Wolfgram v. Miller

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD WOLFGRAM et al.,

Plaintiffs, No. 21-cv-02755

v. Judge John F. Kness

DAVID MILLER et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs, students at Lake Forest Community High School District 115 (“the

District”) in the 1970s and 1980s, allege that their former teacher, David Miller,

sexually abused them and other male students for over 35 years. Plaintiffs allege that

the District knew about the abuse and intentionally concealed reports about the

sexual misconduct. Plaintiffs bring claims against the District and Miller for

childhood sexual abuse, battery, willful and wanton misconduct, negligence,

negligent failure to follow procedures, breach of fiduciary duty, intentional and

negligent infliction of emotional distress, failure to supervise, negligent retention,

Title IX discrimination, and violations of substantive due process directly and under

Monell.

The District moved to dismiss the Complaint, which Miller adopts, raising,

among other things, a statute of limitations challenge. As explained below, although

some of Plaintiffs’ claims are barred under a statute of repose, Plaintiffs have stated

a claim under the fraudulent concealment statute and the equitable tolling doctrine

sufficient to clear the relatively low bar of a motion to dismiss. Plaintiffs’ claims are

not clearly barred by the Illinois Tort Immunity Act or the Illinois School Code.

Moreover, Defendants are sufficiently put on notice of each of the challenged claims

against them set forth in the Complaint. Accordingly, Defendants’ motions to dismiss

is, in the main, denied.

I. BACKGROUND

Plaintiffs Richard Wolfgram, John M., Christopher Holvenstot, John Doe,

Michael de Koning, and Jonathan M. were students at Lake Forest Community High

School District 115 (the “District”) in the 1970s and 1980s. (Dkt. 1 (“Compl.”) ¶¶ 1, 7.)

Defendant David Miller worked at the District as both a teacher and an advisor to

the Tech Crew in the Theater Department. (Id.) Plaintiffs allege that Miller used his

position as a teacher and an advisor at the District to abuse Plaintiffs and other male

students on school property, at school-sanctioned trips, and at his house for over 35

years until his resignation in 2009. (Id. ¶¶ 10–20.) Plaintiffs also allege that the

District was aware of, ignored, and intentionally concealed the reports about Miller’s

inappropriate sexual conduct, while upholding Miller as an “upstanding teacher.”

(Id. ¶¶ 21, 98–99.)

According to the Complaint, Miller’s sexual abuse “was reported to the

principal of [the District] by a parent,” by “the early 1980’s.” (Id. ¶ 93.) The District

heard from “teachers, parents, village residents, and school administrators [who]

reported their concerns regarding Miller’s conduct to [the District].” (Id. ¶ 95.) The

District also “knew about widespread rumors that had been circulating for years

throughout the school” about Miller’s conduct but “turned a blind eye” by choosing

not to “document any of these complaints, intervene, investigate, or otherwise act in

response to these complaints.” (Id. ¶¶ 96–97.) During this time, the District continued

to hold Miller out “to be an upstanding teacher” by allowing Miller “unfettered access

to students both as a teacher and as the director of Tech Crew.” (Id. ¶¶ 99, 155.)

Finally, the District allowed Miller to “quietly resign” in September 2009. (Id. ¶ 98.)

How old each Plaintiff was at the time of the abuse and when Miller allegedly

abused each Plaintiff is stated in the Complaint:

 Plaintiff John M. alleges that he was abused “[i]n the fall of 1976 or spring of

1977” when he was “about 13 or 14” years old and attended a party at Miller’s

home (Id. ¶¶ 22–23);

 Plaintiff Christopher Holvenstot alleges that he was abused “between the fall

of 1977 and spring of 1979” when he was “between 15 and 17 years old” at

Miller’s home, on a trip to Mexico, and while canoeing on Lake Michigan with

Miller (Id. ¶¶ 31–41);

 Plaintiff Jonathan M. alleges that he was abused “[i]n the fall of 1978 or spring

of 1979” when he was “about 16 or 17” years old and attended a party at Miller’s

home (Id. ¶¶ 45–51);

 Plaintiff John Doe alleges that he was abused “in the winter between 1980 and

1981” when he was “17 years old” and Miller hugged and kissed him at Miller’s

home (Id. ¶¶ 54–62);

 Plaintiff Richard Wolfgram alleges that he was abused “between the fall of

1984 and spring of 1987” when he was “between 14 years and 17 years old”

(Id. ¶¶ 65–81);

 Plaintiff Michael de Koning alleges that he was abused “between the fall of

1986 and spring of 1988” when he was “between 15 years and 17 years old”

(Id. ¶¶ 84–89.)

