Moore v. Lauer

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

STEPHENE MOORE, on behalf of her

minor child, “PM,”

Plaintiff, Case No. 3:22-cv-50354

v. Honorable Iain D. Johnston

OFFICER BRADLEY LAUER, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Although public school students enjoy “less than the full constitutional liberty

protection afforded those persons not in school,” they “do not completely surrender

their constitutional rights at the schoolhouse gate.” Wallace by Wallace v. Batavia

Sch. Dist. 101, 68 F.3d 1010, 1013 (7th Cir. 1995). Stephene Moore brings this suit

on behalf of her minor son, PM. Dkt. 29, at ¶¶ 9–10. PM was a fourteen-year-old

freshman at Auburn High School in Rockford, Illinois. Id. at ¶¶ 13, 35, 136. It is

alleged that, following a classroom dispute, school officials violently restrained PM

by blocking his movements, grabbing PM, tackling PM, and ultimately throwing PM

to the floor, fracturing his skull and causing lifelong physical and mental

repercussions. See generally, Dkt. 29.

Before the Court is Ms. Moore’s twelve-count first amended complaint. Id. She

is suing a host of defendants: Rockford, the Board of Education (the “Board”), School

Liaison Officer (“SLO”) Bradley Lauer, Assistant Principal Scott Dimke, Assistant

Principal and/or Dean Amber Lee-Black, Hall Monitor/Security Guard Jessica

Badford, President of the Board Jude Makulec, Superintendent Ehren Jarrett, and

General Counsel of the School District Lori Hoadley. Id. at ¶¶ 12–23.

The Board, Mr. Dimke, Ms. Lee-Black, Ms. Badford, Dr. Jarrett, Ms. Makulec,

and Ms. Hoadley (the “School District Defendants”) moved to dismiss nine of the

twelve counts in the first amended complaint. Dkt. 36. Based on the allegations,

which the Court must currently accept as true, their motion is granted in part and

denied in part.

ALLEGATIONS

During Second Period, PM’s teacher asked him to remove his “hoodie.” Id. at ¶

36. PM refused, and the teacher “ordered him to leave class.” Id. PM left class, and

the school called his grandmother who promptly picked him up from school. Id.

The next day, PM again went to Second Period. Id. at ¶¶ 37–38. The same

teacher began “nitpicking at PM” and “harassing him about where in the classroom

he could sit.” Id. PM again left the classroom and entered the hallway. Id. at ¶¶ 38–

39.

In the hallway, PM walked past his Second Period classroom where his teacher

told PM that he was supposed to be in class. Id. at ¶ 39. PM ignored the instruction,

and continued walking down the hall. Id. The Second Period teacher then “summoned

a school official to deal with PM.” Id.

Enter Mr. Dimke. Id. at ¶ 40. Mr. Dimke had, on prior occasions, “pushed,”

“tackled,” and “grabbed” other students by their backpacks or “hoodies.” Id. at ¶ 131.

Allegedly true to form, Mr. Dimke “spotted” PM, “approached” PM, who is African

American, and “started a prolonged and aggressive interaction with him.” Id. at ¶¶

11, 40. Mr. Dimke, “a large man relative to PM,” blocked PM’s path forward, and

“physically grabbed hold of PM’s backpack while it was on his back.” Id. at ¶ 41. “PM

did not actively resist.” Id. at ¶ 42.

Sensing something awry in her domain, Ms. Badford “walked up” to PM and

Mr. Dimke and “listened to their conversation, and began talking to PM as well.” Id.

at ¶ 43.

Presumably free from Mr. Dimke’s grip, PM continued walking, and Mr. Dimke

and Ms. Badford “walked calmly behind PM, following him.” Id. at ¶ 44. But as PM

approached the main school office, Mr. Dimke again “caught up to PM” and

“physically blocked his path forward.” Id. at ¶ 47.

Ms. Lee-Black then arrived on the scene in the main school office hallway. Id.

at ¶ 48. There, she “observed and overheard” Mr. Dimke’s “interactions and

communications with PM.” Id.

PM turned around, and “walked in the opposite direction” from Mr. Dimke,

who had been blocking his path forward. Id. at ¶¶ 47, 49. Mr. Dimke, once again,

“physically grabbed hold of PM’s backpack” to “stop and restrain his forward motion.”

Id. ¶ 50. PM, again, did not resist the restraint. Id. at ¶ 51. Mr. Dimke let PM loose,

and PM continued walking. Id. Mr. Dimke then “grabbed PM’s arm with one hand

and constantly held onto PM as he walked.” Id. at ¶ 52.

They passed Ms. Lee-Black in tandem, and Ms. Lee-Black “did not say or do

anything to” Mr. Dimke to “intervene or suggest[] another course of action by the

school.” Id. at ¶ 54.

Things then turned more physical. See id. at ¶ 55. Mr. Dimke “grabbed PM,

wrapped both of his arms around PM’s body from behind, and physically carried or

dragged PM into the main school office.” Id. When they entered the office, Mr. Dimke

blocked PM’s retreat and tried to talk to PM. Id. at ¶ 57. The main school office was

a new environment for PM. Id. at ¶ 56. PM had never been in there before. Id. PM

viewed the main school office as a “small, secluded room” that was an “isolated space.”

Id. PM grew scared. Id. And when PM tried to leave, Mr. Dimke “moved to block him

and physically pushed him back into the office.” Id. at ¶ 58.

Mr. Dimke or Ms. Lee-Black called for one of Auburn’s two SLOs to help. Id. at

¶ 59. SLO Lauer answered the call and headed their way. Id. at ¶ 60. All the while,

Mr. Dimke was pushing PM “backwards and deeper” into the main school office. Id.

at ¶ 61. Mr. Dimke then “attempted to tackle or physically jump onto PM’s body with

the full weight of his body while at the same time pushing him through a closed door

inside the office.” Id. at ¶ 63. The attempt resulted in both Mr. Dimke and PM on the

floor, with Mr. Dimke on top of PM, and PM “restrained.” Id. at ¶ 64. Though close

enough to observe and hear Mr. Dimke and PM’s interactions, neither Ms. Lee-Black

nor Ms. Badford “said or did anything at the time” to deescalate the situation. Id. at

¶ 66.

SLO Lauer then entered the cacophony. Id. at ¶ 67. After entering the office,

he “immediately and physically took over the situation” without speaking to anyone.

Id. SLO Lauer “did not know what was happening and whether PM posed any

danger” to Mr. Dimke. Id. at ¶ 68.

Nevertheless, SLO Lauer jumped into action and grabbed both of PM’s arms

“from behind his body” to “pull him out into the hallway.” Id. at ¶ 72. PM did not

“fight or resist” SLO Lauer, who was, at least, one-foot and seventy pounds larger.

Id. at ¶¶ 73, 74.

Then, without any warning whatsoever, SLO Lauer, who was still behind PM,

“locked his arms into PM’s arms at the elbows, lifted PM up off of the floor and over

his head, and slammed PM down to the hard, tile floor, head-first.” Id. at ¶ 75.

Unable to break the fall with his arms, PM’s “head and body hit the floor and

bore the brunt of the impact.” Id. at ¶¶ 76–77. PM’s skull fractured, and he was

knocked unconscious on impact. Id. at ¶¶ 76, 78. PM laid limp on the floor–

motionless–for several minutes. Id. at ¶ 78. While PM was unconscious, SLO Lauer

handcuffed PM and searched PM’s pockets, revealing nothing newsworthy. Id. at ¶¶

80–81.

Paramedics arrived on the scene, and the paramedics and SLO Lauer put PM

in a wheelchair. Id. at ¶ 82. SLO Lauer allegedly lied to the paramedics and told them

that PM had fallen. Id. at ¶ 87. They wheeled him to a stretcher near the main

entrance of the office where they released PM to his grandmother. Id. at ¶¶ 82, 84.

SLO Lauer and school officials told Ms. Moore that SLO Lauer and PM had been

“scuffling” and that PM “slipped,” “fell,” and “hit his head.” Id. at ¶ 86 (internal

quotations omitted). She immediately took PM to the emergency room. Id. at ¶ 84.

Within one month of the incident, SLO Lauer either resigned his position at

Auburn High School or was involuntarily transferred. Id. at ¶ 95. Nevertheless, Ms.

Moore alleges that the Rockford Police Department and Rockford neither “conducted

an immediate investigation of the incident,” nor “opened an internal affairs

investigation after the incident.” Id. at ¶ 96. Ms. Moore believes that the Rockford

Police Department has yet to discipline Mr. Lauer, and that the Rockford Police

Department and Rockford have declined to publicly comment on the matter,

acknowledge the incident, or hold anyone accountable for SLO Lauer’s conduct. Id. at

¶ 98.

After the incident unfolded, “school officials” told PM’s family that “no further

disciplinary action was needed or would be taken with respect to PM.” Id. at ¶ 112.

They also stated that there would be no juvenile criminal charges pressed against

PM. Id. at ¶¶ 113, 115. Despite their assurances, and after PM’s family retained

counsel and asked the Board and Rockford Police Department to retain evidence,

PM’s family received a letter from a juvenile probation officer informing them that

PM had been “charged with an alleged offense.” Id. at ¶ 116–17 (internal quotations

omitted). The letter summoned PM’s family to a meeting and threatened PM with

prosecution if they did not attend. Id. According to Ms. Moore, sometime after

January 1, 2022, the charge was terminated in PM’s favor. Id. at ¶ 118.

Ms. Moore alleges that the Board and Rockford Police Department pursued the

criminal charge to “punish PM and his family for taking legal action and to threaten

PM with a criminal record in order to intimidate and chill them from exercising PM’s

civil rights by filing a lawsuit.” Id. at ¶ 119. To retaliate against PM and his family,

Ms. Makulec, Dr. Jarrett, and Ms. Lori Hoadley also repeatedly refused PM’s request

to transfer high schools within the School District against the advice of outside

counsel. Id. at ¶¶ 120–21.

SLO Lauer’s actions allegedly wreaked havoc on PM’s physical and mental

health. See id. at ¶¶ 99–111. Beyond breaking his skull, PM suffered a traumatic-

brain-injury (“TBI”). Id. at ¶ 101. His jaw “caused him so much pain that he had to

eat soft foods for several weeks, and for weeks his ribs hurt whenever he breathed”

or stood up. Id. He was unable to walk when he returned home from the hospital, his

“hands were folded inward” and “he appeared pigeon-toed.” Id. at ¶ 102. For weeks

after accruing the injuries, PM suffered “severe headaches, rarely slept, and was

frequently throwing up.” Id. at ¶ 103. PM’s TBI caused permanent brain damage,

exacerbating PM’s ADHD, limiting PM’s ability to speak, changing PM’s personality,

decreasing PM’s social skills, and reducing PM’s ability to form memories and

exercise fine motor control. Id. at ¶¶ 103–05. He has grown “socially withdrawn” and

fears school and the “outside world.” Id. at ¶ 106. He suffers from involuntary

flashbacks and seems to be “in his own mental world.” Id. at ¶¶ 108–09. PM’s

prognosis is poor, and he “requires high quality, long-term, costly, phycological care

and counseling” to cope with his injuries. Id. at ¶¶ 104, 111.

PROCEDURAL POSTURE

Ms. Moore’s first amended complaint includes twelve counts. See Dkt. 29.

Count I is a 42 U.S.C. 1983 unconstitutional seizure claim against SLO Lauer. Id. at

¶¶ 142–46. Count II is a § 1983 excessive force claim against SLO Lauer. Id. at ¶¶

147–51. Count III is a § 1983 “substantive constitutional rights/excessive

force/excessive corporeal punishment” claim against Mr. Dimke. Id. at ¶¶ 152–157.

Count IV is a § 1983 “substantive constitutional rights – conduct that shocks the

conscience” claim brought against Mr. Dimke and SLO Lauer. Id. at ¶¶ 158–161.

Count V is a § 1983 failure to intervene claim against Mr. Dimke, Ms. Lee-Black, and

Ms. Badford. Id. at ¶¶ 162–67. Count VI is a § 1983 Monell claim against Rockford

and the Board. Id. at ¶¶ 168–96. Count VII is § 1983 Equal Protections Clause claim

against the Board, Ms. Makulec, Dr. Jarrett, and Ms. Hoadley. Id. at ¶¶ 197–210.

Count VIII is a § 1983 retaliatory prosecution claim against SLO Lauer, Rockford,

and the Board. Id. at ¶¶ 211–18. Count IX is a malicious prosecution claim under

Illinois state law against SLO Lauer, Rockford, and the Board. Id. at ¶¶ 219–224.

Count X is a § 1983 First Amendment retaliation claim against the Board, Ms.

Makulec, Dr. Jarrett, and Ms. Hoadley. Id. at ¶¶ 225–232. Count XI is a respondeat

superior claim against Rockford and the Board, and Count XII is a claim for

indemnification against Rockford and the Board. Id. at ¶¶ 233–41.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 8 requires only that a plaintiff’s complaint

contain a short and plain statement establishing the basis for the claim and the

Court’s jurisdiction, as well as prayer for the relief sought. Fed. R. Civ. P. 8(a).

According to the Supreme Court, this means that the complaint’s factual assertions,

rather than any legal conclusions, must raise the plausible inference that the

defendant is liable for the misconduct alleged. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). Reasonable inferences are drawn in favor of the plaintiff. St. John v.

Cach, LLC, 822 F.3d 388, 389 (7th Cir. 2016). The defendant, as the moving party,

bears the burden of establishing that the complaint’s allegations, taken as true, are

insufficient. Marcure v. Lynn, 992 F.3d 625, 631 (7th Cir. 2021).

ANALYSIS

Before the Court turns to the claims themselves, it must untangle whether the

individual defendants are being sued in their personal or official capacities. Of course,

such a distinction has significant ramifications, a few of which are discussed below.

First, in the § 1983 context, “[m]ore is required in an official-capacity action.”

Kentucky v. Graham, 473 U.S. 159, 166 (1985). Because a lawsuit against an

individual in his official capacity is a suit against the official’s office, the office itself

must be the “moving force” behind the constitutional deprivation. Id. (cleaned up). As

discussed further below, this necessarily requires the plaintiff to satisfy the more

demanding “policy or custom” standards that Monell v. New York City Department of

Social Services, 436 U.S. 658 (1978), and its progeny require. An action against an

individual in his personal capacity is much simpler: “it is enough to show that the

official, acting under color of state law, caused the deprivation of a federal right.”

Graham, 473 U.S. at 166. Monell is “always inapplicable” to personal-capacity suits.

Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 382 (7th Cir. 1988).

Second, a § 1983 lawsuit against an individual defendant in his official capacity

“must look to the government entity itself” to collect an award of damages. Graham,

473 U.S. at 166. Punitive damages are unavailable in such actions. Id. at 167 n. 13

(citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1985)). A § 1983 lawsuit

against an individual in his personal capacity may “hold the official personally liable

by collecting damages from the official’s personal assets.” Smith v. Doherty, 767 F.

Supp. 925, 927 (N.D. Ill. 1991) (citing Henry v. Farmer City State Bank, 808 F.2d

1228, 1237 (7th Cir.1986)). A plaintiff can collect punitive damages in such suits.

Graham, 473 U.S. at 167 n. 13.

Third, with respect to defenses to liability, the “only immunities that can be

claimed in an official-capacity action are forms of sovereign immunity” that the entity

may possess, “such as the Eleventh Amendment.” Graham, 473 U.S. at 166–67

(internal citations omitted). An individual defendant sued in his personal capacity,

however, may be able to assert absolute or qualified immunity. Id.

The complaint specifies that Ms. Makulec, Dr. Jarrett, and Ms. Hoadley are

sued in their official capacities. See Dkt. 29. And while Ms. Moore chalks this up to a

scriveners’ error and projects her desire to amend this designation, she may not do so

in a response to a motion to dismiss. Dkt. 49, at 26–28; Thomason v. Nachtrieb, 888

F.2d 1202, 1205 (7th Cir. 1989) (“[I]t is a basic principle that the complaint may not

be amended by the briefs in opposition to a motion to dismiss. . . .”).

The complaint does not specify whether SLO Lauer, Mr. Dimke, Ms. Lee-Black,

and Ms. Badford are being sued in their official or personal capacities. But the fact

that Ms. Moore seeks punitive damages is a “sure tipoff that the suit must be an

individual capacity and not an official capacity action.” Viero v. Bufano, 901 F. Supp.

1387, 1395 n. 10 (N.D. Ill. 1995). Thus, the claims against SLO Lauer, Mr. Dimke,

Ms. Lee-Black, and Ms. Badford will be considered as having been brought against

them in their personal capacities.

