Opinion
Case No. 01 C 5794
August 19, 2002
ORDER
Through his mother, plaintiff Geoffrey A. Carr, a minor student formerly enrolled at Clissold Elementary School ("Clissold"), pursues this action against Kevin J. McCarthy, principal of Clissold Elementary, the Chicago Board of Education (the "Board"), and two Chicago police officers ("Officers"). Carr charges these defendants with violating both his state and federal rights. The Board has filed a 12(b)(6) motion to dismiss all claims against it in their entirety. For the reasons set forth below, the motion is granted.
I. Background
On and prior to May 7, 1999, Carr, an African-American student, was enrolled at Clissold. Clissold is a public elementary school directed by McCarthy and operated under the authority of the Board. Carr alleges that on, prior to, and after May 7, 1999, certain classrooms at Clissold were segregated into predominately white and black rooms. He further alleges that McCarthy treated African-American parents and students "in a manner demeaning and disrespectful . . . and different from the deference shown to white students." ( Id. ¶ 5.)
Not surprisingly, given the allegations already cited, May 7, 1999 is a crucial date. Carr alleges that on that date McCarthy detained him in his office and caused Chicago police officers to take him into custody. From this experience, Carr alleges that he suffered a loss of self-esteem and emotional damage for which he required extensive counseling and private therapy, and that he was required to enroll in a private school. Carr initiated this lawsuit by filing a two-count complaint, the first against McCarthy and the Board, and the second against the Officers. Can invokes the First, Fourth, and Fourteenth Amendments to the United States Constitution (through 42 U.S.C. § 1983) and the laws of the State of Illinois. More specifically, Can claims denial of due process, wrongful deprivation of liberty, wrongful arrest, imprisonment, and subjection to ridicule.
II. Analysis
In ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court assumes the truth of the facts alleged in the complaint and draws all reasonable inferences in favor of the plaintiff Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001) The court will not dismiss the allegations in a complaint for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Strasburger v. Bd. of Educ., 143 F.3d 351, 359 (7th Cir. 1998). A plaintiff can plead conclusions so long as these conclusions provide the defendants with at least minimal notice of the claims. Jackson v. Marion County, 66 F.3d 151, 154 (7th Cir. 1995). "A plaintiff need not put all of the essential facts in the complaint. He may add them by affidavits or briefs in order to defeat a motion to dismiss if these facts are consistent with the allegations in the complaint." Hentosh v. Herman M. Finch Univ. of Health Sci./Chi. Med. Sch., 167 F.3d 1170, 1173 n. 3 (7th Cir. 1999) (quoting Hrubec v. Nat'l R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992)). Consistency in this context, it should be emphasized, demands more than logical possibility. "Because the complaint must provide the defendant with fair notice of the claim, a plaintiff cannot avoid dismissal by citing new facts and legal theories the relevance of which a defendant could not reasonably be expected to have discerned based on the complaint." Rogers v. Wexler, No. 01 C 1943, 2002 U.S. Dist. LEXIS 5457, at *5 (N.D. Ill. Mar. 28, 2002) (internal quotation marks and citation omitted).
Under § 1983, a municipality cannot be held liable solely on the basis of respondeat superior. Moneil v. New York Dep't of Soc. Serv's., 436 U.S. 658, 691 (1973). To allege that the Board has violated his rights under § 1983, Can must allege that "(1) the [Board] had an express policy that, when enforced, causes a constitutional deprivation; (2) the [Board] had a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage within the force of law; or (3) plaintiffs constitutional injury was caused by a person with final policymaking authority." McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir. 2000).
Although this is admittedly a close case, the court believes that the complaint states only vicarious liability theories against the Board. The closest Can comes to an alternative theory is his allegation that McCarthy's misconduct "constituted a long standing pattern of wrongful conduct on behalf of . . . the Chicago Board of Education." (Compl. ¶ 8.) A pattern of conduct on behalf of the Board is not the same as a policy, practice, custom, or usage of the Board. That McCarthy acted on behalf of the Board suggests only that he acted within the scope of his employment. But even if this allegation could be considered ambiguous in isolation, its meaning is clear from the rest of the complaint. In the only other allegations implicating the Board, Gaff alleges that McCarthy was an agent and employee of the Board and that the Board was responsible for supervising its employees and for its employees' acts. Nowhere does Carr suggest that the Board directed McCarthy or was even aware of McCarthy's misconduct. To be sure, Can does not contradict the allegations in the complaint when in his response brief he suggests that there may have been a "custom or policy on the part of' the Board and that the Board may have directed McCarthy's conduct. But the Board could not reasonably foresee these new allegations of fact based on the complaint. Notice pleading does not require much, but it does require notice. It is apparent from the complaint that Can was operating on the false premise that the Board could be liable under § 1983 on a respondeat superior theory and sought to hold the Board liable on that theory alone. If he now believes that he has other viable theories of recovery, he must provide notice of those theories in an amended complaint. Until then, his claims against the Board are dismissed without prejudice.
Carr does not argue that this court should retain jurisdiction over his state law claims in the event that it dismisses his federal claims. Accordingly, the state law claims against the Board are also dismissed without prejudice.
ENTER: