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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JENNIFER SPRUILL, as legal guardian and next friend 

of “D.N.S.,” a minor,

Plaintiff,

vs.

BOARD OF EDUCATION OF THE CITY OF 

CHICAGO, KAREN CALLOWAY, CORIE 

MORRISON, SHERRY BALL, PATRICIA STUBER, 

and LESLIE GILL,

Defendants.

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20 C 4927

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Jennifer Spruill brings this suit on behalf of D.N.S.—a minor and student at Kenwood 

Academy High School—under 42 U.S.C. § 1983, alleging that the Chicago Board of Education 

and five Kenwood administrators (“Individual Defendants”) violated D.N.S.’s Fourteenth 

Amendment due process rights by failing to protect him from a sexual assault by another student. 

Doc. 1. Defendants move to dismiss the complaint under Civil Rule 12(b)(6). Doc. 16. The 

motion is granted, though Spruill will be given an opportunity to replead.

Background

In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative 

complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. 

N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider 

“documents attached to the complaint, documents that are critical to the complaint and referred 

to in it, and information that is subject to proper judicial notice,” along with additional facts set 

forth in Spruill’s brief opposing dismissal, so long as those additional facts “are consistent with 

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the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) 

(internal quotation marks omitted). The facts are set forth as favorably to Spruill as those 

materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the 

facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United 

States, 881 F.3d 529, 531 (7th Cir. 2018).

In January 2020, D.N.S. was sexually assaulted in a Kenwood bathroom by D.R., another 

Kenwood student. Doc. 1 at ¶¶ 12-13. D.N.S. was not D.R.’s first victim, and many Kenwood 

administrators were aware of at least one prior sexual assault accusation against D.R. Id. at 

¶¶ 14-19. Those administrators included four of the Individual Defendants: Karen Calloway, 

Kenwood’s principal, id. at ¶¶ 7, 16; Sherry Ball, an assistant principal, id. at ¶¶ 9, 17; Patricia 

Stuber, another assistant principal, id. at ¶¶ 10, 18; and Leslie Gill, a dean, id. at ¶¶ 11, 19. (The 

complaint makes no such allegation regarding the fifth Individual Defendant, Corie Morrison, 

another assistant principal. Id. at ¶ 8.) The Board also was aware of the prior accusation(s)

against D.R. Id. at ¶ 15. Yet neither the Board nor Individual Defendants took any action to 

remove D.R. from Kenwood, to monitor him in order to prevent another attack, or to discipline 

him for his prior assault(s). Id. at ¶¶ 20-24.

Aside from D.R.’s history, the Board was aware of widespread student-on-student sexual 

harassment and assault in Chicago public schools. Id. at ¶ 26. As detailed in a 2019 report by 

the U.S. Department of Education’s Office of Civil Rights, Chicago public school students 

frequently report inappropriate sexual touching—often, as with the attack on D.N.S., by repeat 

offenders and in school bathrooms. Id. at ¶¶ 28-29. Yet the Board has not taken systemic action 

to train school staff in preventing sexual violence, to punish offenders, or to protect victims. Id. 

at ¶¶ 30-34.

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Discussion

Spruill asserts two claims on D.N.S.’s behalf, each arising under 42 U.S.C. § 1983. The 

first invokes D.N.S.’s right under the substantive component of the Fourteenth Amendment’s 

Due Process Clause to be free from state-created danger. Doc. 1 at ¶¶ 35-42. In particular, she 

claims that Individual Defendants, by failing to discipline or monitor D.R., and by neglecting to 

ensure that school bathrooms were safe, violated D.N.S.’s rights by “creat[ing] and/or 

increas[ing] the risk that [he] would be physically harmed.” Id. at ¶¶ 38-40. The second is a 

Monell claim against the Board, alleging that its “de facto practices, policies and procedures” 

concerning student-on-student sexual violence caused the deprivation of D.N.S.’s due process

rights. Id. at ¶¶ 43-50; see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

As to Assistant Principal Morrison, the complaint fails to state a claim because it does not 

allege any involvement on his part. See Est. of Perry v. Wenzel, 872 F.3d 439, 459 (7th Cir. 

2017) (“Individual liability pursuant to § 1983 ‘requires personal involvement in the alleged 

constitutional deprivation.’”) (quoting Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 

2017)). The complaint does not allege that Morrison had knowledge of previous sexual assault 

accusations against D.R.; Morrison’s name, in fact, does not appear in the complaint after being

listed in the caption and introduced in the “Parties” section. See Collins v. Kibort, 143 F.3d 331, 

334 (7th Cir. 1998) (“A plaintiff cannot state a claim against a defendant by including the 

defendant’s name in the caption.”); Williams v. Cnty. of Cook, 2010 WL 3324718, at *8 (N.D. 