With those distinctions in mind, the Court takes in turn each of the School

District Defendants’ arguments for dismissal.

I. Count III may proceed on an excessive force/corporeal punishment theory.

The School District Defendants move to dismiss Count III to the extent it is

based on a Fourteenth Amendment due process violation, as well as to the extent it

is based on the Fourth Amendment excessive force/corporeal punishment theory.

Dkt. 36-1, at 9–12. In response, Ms. Moore only substantively defends Count III as it

relates to the Fourth Amendment. Dkt. 49, at 5–7. Ms. Moore also concedes that

Count III “is not predicated on a Fourteenth Amendment due process violation.” Id.

at 7. Therefore, the due process theory of liability is dismissed with prejudice. See

Boogaard v. Nat’l Hockey League, 891 F.3d 289, 295 (7th Cir. 2018).

The Fourth Amendment, as applied to the states by the Fourteenth

Amendment, protects the “right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend.

IV. The Fourth Amendment applies to searches and seizures conducted by public

school officials. New Jersey v. T.L.O., 496 U.S. 325, 333 (1985).

To state a claim for an unreasonable seizure, a plaintiff must allege both a

seizure, and that the seizure was unreasonable. Brown v. Chi., 594 F. Supp. 3d 1021,

1031 (N.D. Ill. 2022). “[A] teacher or administrator who seizes a student does so in

violation of the Fourth Amendment only when the restriction of liberty is

unreasonable under the circumstances then existing and apparent.” Wallace by

Wallace, 68 F.3d at 1014. Reasonableness is a “fact intensive argument” that is

generally “inappropriate on a motion to dismiss.” Grafton v. Fobelk, No. 18-CV-6099,

2020 U.S. Dist. LEXIS 237431, at *10–11 (N.D. Ill Dec. 17, 2020).

Ms. Moore alleges that Mr. Dimke, “a large man relative to PM,” blocked PM’s

path and grabbed him by his backpack on multiple occasions. Dkt. 29, at ¶¶ 41, 50,

57. PM did not resist. Id. at ¶¶ 42, 51. Mr. Dimke progressed his restraint, wrapping

both arms around PM’s body and physically bringing him into the main school office.

Id. at ¶ 55. There, he continued to block PM’s path to retreat and repeatedly pushed

PM further and further into the office. Id. at ¶¶ 56, 57, 58. Mr. Dimke eventually

“attempted to tackle or physically jump onto PM’s body with the full weight of his

body,” resulting in Mr. Dimke ending up on top of PM with PM restrained. Id. at ¶

64. Such allegations are sufficient to state a claim under the Fourth Amendment.

Brown, 594 F. Supp. 3d at 1033–34.

The School District Defendants press, alternatively, that Mr. Dimke is entitled

to qualified immunity. A complaint is “generally not dismissed under Rule 12(b)(6)

on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.

2001). Indeed, “an immunity defense usually depends on the facts of the case.” Id. At

the pleading stage, “the plaintiff is not required initially to plead factual allegations

that anticipate and overcome a defense of qualified immunity.” Jacobs v. Chi., 215

F.3d 758, 765 n. 3 (7th Cir. 2000). So, “Rule 12(b)(6) is a mismatch for immunity and

almost always a bad ground for dismissal.” Alvarado, 267 F.3d at 652. But sometimes

courts are required to grant qualified immunity on Rule 12(b)(6) motions to dismiss.

Doe v. Vill. of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015).

In any event, qualified immunity “shields officials from civil liability so long as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Green v. Newport, 868 F.3d 629, 632

(7th Cir. 2017) (cleaned up). To overcome qualified immunity, the plaintiff must “first

allege the deprivation of an actual constitutional right, and second, show that the

right was clearly established at the time of the alleged violation.” Alvarado, 267 F.3d

at 652. Because the Court has already addressed the first prong, the Court turns to

the second.

A right is “clearly established” when the “contours of the right” are “sufficiently

clear” such that a “reasonable official would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S 635, 640 (1987). Prior case law need not

be identical to be “sufficiently clear.” Id. Rather, the plaintiff must show that, “in light

of pre-existing law,” a reasonable defendant would have known his actions were

unlawful. Id. “Supreme Court and Seventh Circuit precedent at the time of the

incident . . . clearly established that public school students enjoy constitution rights

against unreasonable searches and seizures by school personnel.” Medina v.

Izquierdo, 594 F. Supp. 3d 1045, 1055–56 (N.D. Ill. 2022). It is also well established

that school administrators cannot use excessive force against students. See Spraggins

v. Brown, No. 16 C 06629, 2019 U.S. Dist. LEXIS 168214, at *15 (N.D. Ill. Sept. 30,

2019) (citing Doe v. Heck, 327 F.3d 492, 523 (7th Cir. 2003)). At this time, Mr. Dimke

is not entitled to qualified immunity, and Count III may proceed under the Fourth

Amendment theories of liability.

II. Count IV is dismissed without prejudice.

Ms. Moore agrees with the School District Defendants to dismiss Count IV, but

asks that the dismissal be without prejudice. See Dkt. 49, at 10 n. 4. The Court

dismisses Count IV without prejudice.

III. The failure to intervene claim (Count V) is dismissed without prejudice.

Ms. Moore alleges two different failures to intervene. First, she alleges that

Mr. Dimke failed to intervene and prevent SLO Lauer from allegedly violating PM’s

constitutional rights. Dkt. 29, at ¶ 163. Second, Ms. Moore alleges that Ms. Lee-Black

and Ms. Badford failed to intervene and prevent both Mr. Dimke and SLO Lauer from

violating PM’s constitutional rights. Id. at ¶¶ 164–65.

