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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Dominique Henderson, individually and as )

Mother and Next Friend of A.H., a Minor, )

)

Plaintiff, )

)

v. )

)

Dekalb Community Unit School District 428; )

Jamie Craven, individually and as agent; )

Cristy Meyer, individually and as agent; ) Case No. 3:20-cv-50124

Tim Vincent, individually and as agent; )

Brant Boyer, individually and as agent; ) Honorable Iain D. Johnston

John Panek, individually and as agent; )

Amanda Baum, individually and as agent; )

Jennie Gammelsgaard, individually and as )

agent; Kyle Gerdes, individually and as )

agent; Sharon Carani, individually and as )

agent; and Doe Bus Driver, individually )

and as agent of Dekalb Community Unit )

School District 428, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Dominique Henderson brings this case on behalf of her son A.H., a former

student at Clinton Rosette Middle School, in Dekalb Community Unit School District 428

(“District 428”). A.H. was allegedly subjected to constant bullying by other students during the

2018-2019 school year, culminating in an attack in spring 2019 that caused him physical injury.

Henderson alleges she was forced to move to a different school district because the staff and

administration in District 428 failed to protect A.H. from the bullying and showed deliberate

indifference towards the widespread custom of bullying in the school. Henderson brought claims

against District 428 and various staff and administrators (collectively, “District 428” or
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“Defendants”) for willful and wanton conduct, intentional infliction of emotional distress,

indemnification under the Illinois Family Expense Act, Section 1983 substantive due process,

and Monell. Henderson filed an amended complaint, dkt. 15, and District 428 answered, dkt. 20.

After some written discovery, District 428 moved for judgment on the pleadings with respect to

Counts VI (Monell) and VII (substantive due process), raising the same arguments made in the

pending motion. Dkt. 32. Henderson filed a second amended complaint, which is the operative

complaint here. Dkt. 43. District 428 then moved to dismiss for failure to state a claim based on

the failure to plead a constitutional violation. Dkt 45. The Court grants Defendants’ motion to

dismiss and denies Plaintiff’s request for leave to file a third amended complaint. 

I. ALLEGED MISCONDUCT

Henderson alleges that her son A.H. was a target of bullying by other students at Clinton

Rosette Middle School, and that faculty and staff were made aware of this conduct and did

nothing to stop it. Dkt. 43, ¶ 25-27. Specifically, Henderson alleges that A.H. was bullied (1) on

the playground, (2) during the lunch hour, (3) during third block class (August 15, 2018), (4) in

the school hallway after school (August 24, 2018), (5) on the school bus (March 1, 2019), and

that (6) he was attacked when he got off the school bus (March 1, 2019), and (7) his headphones

were broken by one of his peers. Id. at ¶¶ 6-7, 28. Before the incident on March 1, 2019,

Henderson met with school administration and staff multiple times regarding the bullying that

A.H. was experiencing. Id. at ¶ 31. Henderson claims that the ongoing bullying caused A.H.

physical harm, educational and social setbacks, and emotional distress. Id. at ¶ 39. As a result of

all this, Henderson alleges she was “forced to move to another school district to ensure the safety

of her son.” Id. ¶ 8.
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II. LEGAL STANDARD 

Under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to

the non-moving party, accept as true all well-pleaded facts, and draw all reasonable inferences in

favor of the non-moving party. Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013). To

survive Defendants’ motion to dismiss, the complaint must state a claim “that is plausible on its

face.” Id.; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. This factual content must be “enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. Generally, this Court’s consideration is limited to the

pleadings, any attached documents which are central to the complaint and referred to within, and

facts subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007); Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). But, sometimes, courts allow

parties to add facts consistent with their pleaded claims, but not new claims, in their response

briefs to motions to dismiss. Walker v. Thompson, 288 F.3d 1005, 1008 (7th Cir. 2002). The

Twombly and Iqbal pleading standard equally applies to Monell claims. McCauley v. City of

Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

III. ANALYSIS

For a local governmental body, like a school district, to be liable under Monell, a plaintiff

must plausibly allege an underlying constitutional injury and plausibly allege that the defendant’s

policy, custom, or practice both “causes” and “is the moving force behind” that constitutional

injury. Wilson v. Cook County, 742 F.3d 775, 779 (7th Cir. 2014); Thomas v. Cook County
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Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir. 2009). Because a Monell claim cannot exist without

a constitutional injury, the Court will first address the constitutional injury alleged: substantive

due process violation under 42 U.S.C. § 1983. If there is no constitutional injury, the Monell

claim cannot survive. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).

