Crumble v. Kettle Moraine Sch. Dist.

EBONY CRUMBLE, et al., Plaintiffs, v. KETTLE MORAINE SCHOOL DISTRICT, Defendant.

Case No. 20-CV-1585

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

April 30, 2021

DECISION AND ORDER

1. Facts and Procedural History

According to the complaint, SQ entered the sixth grade at Kettle Moraine Middle School as a transfer student in the Spring of 2017. (ECF No. 1, ¶ 26.) "From the time of her enrollment at [the Kettle Moraine School District], SQ has endured persistent, pervasive and increasingly severe acts of racial harassment and bullying, including cyberbullying involving the use of [Kettle Moraine School District] property or technology, at the hands of fellow students." (ECF No. 1, ¶ 28.) She points to seven incidents over roughly three years.

On October 16, 2017, SQ received an email "racially attacking" her. SQ notified her teacher, who in turn notified the Vice Principal. (ECF No. 1, ¶ 38.) The Vice Principal investigated and identified the student who sent the email. (ECF No. 1, ¶ 39.) The school declined to provide SQ or Crumble any additional information, explaining that it could not disclose punishments. (ECF No. 1, ¶ 39.)

On February 8, 2019, a student wrote a racial slur directed at SQ on a classroom whiteboard. (ECF No. 1, ¶ 42.) Crumble notified the school, and the Principal investigated. (ECF No. 1, ¶¶ 44-43.) As part of the investigation, the Principal spoke to SQ and said that the student probably wrote the slur on the whiteboard because he hears the slur in music. (ECF No. 1, ¶ 47.)

In March of 2019 a teacher turned off the lights in a classroom, prompting a student to say, "where did [SQ] go?" (ECF No. 1, ¶ 63.) The teacher did not respond to this "racial taunting." (ECF No. 1, ¶ 63.)

In the fall of 2019 SQ began ninth grade at Kettle Moraine High School. (ECF No. 1, ¶ 27.) On October 19, 2019, a student used a racial slur in a classroom and again in the cafeteria. (ECF No. 1, ¶ 65.) SQ and another student who heard the slur reported the incidents to the Vice Principal. (ECF No. 1, ¶ 67.) About a day later the Vice Principal informed SQ and the other reporting student that the incident could not be verified. (ECF No. 1, ¶ 69.)

On October 21, 2019, the sister of the student who allegedly used the slur in the classroom and cafeteria a few days earlier was video recorded "physically intimidating and threatening SQ and some of her 9th grade classmates over [her sister's] use of and'right to use' a racial slur." (ECF No. 1, ¶ 73.) The incident was reported to the Vice Principal, and the girl "was issued an undisclosed reprimand." (ECF No. 1, ¶ 74.)

On October 28, 2019, a student "told SQ to 'go back to the hood.'" (ECF No. 1, ¶ 76.) The student then posted on Snapchat a modified racial slur. (ECF No. 1, ¶ 76.) When Crumble reported this incident, the Principal "assured that she would get to the bottom of things and issue 'swift justice' to the offending student." (ECF No. 1, ¶ 78.)

On September 3, 2020, a student "created a direct Snapchat of himself pictured with a racial attack as a headline on" another student's phone, and then sent it to SQ. (ECF No. 1, ¶ 96.) SQ shared the Snapchat with her peers. The following day the incident was referred to law enforcement, and both the student who created the Snapchat and the student whose phone was used were charged with disorderly conduct. (ECF No. 1, ¶ 105.)

Ebony Crumble filed this action on October 16, 2020, asserting claims on her own behalf as well as on behalf of SQ, her minor daughter. Both Crumble and SQ purport to assert claims "on behalf of all others similarly situated." (ECF No. 1.) Yet the complaint does not otherwise purport to be a class action, and the complaint does not contain any allegations under Federal Rule of Civil Procedure 23. Thus, it is unclear what the plaintiffs intend when they purport to be proceeding "on behalf of all others similarly situated."

The plaintiffs allege claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 200d et seq. (ECF No. 1, ¶¶ 124-33), and the Fourteenth Amendment by way of 42 U.S.C. § 1983 (ECF No. 1, ¶¶ 134-36).

The complaint contains a hyperbolic "prologue," which the defendants have moved to strike. (ECF No. 10.) The plaintiffs did not respond to the motion to strike.

The defendants then filed a motion to dismiss. (ECF No. 11.) The plaintiffs responded (ECF No. 13), and the defendants replied (ECF No. 14).