“Omissions as well as actions may violate civil rights.” Yang v. Hardin, 37 F.3d

282, 285 (7th Cir. 1994). An official may be liable for failing to intervene in “an

imminent or ongoing constitutional violation.” Sandra T.E. v. Sperlik, 639 F. Supp.

2d 912, 920 (N.D. Ill. 2009). The official must know of the imminent or ongoing

violation. Id. Allegations that the official “should have known” are insufficient to state

a claim for failure to intervene. Id.; Medina, 594 F. Supp. 3d at 1060–61. There must

also be “a realistic opportunity to intervene to prevent the harm from occurring.”

Abdullahi v. Madison, 423 F.3d 763, 774 (7th Cir. 2005) (internal quotation marks

omitted). A “realist opportunity” may exist when there is time to call for backup, help,

or, “at least caution[] the excessive force defendant to stop.” Id. (cleaned up).

The Court starts with the common allegation between Mr. Dimke, Ms. Lee-

Black, and Ms. Badford: that they failed to prevent or stop SLO Lauer from depriving

PM of his constitutional rights. Dkt. 29, at ¶¶ 163–65. Of course, this claim requires

the Court to first evaluate whether Ms. Moore sufficiently alleges that SLO Lauer

violated PM’s constitutional rights. See Sandra T.E., 639 F. Supp. 2d at 920.

Despite PM not resisting, SLO Lauer, without warning, lifted PM up from

behind and “slammed” him into the floor, headfirst, causing serious, life-altering

injuries. Dkt. 29, at ¶¶ 68, 73, 75, 102–10. He did so without first requesting

information from Mr. Dimke and without observing Mr. Dimke to be in “any physical

danger whatsoever.” Id. at ¶¶ 68–70. Taking the allegations as true, Ms. Moore has

sufficiently alleged that SLO Lauer violated PM’s constitutional rights under the

Fourth Amendment. See Brown, 594 F. Supp. 3d at 1033–34.

So, now the question becomes whether Mr. Dimke, Ms. Lee-Black, and Ms.

Badford knew of the imminent or ongoing violation of PM’s constitutional rights, and,

despite having a reasonable opportunity to do so, failed to intervene. Sandra T.E.,

639 F. Supp. 2d at 920.

Ms. Moore, on one hand, alleges that Mr. Dimke, Ms. Lee-Black, and Ms.

Badford all had reasonable opportunities and the ability to prevent or stop SLO

Lauer’s violation of PM’s constitutional rights. Dkt. 29, at ¶¶ 163–65. On the other

hand, Ms. Moore alleges that SLO Lauer “immediately and physically took over the

situation,” and lifted and slammed PM to the floor “without first giving PM any verbal

instruction or warning whatsoever.” Id. at ¶¶ 67, 75. A court need not ignore

allegations in the complaint that undermine the plaintiff’s claim. Slaney v. Int’l

Amateur Athletic Fed., 244 F.3d 580, 597 (7th Cir. 2001). Ms. Moore identifies no

opportunity by which Mr. Dimke, Ms. Lee-Black, and Ms. Badford could have learned

of1 and intervened against the forthcoming, out-of-the-blue actions of SLO Lauer. See

Dkt. 29. Thus, the failure to intervene claim cannot go forward as it relates to SLO

Lauer’s actions.

Next, the Court addresses Ms. Lee-Black and Ms. Badford’s alleged failure to

prevent or stop Mr. Dimke from depriving PM of his constitutional rights. The Court

has already stated that Mr. Dimke allegedly violated PM’s constitutional rights.

What’s more, Ms. Lee-Black and Ms. Badford were “close by, observing and

overhearing” Mr. Dimke’s “interactions and communications with PM,” including

when Mr. Dimke began applying an escalatory series of physical restraints against

PM. Id. at ¶¶ 43–66. They were also present when Mr. Dimke attempted to tackle or

jump on PM, pushing PM into an office and ending up on top of PM, with PM

1 Ms. Moore’s argument that the Mr. Dimke, Ms. Lee-Black, and Ms. Badford should have

known that Mr. Lauer was going to do to PM is unavailing. See Medina, 594 F. Supp. 3d at

1060–61.

restrained. Id. at ¶¶ 61–66. As alleged, Ms. Lee-Black and Ms. Badford had seen the

series of escalating physical interactions, and, despite having a reasonable

opportunity to stop or prevent Mr. Dimke from allegedly violating PM’s constitutional

rights, failed to do so. Id. Thus, Ms. Moore has stated a claim for failure to intervene

against Ms. Lee-Black and Ms. Badford as it relates to Mr. Dimke’s conduct. Sandra

T.E., 639 F. Supp. 2d at 920.

With respect to the School District Defendants’ argument that Ms. Lee-Black

and Ms. Badford are entitled to qualified immunity, it is the plaintiff’s “burden of

showing that the constitutional right allegedly violated was clearly established”

before the alleged wrongdoing. Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993);

Dkt. 36-1, at 12–13. The plaintiff must “offer either a closely analogous case or

evidence that the defendants’ conduct is so patently violative of the constitutional

right that reasonable officials would know without guidance from the courts.” Casteel,

3 F.3d at 1053. In this case, Ms. Moore has not identified a “closely analogous case”

describing the duty to intervene to prevent a constitutional violation. Ms. Moore also

does not advance the argument that the conduct was so patently violative that

guidance from the courts was not required.

Accordingly, Count V is dismissed without prejudice.