Because of the District’s “misrepresentations and concealment,” Plaintiffs did

not “know or suspect that Defendants had done anything wrong.” (Id. ¶ 103.) Until

July 2019 “at the earliest,” Plaintiffs “suppressed the memories of the abuse they

suffered as minors.” (Id. ¶¶ 30, 44, 53, 64, 83, 92, 101.) Once Plaintiffs “discovered

that they had been suppressing the memories of their abuse, [they] discovered their

injuries, and became aware of their causes of action against [D]efendants.”

(Id. ¶ 101.)

Plaintiffs bring thirteen accounts against Defendants: childhood sexual abuse

(Count I), battery (Count II), willful and wanton misconduct (Count III), negligence

(Count IV), negligent failure to follow procedures (Count V), breach of fiduciary duty

(Count VI), intentional infliction of emotional distress (Count VII), negligent

infliction of emotional distress (Count VIII), failure to supervise (Count IX), negligent

retention (Count X), Title IX discrimination (Count XI), and substantive due process

violations, both directly (Count XII) and under Monell (Count XIII). The District1

moved to dismiss the Complaint, (Dkt. 15) and Miller filed a blanket motion to

dismiss “adopt[ing] all of Argument I” raised by the District’s motion. (Dkt. 17.)

Because Miller’s motion only adopts the District’s motion, which has been fully

briefed, both motions are considered fully briefed and are now before the Court for

resolution.

1 Plaintiffs name “Lake Forest Community High School District 115” and “Lake Forest

High School” as two separate entities throughout the Complaint. (See generally Compl.)

Under the Illinois School Code, however, the Board of Education is the appropriate legal

entity to be sued in these circumstances. 105 ILCS 5/10-2; see Bd. of Educ. of Bremen High

Sch. Dist. No. 228 v. Mitchell, 899 N.E.2d 1160, 1166 (Ill. App. Ct. 2008). Accordingly, absent

any objection from Plaintiffs, the Board of Education of Lake Forest High School District 115

moves to dismiss on behalf of Lake Forest Community High School.

II. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint generally need only

include “a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the

defendant fair notice of what the claim is and the grounds upon which it rests.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal punctuation omitted). As the Seventh Circuit has explained, this

rule “reflects a liberal notice pleading regime, which is intended to ‘focus litigation on

the merits of a claim’ rather than on technicalities that might keep plaintiffs out of

court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514 (2002)). A complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In

evaluating a motion to dismiss, the Court must accept as true the complaint’s factual

allegations and draw all reasonable inferences in the plaintiff’s favor. Id. at 678; see

also Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

Accordingly, a complaint states a claim “ ‘whether or not some defense is

potentially available.’ ” Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n,

377 F.3d 682, 688 (7th Cir. 2004) (quoting United States v. N. Trust Co., 372 F.3d 886,

888 (7th Cir. 2003)). A plaintiff need not, and should not, attempt to plead around

affirmative defenses. Gomez v. Toledo, 446 U.S. 635, 640–41 (1980) (holding that

defendant bears the burden of pleading defenses); Davis v. Ind. State Police, 541 F.3d

760, 763–64 (7th Cir. 2008) (“[T]he Justices did not revise the allocation of burdens

concerning affirmative defenses; neither Erickson nor Bell Atlantic mentions

affirmative defenses in general or Gomez in particular.”). Dismissal under Rule

12(b)(6) based on the statute of limitations is “irregular” in the Seventh Circuit

because it is an affirmative defense for which the defendant bears the burden of proof.

N. Trust Co., 372 F.3d at 888. Unless a litigant pleads itself out of court by alleging

(and thus admitting) the ingredients of a defense, dismissal under 12(b)(6) is

improper. See U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003).

III. DISCUSSION

The District moves to dismiss the Complaint on the grounds that each of

Plaintiff’s claims are untimely, barred by the Illinois Tort Immunity Act and Illinois

School Code, and fail to state valid causes of action. As explained more fully below,

although some of Plaintiffs’ claims may ultimately be barred under a statute of

repose, all Plaintiffs have sufficiently stated a claim under the fraudulent

concealment statute and the equitable tolling doctrine to survive a motion to dismiss.

