A.S. v. Bd. of Educ.

1

A.S., as parent and next of friend of F.S., a minor, Plaintiff, v. Board of Education for Des Plaines School District #62, Dr. Paul Hertel, and Ania Figueroa, Defendants.

No. 22 C 4745

United States District Court, N.D. Illinois, Eastern Division

January 16, 2024

MEMORANDUM OPINION AND ORDER

LaShonda A. Hunt, United States District Judge

Plaintiff A.S., as parent and next friend of her minor son, F.S., filed this lawsuit against the Board of Education for Des Plaines School District #62 (the “Board”), Dr. Paul Hertel (“Superintendent Hertel”), Superintendent of Des Plaines School District #62 (“District #62”), and Ania Figueroa (“Principal Figueroa”), Principal of Forest School in District #62 (collectively, “Defendants”). Plaintiff alleges that F.S. was repeatedly bullied and sexually assaulted by other students and Defendants failed to take appropriate actions to protect him. Plaintiff's Second Amended Complaint (“SAC”) [21] asserts claims for violation of Title IX (Count I), intentional infliction of emotional distress (“IIED”)^[1](Count II), and failure to protect (Count III). Defendants answered Count I and moved to dismiss Counts II and III under Fed.R.Civ.P 12(b)(6). For the following reasons, Defendants' partial motion to dismiss [25] is denied.

BACKGROUND

I. Procedural History

Plaintiff initiated this action in 2022, asserting federal claims under 42 U.S.C. § 1983 and Title IX in addition to various state law claims. (Dkt. 1). After Defendants filed a Rule 12(b)(6) motion to dismiss the complaint, Plaintiff was granted leave to file an amended complaint. (Dkt. 12). The first amended complaint (“FAC”) alleged violations of section 1983 and Title IX, along with willful and wanton IIED. (Dkt. 13). Again, Defendants moved to dismiss the FAC for failure to state a claim. (Dkt. 15). On March 31, 2023, Judge Gettleman^[2]denied their motion as to the Title IX claim but granted it as to the section 1983 and IIED claims. (Mem. Op. and Ord., Dkt. 20). In dismissing the section 1983 claim, Judge Gettleman found that neither the in loco parentis statute nor the state-created danger exception applied; thus, Defendants had no duty to protect F.S. from misconduct by other students. (Id. at 4-6). He further found Plaintiff's pleading of the IIED claim deficient, as Plaintiff did not even identify against whom the claim was brought. (Id. at 7). Plaintiff subsequently filed the SAC that is presently before the Court, with the same Title IX claim, an amended IIED claim, and an additional claim for failure to protect under Illinois law. (Dkt. 21).

II. Factual Allegations

The Court assumes familiarity with Judge Gettleman's prior ruling on the FAC which includes a detailed recitation of the relevant facts in this case. See Dkt. 20. Therefore, the Court will briefly summarize facts pertinent to this decision only.^[3] F.S. experienced multiple incidents of bullying and sexual assault by other students over several years and in different locations on school premises and the school bus. For example, the SAC alleges that:

• While in the second grade, F.S. was bullied and sexually assaulted at lunch and recess, by the school lockers, and in music class by a student named “Julian.” (SAC ¶¶ 17-18).

• On March 4, 2020, F.S. was stabbed with a pencil by another student. (SAC ¶ 19).

• On March 12, 2021, several students dragged F.S. into a corner of the playground where they kicked and punched him and pulled his penis. (SAC ¶ 20).

• While in the fifth grade, F.S. experienced verbal and physical attacks by other students in school and on the school bus, including a student grabbing his crotch and penis. (SAC ¶¶ 25-26).

The SAC further alleges that F.S.'s third-grade teacher Ms. Sampson^[4], his fourth-grade teacher Mr. Matt Peebles, and other District #62 employees, including Principal Figueroa, Superintendent Hertel, and Iroquois School Principal Ms. Kelly Krueger (“Principal Krueger”), were aware of these incidents. Additionally, F.S.'s parents reported several incidents of bullying and sexual assault, including the March 2020 and March 2021 incidents, directly to Superintendent Hertel and the Board, but no students were disciplined for their actions. Furthermore, Plaintiff alleges Defendants took no action to stop the attacks or to protect F.S. from further abuse, other than moving one student's classroom seat assignment away from F.S. Plaintiff asserts that Defendants were indifferent to reports of bullying and sexual assault, which resulted in physical and emotional harm to F.S.