IV. The § 1983 Monell claim (Count VI) may proceed as alleged.

Ms. Moore brings a § 1983 Monell claim against Rockford and the “District/

Board of Education.” Dkt. 29, at ¶¶ 168–196. She alleges that “specific, long-standing,

interrelated failures of official policy and training, lack of official policy and training,

and de facto policies, widespread practices, and/or customs” were the moving force

behind SLO Lauer’s use of excessive force against PM, and were the “direct causal

link” between Rockford’s and the Board’s “deprivation of PM’s rights.” Id. at ¶ 169.

A § 1983 Monell claim, as opposed to a § 1983 claim against an individual,

“obviously entails elements” that are “not directly involved” in actions against an

individual. Medina v. Chi., 100 F. Supp. 2d 893, 894 (N.D. Ill. 2000). A Monell claim

“looks more broadly to the customs, policies, or practices that are alleged to contribute

to the individual misconduct.” Cadiz v. Kruger, No. 06 C 5463, 2007 U.S. Dist. LEXIS

88458, at *9 (N.D. Ill. Nov. 29, 2007). The “key” in “applying Monell” and avoiding

the improper imposition of respondeat superior liability is “distinguish[ing] between

the isolated wrongdoing of one or a few rogue employees and other, more widespread

practices.” Howell v. Wexford Health Sources., Inc., 987 F.3d 647, 654 (7th Cir. 2021).

The Court addresses Ms. Moore’s theories of liability in turn.

A. The Hiring of Unqualified Officers

Rockford and the Board can be held liable for decisions about hiring if Ms.

Moore adequately alleges that they were deliberately indifferent to the “known or

obvious consequence[s]” of such hiring decisions. Bd. of Cnty Comm’rs of Bryan Cnty.

v. Brown, 520 U.S. 397, 410–411 (1997). Deliberate indifference exists “where

adequate scrutiny of the applicant's background would lead a reasonable policymaker

to conclude that the plainly obvious consequence of the decision to hire the applicant

would be the deprivation of a third party's federally protected right.” Id. at 398.

What’s more, to show deliberate indifference, there must be a “strong” connection

“between the background of the particular [defendant] and the specific constitutional

violation alleged.” Id. at 412.

According to Ms. Moore, SLO Lauer has a “history of using excessive force

against African American citizens, including minors and children.” Dkt. 29, at ¶ 172.

Before joining the School District, he had been the “subject of multiple complaints of

excessive force and other misconduct.” Id. The Rockford Police and the School District

“were aware of all of these facts and other facts about [SLO] Lauer and/or had them

available to them when selecting him to be an SLO at Auburn High School but failed

to properly review or consider them.” Id.

In a similar vein, Ms. Moore alleges that Rockford and the Board do not require

“SLO training as a job qualification for SLO candidates.” Id. at ¶ 169. Rockford and

the School District “selected, approved, and assigned [officers] to work with students”

who were unprepared for their roles as SLO officers and “did not understand their

roles and responsibilities vis-à-vis students, including using alternatives to arresting

students and using physical force on them.” Id. at ¶ 176. Training available at the

time emphasized the “overarching point” that officers serving in schools should

“moderate their usual, street-based understanding and calculus on whether and

when to use force and to actively deploy de-escalate [sic] techniques and trauma-

informed policing strategies with students.” Id. at ¶ 180. As a result, the Rockford

Police Department the School District “hired officers, including [SLO] Lauer and

others, who were not trained, experienced or qualified to work with children and

adolescents.” Id. at ¶ 181.

Both inadequacies in the screening and hiring process allegedly caused the

deprivation of PM’s constitutional rights. Id. at ¶¶ 175, 181.

Ms. Moore has alleged sufficient facts to allow these theories of liability to

proceed. Indeed, she alleges that Rockford and the School District knew SLO Lauer

had a checkered history with the application of excessive force, and therefore, was

“highly likely to inflict the particular injury” suffered by PM. Brown, 520 U.S. at 412;

Dkt. 29, at ¶¶ 172–73. Further, they hired SLO Lauer without requiring school-

specific use of force training. See Dkt. 29, at ¶ 180. SLO Lauer then went on to

allegedly commit another act of excessive force against a student. See Dkt. 29, at ¶¶

67–75. The “strong” connection between Mr. Lauer’s background, the failure to

require adequate training as a prerequisite to hiring, and the “specific violation

alleged” are clear. Brown, 520 U.S. at 412. Thus, these theories of liability may

proceed.

B. The Failure to Provide Adequate Training

Ms. Moore also alleges that Rockford and the Board fail to provide “advance or

timely SLO training to officers,” including training in “de-escalation and trauma-

informed policing with youth,” before they were assigned to schools in the School

District. Id. at ¶ 169. According to Ms. Moore, SLOs received training only after they

had been on the job for more than six months. Id. at ¶ 182.

“[A] municipality's failure to train its employees in a relevant respect must

amount to deliberate indifference to the rights of persons with whom the untrained

employees come into contact. Only then can such a shortcoming be properly thought

of as a city policy or custom that is actionable under § 1983.” Connick v. Thompson,

563 U.S. 51, 61 (2011) (citing Canton v. Harris, 489 U.S. 378, 388 (1989)) (cleaned

up). “Deliberate indifference” requires “proof that a municipal actor disregarded a

known or obvious consequence of his action.” Id. (internal quotations and citation

omitted). Only when the municipality is on “actual or constructive notice that a

particular omission in the training program causes city employees to violate citizen’s

constitution rights” can the municipality be deemed deliberately indifferent if the

municipality chooses to “retain” the defective program. Id.

“A pattern of similar constitutional violations by untrained employees is

‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to

train.” Connick, 563 U.S. at 62 (quoting Brown, 520 U.S. at 409).