Ill. Aug. 19, 2010) (“Although the complaint and parties section of the complaint list multiple 

defendants, only [two] are mentioned anywhere in the body of the complaint ... .”).

As to the other Individual Defendants, whose personal involvement is alleged, Spruill’s 

claim fails because the complaint does not allege a violation of D.N.S.’s due process rights. In 

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DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the 

Supreme Court held that while the Due Process Clause protects individuals against government

misconduct, it does not generally impose a duty on the state to protect against harm from private

parties. See D.S. ex rel. Stahl v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) 

(“Although the Due Process Clause of the Fourteenth Amendment prevents the state from 

infringing on an individual’s right to life, liberty, or property, it does not ‘impose an affirmative 

obligation on the [s]tate to ensure that those interests do not come to harm through other 

means.’”) (alteration in original) (quoting DeShaney, 489 U.S. at 195). There are two exceptions 

to the general rule, in which injury at the hand of a private party can give rise to a due process 

claim against a state actor.

The first is called the “special relationship” exception, which stems from the recognition

that “when a state has custody over a person, it must protect him because no alternate avenues of 

aid exist.” Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). This 

exception was acknowledged in DeShaney, but only as applying in custodial situations like

incarceration or involuntary commitment. See 489 U.S. at 198-200 (“[W]hen the State takes a 

person into its custody and holds him there against his will, the Constitution imposes upon it a 

corresponding duty to assume some responsibility for his safety and general well-being.”). 

Indeed, the Seventh Circuit held soon after DeShaney that, for purposes of this exception, there is 

no “special relationship” between public schools and their students. See J.O. v. Alton Cmty. Unit 

Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990) (“We do not suggest that prisoners and mental 

patients are an exhaustive list of all persons to whom the state owes some affirmative duties, but 

the government, acting through local school administrations, has not rendered its schoolchildren 

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so helpless that an affirmative constitutional duty to protect arises.”); accord, e.g., D.S., 799 F.3d 

at 799 ( “[S]chool officials do not have an affirmative duty to protect students ... .”).

The second exception—and the one pertinent here—involves cases of “state-created 

danger.” Doe v. Vill. of Arlington Heights, 782 F.3d 911, 916-17 (7th Cir. 2015). This “narrow” 

exception “applies where the state creates or increases a danger to an individual.” Id. at 917. 

The Seventh Circuit has cautioned that the notion of “creat[ing] or increas[ing]” danger “must 

not be interpreted so broadly as to erase the essential distinction between endangering and failing 

to protect.” Sandage v. Bd. of Comm’rs, 548 F.3d 595, 599 (7th Cir. 2008). Rather, “[w]hen 

courts speak of the state’s ‘increasing’ the danger of private violence, they mean the state did 

something that turned a potential danger into an actual one, rather than that it just stood by and 

did nothing to prevent private violence.” Id. at 600 (emphasis added); see also Estate of Her v. 

Hoeppner, 939 F.3d 872, 876 (7th Cir. 2019) (describing the state-created danger exception as 

applying “when a public official ‘affirmatively places a particular individual in a position of 

danger the individual would not otherwise have faced’”) (emphasis added) (quoting Monfils v. 

Taylor, 165 F.3d 511, 516 (7th Cir. 1998)).

Even when one of these exceptions applies, there is no violation of an individual’s due 

process rights unless the state actor’s conduct “shocks the conscience.” King ex rel. King v. 

E. St. Louis Sch. Dist. 189, 496 F.3d 812, 818 (7th Cir. 2007). This means that the state actor’s 

conduct must be truly “‘egregious’”; “[m]aking a bad decision, or even acting negligently, does 

not suffice to establish the type of conscience-shocking behavior that results in a constitutional 

violation.” Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654-55 (7th Cir. 2011) 

(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)); see also Estate of Her, 939 

F.3d at 876 (“[C]onscience-shocking conduct ... requires a culpable state of mind equivalent to 

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deliberate indifference. Elsewhere we’ve referred to this as a requirement of criminal 

recklessness.”) (citation omitted).

Thus, as the Seventh Circuit has explained, there are three requirements for stating a 

claim under the state-created danger doctrine: “First, in order for the Due Process Clause to 

impose upon a state the duty to protect its citizens, the state, by its affirmative acts, must create 

or increase a danger faced by an individual. Second, the failure on the part of the state to protect 

an individual from such a danger must be the proximate cause of the injury to the individual. 