LEGAL STANDARD

Rule 12(b)(6) permits a party to move for dismissal based on the opposing party's “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In determining whether a complaint states a claim, courts must accept all non-conclusory factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, the Court must construe the complaint in the light most favorable to the plaintiff and draw all reasonable inferences in the plaintiff's favor. Levy v. W. Coast Life Ins. Co., 44 F.4th 621, 626 (7th Cir. 2022). Applying these principals, a complaint will survive a motion to dismiss if it “states a plausible claim for relief.” Ashcroft, 556 U.S. at 679 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). To state a plausible claim for relief, a complaint must “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679. The movant has the ultimate burden to show that dismissal is warranted. Marcure v. Lynn, 992 F.3d 625, 631 (7th Cir. 2021).

DISCUSSION

Defendants contend that Count II (IIED) and Count III (failure to protect) of the SAC must be dismissed with prejudice because Plaintiff fails to allege the essential elements of the claims and Defendants are immune from liability under the Local Government and Governmental Employees Tort Immunity Act (745 ILCS 10) (“Tort Immunity Act”).^[5](Mem. in Supp. of Defs.' Mot. at 1, 10 Dkt. 26). Defendants also contend that Superintendent Hertel and Principal Figueroa are improper defendants. (Id. at 3). Having considered the arguments of the parties, the Court finds that Plaintiff has sufficiently alleged plausible claims for IIED and failure to protect against all Defendants, and at this early stage of the case, it would be premature to decide whether the Tort Immunity Act bars either claim. Furthermore, the individual defendants may be sued in an individual capacity, but not an official capacity.

I. Intentional Infliction of Emotional Distress (Count II)

“To state an actionable IIED claim under Illinois law, a plaintiff must allege that ‘(1) the defendant's conduct was extreme and outrageous; (2) the defendant intended to inflict severe emotional distress (or knew that there was at least a high probability that [his or her] conduct would inflict severe emotional distress); and (3) the defendant's conduct did in fact cause severe emotional distress.”' Pinkston v. Bd. of Educ. of City of Chi., No. 19C6477, 2023 WL 6392302, at *7 (N.D. Ill. Oct. 2, 2023) (quoting Richards v. U.S. Steel, 869 F.3d 557, 566 (7th Cir. 2017)). “To qualify, a defendant's conduct must be so extreme as to go beyond all possible bounds of decency and be regarded as intolerable in a civilized society.” Id. (internal quotation omitted). Defendants argue that Plaintiff fails to allege sufficient facts to demonstrate that their actions were extreme and outrageous. The Court disagrees.

Here, Plaintiff alleges that her minor son was bullied and sexually assaulted on numerous occasions from the time he was in second grade until fifth grade. (SAC ¶¶ 17-20, 22, 26). Specifically, F.S. was kicked, punched, dragged, stabbed with a pencil, verbally abused, and his genitals were repeatedly touched. (Id.) The abuse occurred at lunch, on the playground, in music class, by the lockers, and on the school bus. (Id.) F.S.'s parents and other school officials reported the ongoing abuse to Superintendent Hertel and the Board. (Id. ¶ 21-23, 27). Despite repeated complaints over a period of several years, Principal Figueroa, Superintendent Hertel, and the Board failed to take any action to stop the attacks or protect F.S. from further abuse, other than moving one student's classroom seat assignment away from F.S. (Id. ¶ 29). Taking all well-pleaded allegations as true, Plaintiff has plead facts sufficient to plausibly allege that Defendants' failure to act in the face of numerous complaints of misconduct over an extended period was extreme and outrageous. See Doe v. Sperlik, No. 05C1277, 2005 WL 3299818, at *6 (N.D. Ill. Nov. 30, 2005) (“Deliberate indifference to repeated complaints of sexual misconduct can form the basis for an emotional distress claim.”); Brookman ex rel. A.B. v. Reed-Custer Cmty. Unit, Sch. Dist. 255-U, No. 18C7836, 2019 WL 4735395, at *6 (N.D. Ill. Sept. 27, 2019) (finding plaintiff plausibly alleged IIED where “complaint could be read to imply that defendants, by failing to intervene, permitted other players to sexually assault A.B. in their presence.”).

Next, Defendants argue that the IIED claim is barred by Section 2-201 of the T ort Immunity Act. “Section 2-201 immunizes public employees from liability where the injury claimed is based on a discretionary policy decision.” Doe I v. Bd. of Educ. of City of Chi., 364 F.Supp.3d 849, 866 (N.D. Ill. 2019) (citing 745 ILCS 10/2-201). “Where section 2-201 is satisfied such that a public employee would not be liable, the local public entity that employs her is likewise immune from liability under section 2-109 of the [] Tort Immunity Act.” Murphy v. Vill. of Plainfield, No. 08C3293, 2009 WL 900766, at *6 (N.D. Ill. Mar. 31, 2009) (citing 745 ILCS 10/2-109).

Illinois courts apply a two-part...