Additionally, Plaintiffs’ claims are not clearly barred by the Illinois Tort Immunity

Act or the Illinois School Code. Finally, the Complaint sufficiently puts Defendants

on notice of each of the challenged claims against them.

A. Statute of Limitations

The District contends that the applicable statute of limitations is the version

of the two-year personal injury statute of limitations that was in effect at the time of

Plaintiffs’ abuse from 1976 and 1988. See 735 ILCS 5/13-202. Because all Plaintiffs

were minors at the time of the abuse, the District argues that Plaintiffs had until two

years after they turned 18 years old to file this action under 735 ILCS 5/13-211.

Accordingly, the District argues that Plaintiffs’ action has been time-barred since

each Plaintiffs’ twentieth birthday, which was before Illinois’s specific statute of

limitations for claims “based on childhood sexual abuse” went into effect. See 735

ILCS 5/13-202.2; see also (Dkt. 16 at 2–5.)

Plaintiffs do not dispute that their claims would be time-barred under the

general two-year statute of limitations for personal injury claims. (See Dkt. 21 at 3.)

Nor do Plaintiffs dispute that the specific statute of limitations for claims based on

child sexual abuse does not apply. (See id.) Instead, Plaintiffs rely on a number of

legal theories to establish that Defendants, by their conduct, prevented Plaintiffs

from bringing their claims sooner. (See id. at 3–7.) Plaintiffs assert that such conduct

raises the discovery rule, fraudulent concealment, and equitable estoppel. (Id.) Each

argument is reviewed in turn.

1. Discovery Rule

Because the discovery rule is a rule of accrual, the Court must first determine

which specific statute governs Plaintiffs’ claims. See Hermitage Corp. v. Contractors

Adjustment Co., 651 N.E.2d 1132, 1137 (Ill. 1995) (“The discovery rule delays the

commencement of the relevant statute of limitations until the plaintiff knows or

reasonably should know that he was been injured and that his injury was wrongfully

caused.”). This analysis is more nuanced than the parties’ briefing suggests. Neither

side explains why “the statute of limitations [for personal injury claims] ran before

1991,” thereby rendering inapplicable the childhood sexual abuse limitations period

under 735 ILCS 13-202.2 that went into effect “at least one year after the limitations

period [for personal injury claims] ran.” (Dkt. 16 at 2–3.) Nor does either party

address the effect of a statute of repose on Plaintiffs’ claims. To determine the

relevant statute of limitations, therefore, the Court is required to follow the command

of Erie Railroad v. Tompkins, 304 U.S. 64 (1938), discern how the Illinois Supreme

Court would treat the claims, and then follow that course.

As Defendant points out, in M.E.H. v. L.H., the Illinois Supreme Court held

that “once a statute of limitations expired, the defendant has a vested right to invoke

the bar of the limitations period as a defense to a cause of action. That right cannot

be taken away by the legislature without offending the due process protections of our

state’s constitution.” 685 N.E.2d 335, 339 (Ill. 1997). Illinois’s childhood sexual abuse

law, cited in each of the party’s briefs, historically provided that “in no event may an

action for personal injury based on childhood sexual abuse be commenced more than

12 years after the date on which the person abused attains the age of 18 years.” 735

ILCS § 5/13-202.2(b) (1992) (effective July 1, 1991, repealed January 1, 1994). This

mandate meant that “any claims for personal injury based on childhood sexual abuse

had to be brought by the plaintiff’s thirtieth birthday, and as a statute of repose it

operated to bar actions regardless of whether the plaintiff had discovered the injury.”

Anderson v. Catholic Bishop of Chi., 759 F.3d 645, 648 (7th Cir. 2014) (and collecting

cases). Although the “statute of repose was not in effect when the [alleged] abuse

occurred and was repealed before the action was filed[,]” if Plaintiffs’ claims were

time-barred under the old law, they remained time-barred even after . . . the

legislature ha[d] subsequently changed its position.” M.E.H., 685 N.E.2d at 338, 341.