A. Count VII: Section 1983 Substantive Due Process

Section 1983 “provides a remedy for violations of federal rights committed by persons

acting under the color of state law.” First Midwest Bank, 988 F.3d at 986. Thus, a § 1983 claim

requires that a constitutional injury exists. The Due Process Clause of the Fourteenth

Amendment “is a restraint upon governmental action . . . [and] does not impose a duty on the

state to protect against injuries inflicted by private actors.” First Midwest Bank v. City of

Chicago, 988 F.3d 978, 987 (7th Cir. 2021) (emphasis in original). Its purpose is “to protect the

people from the State, not to ensure that the State protect[s] them from each other.” DeShaney v.

Winnebago Cty. Dep’t of Soc. Svcs., 489 U.S. 189, 196 (1989). “The state does not have a dueprocess duty to protect against acts of private violence.” First Midwest Bank, 988 F.3d at 987. A

narrow exception to the rule in DeShaney applies when the state-created the danger. See Doe v.

Village of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015) (granting Rule 12(b)(6) motion

to dismiss claim of state-created danger). Under the state-created danger exception, “a plaintiff

must show that the state affirmatively placed him in a position of danger and that the state’s

failure to protect him from that danger was the proximate cause of his injury.” First Midwest

Bank, 988 F.3d at 988 (citing Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th

Cir. 2009)). This must be a “foreseeable type of risk to a foreseeable class of persons,” not a

“generalized risk of indefinite duration and degree.” Id. at 989. “Only the most egregious official

conduct will satisfy this stringent inquiry.” Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d
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647, 654 (7th Cir. 2011). The rule of DeShaney cannot be circumvented by broadly interpreting

what is meant by “increase” so as to erase the distinction between endangering and failing to

protect. Doe, 782 F.3d at 917. “Increasing danger” means the state did something that turned a

potential danger into an actual one, not that the state merely stood by and did nothing to prevent

private violence. Id.

Henderson alleges that District 428 has no “bullying policy” to discuss with students and

parents. Dkt. 43, ¶ 83. She alleges that A.H. was bullied and suffered injuries as a result, and that

neither the school nor District 428 did anything to protect A.H. Henderson further alleges that

this amounts to “deliberate indifference” and “reveal[s] an obvious need for training [sic]

bullying, discipline, reporting obligations, and supervision.” Id. at ¶ 84. In support of Count VII,

Henderson further uses all the buzz phrases relating to a substantive due process claim:

“so egregious it rises to the level of conscious-shocking [sic],” id. at ¶ 80;

the “proximate cause” of A.H.’s injury, id.;

“arbitrary and capricious,” id. at ¶ 81;

“not rationally related to any legitimate interest,” id.;

“deliberate and intentional,” id. at ¶ 85; and

with “deliberate indifference to and/or reckless disregard for” A.H.’s rights, id. at ¶ 86.

But the Second Amended Complaint fatally fails to include any factual allegations showing that

Defendants created or increased the danger to A.H. The entire gravamen of the pleading is the

various Defendants’ failures to act. Dkt. 43, at 2 (“staff failed to address the bullying issue”), 3

(“no action taken”), 8 (“failed to take action to stop it”), 9 (“In fact, Defendants [sic] actions of

continuing to place A.H. in the same classroom and on the same lunch period of those bullying

him, after being made aware of the bullying he was experiencing, was egregious and increased
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the danger to A.A., causing injury to him.”), 10 (“too no action”), 17 (“the actions of Defendants

resulted from, and were taken, pursuant to a de facto policy and widespread custom of not

preventing, investigation, and properly disciplining incidents of bullying.”). And the only remote

attempt to plead some manner of increasing danger simply avers that danger was increased by

failing to take actions. This is precisely the type of attempt the Seventh Circuit has repeatedly

rejected. See Doe, 782 F.3d at 917. Maintaining the status quo does not create or increase

danger. Dodd v. Jones, 623 F.3d 563, 568 (8th Cir. 2010); Bukowski v. City of Akron, 326 F.3d

702, 709 (6th Cir. 2003).

Although this Court is sympathetic to Henderson’s concerning allegations of schoolsanctioned bullying and student-on-student violence, DeShaney controls the analysis. The

Fourteenth Amendment only protects A.H. from Defendants’ own actions, not from the actions

of another student. Henderson argues that the state-created danger exception applies, but the

Court disagrees. Her allegations attempt to cast as affirmative actions the inactions of

Defendants. A.H. was in the same classroom, on the same lunch period, and on the same school

bus as those who bullied him. That he was “affirmatively” placed there at the beginning of the

term does not satisfy the requirement that the government actors create or increase the danger.

On the face of the Second Amended Complaint, Defendants merely maintained a risk of private

harm. They did not increase it, despite Henderson’s use of that word throughout.