Third, because the right to protection against state-created dangers is derived from the 

substantive component of the Due Process Clause, the state’s failure to protect the individual 

must shock the conscience.” King, 496 F.3d at 817-18 (citations omitted); accord, e.g.,

Johnson v. Rimmer, 936 F.3d 695, 708 (7th Cir. 2019) (setting forth the same test); Wilson v. 

Warren Cnty., 830 F.3d 464, 469-70 (7th Cir. 2016) (same). But cf. Weiland v. Loomis, 938 F.3d 

917, 920-21 (7th Cir. 2019) (raising, but not resolving, the question whether the “three-part test” 

allows for liability broader than that permitted by DeShaney).

Recognizing that D.N.S. was attacked by another student and not by a state official, 

Spruill’s complaint expressly relies on a state-created danger theory. Doc. 1 at ¶ 37. But the 

complaint fails to satisfy the first requirement of such a claim because it does not allege an 

“affirmative act[],” King, 496 F.3d at 818, by any defendant. The most the complaint alleges of 

any defendant is awareness of D.R.’s proclivity for sexual violence and inaction as to measures 

that might have protected D.N.S. from further violence by D.R. Specifically, the complaint 

alleges that the Board and four Individual Defendants “w[ere] aware of at least one” prior 

incident involving D.R, Doc. 1 at ¶¶ 15-19, but that they “took no action,” id. at ¶¶ 20-23. 

Missing is any allegation of an affirmative act by any defendant. The complaint’s gist, in short, 

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is that school officials knew that a certain student was a predator but stood idly by, thus leading 

to another attack. That conduct may have been negligent—and perhaps a violation of state law 

or federal statutory law, neither of which Spruill invokes—but it does not rise to the level of a 

due process violation under Seventh Circuit precedent interpreting DeShaney. See Weiland, 938 

F.3d at 920 (“[T]he Due Process Clause generally does not condemn official negligence.”).

Spruill’s rejoinder relies entirely on Eilenfeldt ex rel. J.M. v. United C.U.S.D. #304 Board

of Education, 84 F. Supp. 3d 834 (C.D. Ill. 2015). Doc. 20 at 4-5. Eilenfeldt also involved a 

public school student harmed by a fellow student; there, the plaintiff brought a substantive due 

process claim on behalf of a middle schooler whom school officials allegedly failed to protect 

from severe bullying. See 84 F. Supp. 3d at 838-41. In denying a motion to dismiss, the district 

court rejected the defendants’ argument that, because “a failure to act is not actionable under 

substantive due process,” the plaintiff did not state a viable due process claim. Id. at 845 

(internal quotation marks omitted). Spruill reads Eilenfeldt as having “rejected the same 

argument the defense makes here: that inaction cannot serve as the basis of a state-created danger 

claim.” Doc. 20 at 5. In particular, she keys in on the district court’s observation that 

“misbehav[ior] only by inaction do[es] not, in [it]sel[f], supply any reason to dismiss” a due 

process claim. Eilenfeldt, 84 F. Supp. 3d at 845.

As a district court decision, Eilenfeldt is only persuasive authority, not precedential. In 

any event, Spruill misreads Eilenfeldt by conflating two different senses in which an affirmative

act by a state actor might result in a due process violation—one an affirmative act that directly 

harms the plaintiff, and the other an affirmative act that places the plaintiff in danger or increases 

the danger the plaintiff already faces from other sources, thereby creating a future duty to act. 

Eilenfeldt correctly recognizes that a state actor cannot defeat a substantive due process claim—

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which ordinarily requires an affirmative act by the state, see DeShaney, 489 U.S. at 195 (“The 

Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain 

minimal levels of safety and security.”)—simply by arguing that the plaintiff was injured by the 

state actor’s inaction. That is because, as explained above, there are two situations in which the 

state acquires an affirmative duty to act—namely, when a special relationship exists between the 

plaintiff and the state, and when the state creates or increases the danger faced by the plaintiff.

Defendants here make an argument narrower than the one that failed for the Eilenfeldt 

defendants. Defendants here simply point out that the state-created danger doctrine comes into 

play only when “the state, by its affirmative acts, [has] create[d] or increase[d] a danger faced by 

an individual.” King, 496 F.3d at 817-18 (emphasis added); see Doc. 16 at 2-4; Doc. 22 at 1-4. 

In other words, there must be an affirmative act that places the plaintiff in danger or increases the 

danger the plaintiff already faces. Thus, having invoked the state-created danger doctrine, 

Spruill bears the burden of alleging an affirmative act by Defendants that either “created or 

increased” the danger facing D.N.S. Flint v. City of Belvidere, 791 F.3d 764, 770 (7th Cir. 