Plaintiffs allege that Miller’s abuse took place at various times between 1976

and 1988, and that the District knew about and concealed this abuse. Reviewing the

ages and dates from the Complaint, the Court has determined the date on which each

Plaintiff turned thirty years old. According to the Complaint:

 Plaintiff John M. turned thirty sometime in 1993 (abused in 1976 or

1977 when he was 13 or 14 years old);

 Plaintiffs Holvenstot and Jonathan M. turned thirty sometime in 1992

(Holvenstot abused in 1977 and in 1979 when he was 15 and 17 years

old; Jonathan M. abused in 1978 or 1979 when he was 16 or 17 years

old);

 Plaintiff John Doe turned thirty sometime in 1994 (abused between

1980 and 1981 when he was 17 years old);

 Plaintiff Wolfgram turned thirty sometime in 2000 (abused between

1984 and 1987 when he was between 14 and 17 years old);

 Plaintiff de Koning turned thirty sometime in 2001 (abused between

1986 and 1988 when he was between 15 and 17 years old).

(See Compl. ¶¶ 22–23, 31–41, 45–51, 54–62, 65–81, 85–89.)

These dates, undisputed in the context of Defendants’ motions to dismiss,

dictate whether the now-repealed statute of repose governing childhood sexual abuse

claims applied to Plaintiffs’ claims. Under Illinois law, “the limitations period

‘governing a claim is determined by the nature of the party’s injury rather than the

nature of the facts from which the claims arises.’ ” Anderson, 759 F.3d at 647 (quoting

Doe A. v. Diocese of Dallas, 917 N.E.2d 475, 487 (Ill. 2009)). Although the statute of

repose was repealed effective January 1, 1994, “the repeal does not avoid the impact

of the statute of repose” as to those Plaintiffs whose claims “were extinguished prior

to the repeal.” Anderson, 759 F.3d at 648 (citing M.E.H., 685 N.E.2d at 339). Based

on the Court’s calculation, therefore, Plaintiffs John M., Holvenstot, and Jonathan

M. turned thirty years old in 1993, 1992, and 1992 respectively—before the statute

of repose was repealed. Those Plaintiffs’ claims are subject to the statute of repose.

It is well-established that “[w]here the legislature shortens the time for

bringing suit, the courts will not apply the new legislation in a way that will

instantaneously extinguish a cause of action that existed before the legislation took

effect.” M.E.H., 685 N.E.2d at 340. Instead, “Plaintiffs must proceed within a

reasonable time following the effective date of the statute of repose” or risk their

actions be barred “even if they have not yet discovered that they have a claim.” Id.

Although the determination of reasonableness turns on the particular facts and

circumstances of each case, the Illinois Supreme Court has held that “to allow a

period of time greater than the repose itself would defeat the purpose of the statute.”

Id.

Plaintiffs do not argue that this action—brought in 2021, almost 30 years after

the statute of repose’s effective date—meets that reasonableness standard. See Id. at

340–41 (holding that the nearly 4-year delay was not reasonable). Consequently,

“regardless of whether the plaintiff[s] had discovered the[ir] injury,” Plaintiffs John

M., Holvenstot, and Jonathan M.’s claims were barred once they reached the age of

thirty or so because each turned thirty before the statute of repose was repealed and

failed to assert their claims “within a reasonable time after that effective date.”2

Anderson, 759 F.3d at 648; see also M.E.H., 685 N.E.2d at 340–41 (finding the statute

of repose applied to plaintiffs where they delayed filing their complaint for two years

after discovering the abuse, leading to plaintiffs’ complaint being filed 3 years and 10

months after the twelve-year repose period had taken effect); Doe v. Boy Scouts of

Am., 66 N.E.3d 433 (Ill. App. Ct. 2016) (finding the statute of repose applied to

plaintiff’s claims despite neither party making the argument).

Determining the “relevant statute of limitations” period the discovery rule

would accrue is the next task for the Court. See Hermitage Corp., 651 N.E.2d at 1137.

Before January 1, 1991, claims for personal injury resulting from childhood sexual

abuse were governed by the two-year limitations period. 735 ILCS 5/13-202 (2016);

Clay v. Kuhl, 727 N.E.2d 217, 220–21 (Ill. 2000). On January 1, 1991, the Illinois

legislature adopted chapter 13-202.2 (“childhood sexual abuse” law) of the Code (P.A.

86-1346 (eff. Jan. 1, 1991)), which codified the common-law discovery rule for actions

involving childhood sexual abuse. 735 ILCS 5/13-202.2(b) (1992) (making clear that

the two-year limitations period does not begin to run until the victim “discovers or

through the use of reasonable diligence should discover” that the abuse occurred and

that the abuse caused the personal injury).