In an effort to plead affirmative actions that increased the danger to A.H., Henderson’s

brief in response to the motion to dismiss appears to attempt to add allegations beyond those in

the Second Amended Complaint. Dkt. 49, at 3. But these efforts are unavailing as they suffer the

same fatal defect; namely, they specifically allege no change in circumstances that increased the

danger to A.H: “Defendants increased danger to A.H. by placing him in the same classroom of
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those known to consistently bully him; Defendants increased the danger to A.H. by putting him

in one [sic] the same lunch period as those known to consistently bully him.” Dkt. 49, at 3

(emphasis added). Again, failing to prevent the harm is simply not the same as creating or

increasing the risk of harm, which is a fundamental requirement for this type of substantive due

process claim. Doe, 782 F.3d at 917.

Courts have consistently held that “a school’s failure to prevent student-on-student

harassment, assault, and bullying is not a state-created danger.” Brookman v. Reed-Custer Cmty.

Unit, Sch. Dist. 255-U, No. 18- cv-7836, 2019 U.S. Dist. LEXIS 166956, at *19 (N.D. Ill. Sep.

27, 2019) (collecting cases); see also First Midwest Bank, 988 F.3d at 990 (collecting local

cases). All other federal circuit courts interpret DeShaney in this way. First Midwest Bank, 988

F.3d at 990 (collecting circuit cases).

Thus, Henderson has not plausibly alleged a constitutional injury because the alleged

conduct does not support a reasonable inference that the state created the danger, and the

Fourteenth Amendment does not protect individuals against private violence.

B. Count VI: Monell Claim

“A municipality is a ‘person’ under § 1983 and may be held liable for its own violations

of the federal Constitution and laws.” First Midwest Bank, 988 F.3d at 986 (quoting Monell v.

Dep’t of Soc. Svcs., 436 U.S. 658, 690-91 (1978)). In the Seventh Circuit, municipal liability

under § 1983 is limited to when three situations exist:

(1) an express policy that causes a constitutional deprivation when enforced;

(2) a widespread practice that is so permanent and well-settled that it constitutes a custom

or practice; or

(3) an allegation that the constitutional injury was caused by a person with final

policymaking authority.
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Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019) (quotation marks omitted). Monell

imposes a high bar for liability; the municipality’s action must have been taken with “deliberate

indifference” to one’s constitutional rights and must have been the “moving force” behind the

constitutional violation. First Midwest Bank, 988 F.3d at 987. Both are necessary. Id.

This Court’s analysis of the Monell claim need not go any further. There must be a

constitutional injury before the court can undertake a municipal liability analysis. The only

constitutional violation alleged by Henderson is a Fourteenth Amendment deprivation of rights,

which this Court dismissed above. See supra, Section III.A. Therefore, because there was no

underlying constitutional violation, there can be no municipal liability. Sallenger v. City of

Springfield, 630 F.3d 499, 505 (7th Cir. 2010) (“Accordingly, because there is no underlying

constitutional violation, the City cannot be liable under Monell.”). Henderson’s claim under

Monell is dismissed.

C. Counts I – V: Supplemental State Law Claims

Henderson’s first five counts allege claims arising under the laws of the State of Illinois.

This Court’s jurisdiction over these state-law claims is supplemental because Counts VI and VII

were brought under its original jurisdiction in 28 U.S.C. § 1331. But supplemental jurisdiction

over state-law claims is discretionary when a federal court no longer retains its original

jurisdiction, as is the case here. Thus, the Court declines to exercise its supplemental jurisdiction

under 28 U.S.C. §1367(c)(3) and dismisses without prejudice Counts I through V for lack of

subject-matter jurisdiction. See Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999)

(presumption against retaining jurisdiction when federal claims are dismissed).

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In response to the motion to dismiss, Henderson requests leave to file a third amended

complaint. That request is denied for two reasons. First, Henderson had multiple opportunities to

amend, including with the benefit of discovery, after having already been confronted with these

same arguments. Dkt. 32. See Adams v. City of Indianapolis, 742 F.3d 720, 724 (7th Cir. 2014)

(plaintiff already given opportunity to amend). Second, Henderson’s request was not made by

way of a separate motion under Rule 15 but was merely incorporated into a response brief and

without attaching the proposed amended pleading that would have allegedly cured the defects. 

United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1361-62 (11th Cir. 2006); Dynasty Int’l

LLC v. Lexington Ins. Co., Case No. 2:15-CV-374 JD, 2016 U.S. Dist. LEXIS 78443, at *15

(N.D. Ind. June 16, 2016) (“A motion to amend a complaint, however, must be filed separately,

rather than incorporated into a response to a motion to dismiss.”); see also Fed. R. Civ. P. 7(b).

IV. CONCLUSION

For the above reasons, Defendants’ motion to dismiss for failure to state a claim [45] is

granted. Henderson’s request for leave to file a third amended complaint [49] is denied. All

counts are dismissed. Counts VI and VII are dismissed with prejudice. The remaining counts are

dismissed without prejudice. This case is terminated.

Date issued: June 30, 2021 By: __________________________

IAIN D. JOHNSTON

United States District Judge