendants (unnamed) who issued “excused absences”
for Shamari. Taylor returned Shamari to Rich Central only after
she received a second court order threatening incarceration.

Mnyofu also learned that Baecher had been “treating”
Shamari for “mental concerns,” so he requested an explanation at a
December 2002 Board meeting as to why Rich Township employees were
meeting with Shamari and Taylor, the non-custodial parent, without

his knowledge or consent. At the February 2003 Board meeting,



“15.

relief. Defendants correctly assert that the claim is time-barred
insofar as it is based on the alleged fabrication of child abuse.

Finally, Mnyofu’s request for declaratory relief is
denied because this court is not the proper forum to seek relief
from the decisions of the DCFS or the Cook County Circuit Court.
See Youn v. Murphy, 90 F.3d 1225, 1230 (7th Cir. 1996)
(“[L]itigants who feel a state proceeding has violated their
constitutional rights must appeal that decision through their state
courts and thence to the Supreme Court.”).

In sum, Counts I through III, which allege violations of
Mnyofu's Fourteenth Amendment rights in the upbringing of his
child, are dismissed as untimely. The First Amendment retaliation
claims, Counts IV and V, will stand except for the allegation that
Mnyofu was retaliated against for objecting to defendants’
unauthorized contact with his son. Count VI, claiming intentional
infliction of emotional distress, states a claim save the
limitation discussed above, and Count VII is dismissed.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss

[37-1] is granted as to Counts I, II, III and VII, and denied as to

Counts IV, V and VI.



-3-

In another attempt to substantiate her allegations of
abuse, Taylor, on October 4, 2002, telephoned Baecher, a social
worker at Rich Central. Taylor summarized the conversation in a
journal entry:

10/4/02 (Friday AM) Called Rich Central
and spoke with social worker Baecher and
explained the two incidents (September 5
& October 2, 2002) that had happened. I
wanted her to speak to Shamari to verify
what had happened and document it. Also
to speak with TF North High School about
Shamari attending there if I got custody
back.

(Id., 9 25.) Taylor also had conversations in October 2002 with

Rich Central Assistant Principal Williamson regarding whether
Shamari could still attend Rich Central if he lived with Taylor
{who presumably lived outside the school district).

Two months later, on the morning of December 3, Baecher
and Rich Central nurse Kolosh, with Taylor present, telephoned the
Illinois Department of Children and Family Services (“DCFS”) from
Baecher’s office to falsely report evidence of alleged abuse. They
claimed to have observed “scratches” on Shamari’s neck, and
Baecher, in a later written report, claimed to have learned that
Shamari told a fellow student that “his father had beaten him.”
(Id., {I 51.) Later that day, Shamari was taken to the Country
Club Hills police station where police officers, a ODCFS
investigator, Taylor and Beacher “coached” him to give statements

of alleged abuse. One of the officers then told Shamari that he



-2-
Mnyofu’s Fourteenth Amendment right in the “care, custody and
control” of his child and his First Amendment right of free speech.
The following facts, drawn from the complaint, are taken
as true for purposes of this motion. Mnyofu and Taylor have a son,
Shamari Jones, who in 2002 was a student at Rich Central in Olympia
Fields, Illinois. Mnyofu has had sole legal custody of Shamari
since October 2000. Beginning in August 2002, in an effort to get
custody transferred to Taylor, she and several Rich Township
defendants agreed to fabricate allegations that Mnyofu was
physically abusing Shamari. To manufacture a record, Taylor, on
both September 5 and October 2, 2002, telephoned the Country Club
Hills, Illinois police department to report “domestic disturbances”
at Mnyofu’s residence where Shamari was living. Officers were
dispatched to Mnyofu’s home on both occasions, but no police report
was filed regarding any abuse. One of the officer’s “shift
summary” logs from September 5 reads:
R/P Janice Taylor called this PD and
explained that her son Shamari J. Jones
M/B 032286 called her and advised that
his father whom he is staying with is
being verbally abusive towards him. R/O
at this time went to the father’s home
18720 Lee and spoke to subject Komaa
Mnyofu M/B 073157 who advises that he has
court custody of their son and that his
son became angry, and called his mother
when he was told to clean up his room.
R/O observed no injuries or any signs of

a physical altercation between father and
son.

(Compl., { 23.)



-13-
retaliation count instead of the conspiracy count - it is in the
complaint, and under the more relaxed standard of review accorded
pro se filings, it is well-pleaded. The intracorporate conspiracy
doctrine does not apply.

Defendants’ final argument on the First Amendment claims
is that they are entitled to qualified immunity. Government
employees performing discretionary functions are entitled to
qualified immunity from liability arising out of conduct that “does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v..
Fitzgerald, 457 U.S. 800, 818 (1982). The question, then, is

whether it was “clearly established” that a public school employee
could not retaliate against Mnyofu in the manner alleged for his
constitutionally protected expression. Put another way, was it
reasonable for defendants to believe that they could retaliate
against Mnyofu? See N, zny_v. Podlesny, 92 F.3d 446, 456 (7th
Cir. 1996) (court must ask “whether a reasonable state actor would
have known that his actions, viewed in light of the law at the
time, were unlawful”). Neither side addresses these questions.
Defendants select one among many alleged retaliatory acts, the
Board’s implementation of an “index card” rule for public comment
at meetings, and argue that the rule was a reasonable time, place
and manner restriction under the First Amendment. Mnyofu, without

the benefit of counsel, simply argues the opposite. This case,



-16-

DATE: November 1, 2005

ENTER: OAS Ly

Jolfn fF. Grady, United scarf oiseesce Judge