The plaintiffs' response, however, was untimely, filed the day after it was due. See Civ. L.R. 7(b) (E.D. Wis.). The plaintiffs did not acknowledge that their response was late, much less move for an extension of time. That by itself would be reason enough to strike the response and grant the defendants' motion as unopposed. See Civ. L.R. 7(d) (E.D. Wis.).

However, because the court routinely gives litigants at least one opportunity to amend a complaint following dismissal, see Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 2015), such a dismissal would probably only result in forcing the plaintiffs to file an amended complaint, which in turn would likely lead to a repetition of the current motion and briefing. Thus, the court accepts the plaintiffs' untimely response. But it reiterates its expectation that all parties will fully and completely comply with the court's local rules and all applicable federal rules of procedure.

One aspect of the defendants' motion to dismiss was that Kettle Moraine High School and Kettle Moraine Middle School are mere buildings and not suable entities separate from the school district. (ECF No. 12 at 21.) When the plaintiffs did not respond to this aspect of the defendants' motion, the defendants argued in reply that those two defendants should be dismissed. (ECF No. 14 at 15.) Only after all briefing on the motion to dismiss was complete did the plaintiffs voluntarily dismiss Kettle Moraine High School and Kettle Moraine Middle School as defendants. (ECF No. 15.)

The court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. All parties have consented to have this court preside in this matter under 28 U.S.C. § 636(c). (ECF Nos. 7, 8.)

2. Plaintiffs' Motion to File an Amended Complaint

The same day they voluntarily dismissed the schools the plaintiffs moved to file an amended complaint. The only changes they identify are that the proposed amended complaint omits the prologue that is the subject of the defendants' motion to strike and adds as defendants the Kettle Moraine School Board and its members.

The defendant—now only Kettle Moraine School District—opposes the plaintiffs' motion to amend, arguing that amendment would be futile because the plaintiffs lack any claim against the proposed new defendants and the proposed amended complaint would otherwise be subject to dismissal for the reasons set forth in the motion to dismiss. (ECF No. 17.)

In reply, the plaintiffs argue that, because they initially "prayed for punitive damages against the policymakers who are negligent in not appropriately responding to the harassment issues within the KM School District schools," the individual school board members are proper defendants. (ECF No. 18 at 1-2.)

Although Federal Rule of Civil Procedure 15(a) "reflects a liberal attitude towards the amendment of pleadings, courts in their sound discretion may deny a proposed amendment if ... the pleading is futile." Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 848-49 (7th Cir. 2002) (citing Foman v. Davis, 371 U.S. 178, 181-82 (1962); Bethany Pharm. Co. v. QVC Inc., 241 F.3d 854, 861 (7th Cir. 2001)). There is no point in allowing a plaintiff to file an amended complaint if that complaint could not survive a motion to dismiss.

Aside from naming each school board member, stating that he or she lives in Waukesha County, and "was a duly elected official of the Kettle Moraine School Board" (ECF No. 16-1, ¶¶ 5-12), the proposed amended complaint is devoid of any allegation as to what each board member did or failed to do that would suggest a basis for liability. Nor is there any indication of what the school board (as an institution distinct from its members) is alleged to have done or failed to do.

It should go without saying that a plaintiff cannot recover damages, punitive or compensatory, from a person unless that person did something wrong. Thus, the fact that the plaintiffs want the school board and its members to pay punitive damages forthe alleged malfeasance of the Kettle Moraine School District is not a basis for making them defendants. Because the proposed amended complaint is completely devoid of any allegation suggesting a plausible basis for any claim against the defendants the plaintiffs seek to add, the motion to file an amended complaint will be denied.

Thus, the court turns to the original complaint and the motions to strike and dismiss.

3. Motion to Strike

The plaintiffs did not respond to the defendant's motion to strike the "Prologue" of the complaint. Therefore, the motion to strike (ECF No. 10) is granted as unopposed. See Civ. L.R. 7(d) (E.D. Wis.) Paragraphs 8 through 23 of the complaint will be stricken.

4. Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."" Iqbal, 556 U.S. at 678. A claim satisfies this pleading standard when its factual allegations "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56. The court accepts "all well-pleaded facts as true and constru[es] allinferences in favor of the plaintiffs." Gruber v. Creditors' Prot. Serv., 742 F.3d 271, 274 (7th Cir. 2014).

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