According to Ms. Moore, the gaps in training “created an environment” in

which Rockford police officers “treated student-teacher conflicts and student

behavioral issues as violent, criminal situations, thereby causing officers, including

[SLO] Lauer here, to respond inappropriately and violate students’ constitutional

rights.” Dkt. 29, at ¶ 185. Rockford and the School District allegedly knew that this

inadequate training regime would result in the violation of additional students’

constitutional rights, yet, they did not provide adequate training. Dkt. 29, at ¶ 186.

If Rockford and the School District “failed to change” the training–or lack thereof–

that they provided, despite knowing “constitutional violations were occurring and

would likely recur,” Rockford and the School District can be said to be deliberately

indifferent to those violations. See Hall v. Chi., 989 F. Supp. 2d 699, 709 (N.D. Ill.

2013). Accordingly, this theory of liability can proceed.

V. Count VII is dismissed without prejudice.

Ms. Moore agrees with the School District Defendants to dismiss Count VII,

but asks that the dismissal be without prejudice. See Dkt. 49, at 19 n. 14. The Court

dismisses Count VII without prejudice.

VI. The retaliatory prosecution claim (Count VIII) can proceed against only

SLO Lauer, and the First Amendment retaliation claim (Count X) is

dismissed without prejudice.

Plaintiff brings two claims arising from very similar sets of facts. She brings a

retaliatory prosecution claim against SLO Lauer, Rockford, and the Board. Dkt. 29,

at ¶¶ 211–18. Ms. Moore also brings a First Amendment retaliation claim against the

Board, and Ms. Makulec, Dr. Jarrett, and Ms. Hoadley in their official capacities. Id.

at ¶¶ 225–232.

Ms. Moore has failed to allege facts which bring these claims within the realm

of Monell. “Failure to allege an official policy or practice of a municipality or local

government unit, including a school board, results in dismissal.” S.J. v. Perspectives

Charter School, 685 F. Supp. 2d 847, 856 (N.D. Ill. 2010) (citing Horwitz v. Bd. of

Educ. of Avoca School Dist. No. 37, 260 F.3d 602, 619–20 (7th Cir. 2001)). So, off the

bat, Rockford and the Board are dismissed from Counts VIII and X without prejudice.

What’s more, a suit against officials in their official capacities is “merely another way

of alleging the claim against the entity for which the official is an agent.” Smoler v.

Bd. of Educ. for W. Northfield School Dist. #31, 524 F. Supp. 3d 794, 803 (N.D. Ill.

2021); see A.J. & R.J. v. Butler Ill. Sch. Dist. 53, No. 17 C 2849, 2018 U.S. Dist. LEXIS

49121, at *9 (N.D. Ill. Mar. 26, 2018). And although Ms. Moore seeks to change course

by arguing that naming them in their official capacity was a scriveners’ error, such a

substantial change cannot be made in response to a motion to dismiss. Shanahan v.

Chi., 82 F.3d 776, 781 (7th Cir. 1996). Accordingly, Ms. Makulec, Dr. Jarrett, and Ms.

Hoadley are dismissed from these claims without prejudice. Smoler, 524 F. Supp. 3d

at 803.

That leaves Ms. Moore’s retaliatory prosecution claim against SLO Lauer as

the sole survivor. To state a claim for retaliatory prosecution, a plaintiff must allege

that: “(1) he participated in an activity protected by the First Amendment; (2) he

suffered a harm—that is, the criminal charges—likely to deter future protected

activity; and (3) the charges were motivated by retaliation.” Towne v. Donnelly, 44

F.4th 666, 671 (7th Cir. 2022). The plaintiff must also allege that the charges were

brought without probable cause. Id.

Ms. Moore alleges that her “conduct in hiring an attorney, making it known

to defendants that [PM] would be filing suit, and in sending demands to defendants

to preserve all evidence,” was constitutionally protected activity. Dkt. 29, at ¶ 212.

Nevertheless, “out of a desire to retaliate against and/or chill/intimidate” her from

“taking any further legal action,” SLO Lauer, Rockford, and the Board referred PM

to the District Attorney’s2 office for juvenile criminal charges, “causing a charge to be

2 Ms. Moore repeatedly refers to the “District Attorney” in both the amended complaint and

response brief. But, in Illinois, there is no “district attorney.” Illinois has “state’s attorneys”.

55 ILCS § 5/3-9001 et seq.

brought.” Id. at ¶ 213. The charges were brought without probable cause, and the

charges were ultimately resolved in PM’s favor. Id. at ¶ 215.

Ms. Moore’s allegations sufficiently plead this claim. And although the School

District Defendants take issue as to whether Ms. Moore’s activity was, in fact,

“constitutionally protected,” Ms. Moore’s allegation that her activity was

constitutionally protected is sufficient. See Brown v. Chi. Transit Auth. Pension Bd.,

86 Fed. Appx. 196, 199 (7th Cir. 2004) (citing Kyle v. Morton High Sch., 144 F.3d 448,

454 (7th Cir. 1998)).

VII. The malicious prosecution claim (Count IX) may proceed under Illinois

law as alleged.

Ms. Moore brings a malicious prosecution claim, seemingly under Illinois law,3

against SLO Lauer, Rockford, and the Board. Dkt. 29, at ¶¶ 219–224. To state a claim

for malicious prosecution under Illinois law, the plaintiff must allege: “the

commencement or continuance of an original criminal . . . proceeding by the

defendant; (2) the termination of that proceeding in favor of the plaintiff; (3) the

absence of probable cause for such a proceeding; (4) the presence of malice; and (5)

damages resulting to the plaintiff.” Johnson v. Saville, 575 F.3d 656, 659 (7th Cir.