2015). But Spruill fails to do so: the complaint alleges only that Defendants stood idly by while 

sexual violence became prevalent in Chicago public schools generally and at Kenwood (by D.R.) 

in particular, and that Defendants’ failure to act caused D.N.S. to be assaulted. The complaint

alleges no action taken by any defendant that either placed D.N.S. in danger or increased the 

danger he already faced.

In stark contrast to Spruill, the plaintiff in Eilenfeldt alleged several affirmative acts by 

the defendants there that placed the student at increased risk of bullying by his peers. See 84 

F. Supp. 3d at 838 (“[A]dministrators and teachers facilitated ongoing bullying of J.M. by ... 

actively encouraging bullying ... and punishing J.M. for defending himself while being 

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bullied.”); id. at 839 (“[A teacher] gave J.M. detention for telling two bullies that he was not a 

rapist after those students had called him a rapist in her classroom.”); ibid. (“In one of [a 

teacher’s] classes, J.M. tried to defend himself from bullies. Following the altercation, [the 

teacher] asked the class whether J.M. should be punished by having to write out the preamble to 

the United States Constitution twenty-five times, and the class agreed to impose the 

punishment.”). Thus, it was no defense to the plaintiff’s claim that the bullying was perpetrated 

by other students rather than by the defendants themselves. And that is why the Eilenfeldt 

defendants’ argument failed: because they had affirmatively acted in a way that placed the 

student in increased danger, the state-created danger doctrine applied. Here, Defendants did not 

take any such affirmative acts, so the doctrine does not apply.

As Spruill herself correctly recognizes, “the pivotal question is whether D.N.S. was safe 

before the Defendants’ conduct and unsafe after.” Doc. 20 at 5 (emphasis added); see Sandage, 

548 F.3d at 598 (explaining that there is a due process violation only when “the victim is safe 

before the state intervenes and unsafe afterward”) (emphasis added). What defeats her case is 

that she points to no such conduct by any defendant; rather, she points only to inaction. Doc. 20 

at 5-6 (“By failing to properly discipline D.R. for the first assault or to monitor him in any 

manner thereafter, the Defendants emboldened D.R. to do it again ... . The Board’s inaction led 

directly to D.R. believing he was invincible. ... ‘[T]he Defendants’ ‘inaction’ created a risk of 

harm to D.N.S. that he would not have otherwise faced.”) (emphasis added).

To be sure, the complaint does say three times that Defendants “created or increased” the 

risk of a sexual assault. Doc. 1 at ¶¶ 38-40. But those conclusory legal assertions are 

insufficient to withstand a motion to dismiss, and in any event are belied by the complaint’s 

factual allegations. See Zablocki v. Merchs. Credit Guide Co., 968 F.3d 620, 623 (7th Cir. 2020) 

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(“[W]e need not accept as true statements of law or unsupported conclusory factual allegations.”) 

(internal quotation marks omitted); Doe v. Columbia Coll. Chi., 933 F.3d 849, 854 (7th Cir. 

2019) (“A plaintiff must plead particularized factual content, not conclusory allegations, that 

allows the court to plausibly infer the defendant is liable for the alleged misconduct.”).

Because the complaint fails to allege an affirmative act by any defendant, Spruill’s statecreated danger claim fails. It is therefore unnecessary to address Individual Defendants’ 

arguments that the complaint does not allege proximate causation, Doc. 16 at 4-6, that their 

alleged conduct does not shock the conscience, id. at 6-8, that the complaint does not allege their 

individual involvement, id. at 8-9, and that they are entitled to qualified immunity, id. at 9-10. 

And because the complaint does not allege that D.N.S.’s constitutional rights were violated, there 

can be no Monell claim against the Board. See Word v. City of Chicago, 946 F.3d 391, 395 (7th 

Cir. 2020) (“[B]ecause [the plaintiff] has failed to establish an underlying constitutional 

violation, the district court appropriately dismissed his Monell claim.”); King, 496 F.3d at 817 

(“It is well established that there can be no municipal liability based on an official policy under 

Monell if the policy did not result in a violation of [the plaintiff’s] constitutional rights.”).

Conclusion

Defendants’ motion to dismiss is granted. The dismissal is without prejudice to Spruill 

filing an amended complaint. See Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. 

Ind., 786 F.3d 510, 519 (7th Cir. 2015) (“Ordinarily, ... a plaintiff whose original complaint has 

been dismissed under Rule 12(b)(6) should be given at least one opportunity to try to 

amend ... .”). Spruill will have until May 11, 2021, to file an amended complaint, and 

Defendants will have until June 3, 2021, to file a responsive pleading. If Spruill does not 

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replead, the dismissal will automatically convert to a dismissal with prejudice and judgment will 

be entered.

April 13, 2021 ___________________________________

United States District Judge

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