2009) (internal quotations and citation omitted). A defendant need not sign a criminal

complaint to have commenced or continued a prosecution. Padilla v. Chi., 932 F.

Supp. 2d 907, 928 (N.D. Ill. 2013). If the defendant played a “significant role in

3 The heading of Count IX states that Ms. Moore is bringing the claim under Illinois law.

Curiously, Ms. Moore later states that she is bringing the claim pursuant to § 1983. Dkt. 29,

at ¶ 219. Because there is no § 1983 claim for malicious prosecution in Illinois, the claim can

proceed only under Illinois law. See Llovet v. Chi, 761 F.3d 759, 762 (7th Cir. 2014).

causing the prosecution,” such as by making a false statement to a prosecutor about

a suspect, the defendant can be held liable. Id. at 928–29. “Malice” is simply acting

with “improper motives” Fabiano v. Palos Hills, 784 N.E.2d 258, 270 (Ill. App. Ct.

2002). “The absence of any one of these elements bars a plaintiff from pursuing the

claim.” Johnson, 575 F.3d at 659.

Ms. Moore alleges that, “[o]ut of a desire to retaliate against PM for and/or

chill him and his family from taking further legal action, [the defendants] decided to

refer and did refer PM to the District Attorney’s office for juvenile criminal charges,

causing a juvenile criminal charge to be brought against him.” Dkt. 29, at ¶ 220. The

juvenile criminal proceeding, which was initiated without probable cause, ultimately

terminated in PM’s favor. Id. at ¶¶ 221–22. Because of the charges, PM “suffered and

will continue to suffer additional serious, long-term, emotional and mental distress

and trauma.” Id. at ¶ 224.

In their motion to dismiss, the School District defendants only argue that the

claim is insufficient as alleged against the Board. See Dkt. 36-1, at 23–24. They

suggest that Ms. Moore failed to adequately allege that the Board “commenced or

continued” a criminal judicial proceeding. Id. But the complaint makes clear that they

are alleged to have referred PM for prosecution. Dkt. 29, at ¶ 220. Although discovery

may reveal whether, and to what extent, the Board played a role in commencing or

continuing the criminal judicial proceeding, at this stage, Ms. Moore’s allegations are

sufficient. See Padilla 932 F. Supp. 2d at 928.

Accordingly, Count IX may proceed against SLO Lauer, Rockford, and the

Board.

VIII. The respondeat superior claim (Count XI) is dismissed with prejudice, and

the indemnification claim (Count XII) can proceed as alleged.

Ms. Moore brings a respondeat superior claim against the Rockford and the

Board for the alleged malicious prosecution claimed in Count IX. Dkt. 29, at ¶¶ 233–

34. She also brings a claim for indemnification against Rockford and the Board. Id.

at ¶¶ 236–241.

The respondeat superior claim cannot hold water. There is no cause of action

for respondeat superior under Illinois law. Osundario v. Geragos, 447 F. Supp. 3d

727, 743 (N.D. Ill. 2020). Respondeat superior is only a theory of liability. Id. Thus,

Ms. Moore’s claim for respondeat superior is dismissed with prejudice.

Turning to the indemnification claim, the School District Defendants’ only

rationale for dismissing the indemnification claim is that they erroneously believed

that the Court would dismiss all of the § 1983 claims and the malicious prosecution

claim, leaving nothing “to indemnify under Illinois law.” Dkt. 36-1, at 25. The School

District Defendants were wrong, and because they have failed to develop other

reasons for dismissing the indemnification claim, the indemnification claim lives on.

M.G. Skinner & Assocs. Ins. Agency, Inc. v. Norman-Spencer Agency, Inc., 845 F.3d

313, 321 (7th Cir. 2017) (“Perfunctory and undeveloped arguments are waived, as are

arguments unsupported by legal authority.”).

IX. The prayer for punitive damages is stricken as it relates to Rockford, the

Board, Ms. Makulec, Dr. Jarrett, and Ms. Hoadley.

Punitive damages may not be pursued against Ms. Makulec, Dr. Jarrett, and

Ms. Hoadley because they are named in their official capacities. Graham, 473 U.S. at

167 n. 13. Punitive damages may not be pursued against the Rockford and the Board,

as well. Newport, 453 U.S. at 271. And although it is true that the individual

defendants cannot turn to public entities to indemnify an award of punitive damages,

the School District Defendants identify no authority suggesting that punitive

damages are unavailable for the individual defendants who are sued in their

individual capacities. 745 ILCS 10/2-102; Doe 20 v. Bd. of Educ. of Comm. Unit School

Dist. No. 5, 680 F. Supp. 2d 957, 994 (C.D. Ill. 2010). Thus, the prayer for punitive

damages can proceed as it relates to SLO Lauer, Mr. Dimke, Ms. Lee-Black, and Ms.

Badford.

CONCLUSION

For the foregoing reasons, and consistent therewith, Count III is dismissed in

part with prejudice; Count IV is dismissed without prejudice; Count V is dismissed

without prejudice; Count VI may proceed as alleged; Count VII is dismissed without

prejudice; Count VIII is dismissed in part without prejudice; Count IX can proceed

under Illinois law as alleged; Count X is dismissed without prejudice; Count XI is

dismissed with prejudice; Count XII can proceed as alleged; and the prayer for

punitive damages is stricken in part.

Ms. Moore has until May 19, 2023, to amend, and if an amended complaint is

not filed by that date, the dismissals without prejudice will convert to dismissals with

prejudice.

May 2, 2023 SS.

Honorable Iain D. Johnston

United States District Judge

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