Based on the Court’s calculation,3 by the time Illinois’s “childhood sexual

2 Plaintiffs John Doe, Wolfgram, and de Koning claims, however, are not extinguished

because they turned thirty sometime in 1994, 2000, and 2001 respectively—after the statute

of repose was repealed.

3 The Court calculated the date on which Plaintiffs John Doe, Wolfgram, and de Koning’s

claims accrued by adding two years to the date on which each Plaintiff attained majority. See

735 ILCS 5/13-211 (West 1988). According to the Complaint, Plaintiff John Doe’s claim

abuse” law came into effect in 1991, Plaintiffs Wolfgram and John Doe’s claims would

have already been time-barred, absent any other accrual or tolling, under the general

limitations period for personal injury claims. See 735 ILCS 5/13-202.2(e) (1992) (“This

Section applies to actions pending on the effective date of this amendatory Act of 1990

as well as to actions commenced on or after that date.”). Plaintiff de Koning’s claims,

however, would have expired after January 1, 1991, absent any other accrual or

tolling, and therefore made the cutoff date for section 13-202.2(b) to apply. Because

the discovery rule applies to both the two-year personal injury limitations period by

way of common law and the two-year period governing childhood sexual abuse claims

by way of statutory law, the Court may turn to the application of the discovery rule

no matter which of the two is the “relevant statute of limitations.” See Hermitage

Corp., 651 N.E.2d at 1137.

Under the discovery rule, a cause of action accrues “when the party knows or

reasonably should know of an injury and that injury was wrongfully caused.” Clay,

727 N.E.2d at 220. Limitations period commences even if the plaintiff does not know

that the misconduct was actionable. Parks v. Kownacki, 737 N.E.2d 287, 294 (Ill.

2000). Whether the discovery rule applies is generally a question of fact, but “may be

determined as a matter of law when the answer is clear from the pleadings.” Clay,

727 N.E.2d at 221.

accrued in 1982 (abused between 1980 and 1981 when he was 17 years old); Plaintiff

Wolfgram’s claim accrued in 1988 (abused between 1984 and 1987 when he was between 14

and 17 years old); Plaintiff de Koning’s claim accrued in 1989 (abused between 1986 and 1988

when he was between 15 and 17 years old). (See Compl. ¶¶ 22–23, 31–41, 45–51, 54–62, 65–

81, 85–89.) Because Plaintiff de Koning turned 18 years old sometime in 1989, he turned 20

years old sometime in 1991.

The District relies heavily on two Illinois Supreme Court cases that rejected

the application of the discovery rule in childhood sexual abuse cases: Clay v. Kuhl

and Parks v. Kownacki. Both Clay and Parks stand for the proposition that the

discovery rule does not toll the statute of limitations if the plaintiff is aware of the

abuse when it occurred. Clay, 727 N.E.2d at 221–23; Parks, 737 N.E.2d at 294–95.

In Clay, the Illinois Supreme Court determined that, because the plaintiff was

“always aware of the misconduct charged,” did “not argue that she repressed her

memories of the abuse,” and postponed filing her complaint until 13 years after she

reached the age of majority, her complaint was time-barred as a matter of law. Clay,

727 N.E.2d at 222. There, the plaintiff, born in 1964, admitted knowing of the abuse

when it occurred in the 1970s, but stated that she did not realize that her “sexual

encounters” with the defendant had caused her psychological injuries until 1994. Id.

Relying on the discovery rule to save her otherwise untimely complaint, the plaintiff

filed suit in 1996. Id. Rejecting the discovery rule and reiterating the well-established

rule, the court held that “[t]here is no requirement that a plaintiff must know the full

extent of his or her injuries before suit must be brought under the statute of

limitations.” Id. Plaintiff’s awareness of the abuse amounted to her knowing she was

injured because “Illinois law presumes an intent to harm and a resulting injury from

[sexual abuse of another, especially a minor].” Id. (collecting cases).

Likewise in Parks, the plaintiff alleged that, while she had not repressed

memories of the abuse by her priest, she did not connect her post-traumatic stress

disorder diagnosis with that abuse until over 20 years after the abuse. Parks, 737

N.E.2d at 294–95. And the plaintiff alleged that when the abuse was occurring, she

did not know that the sexual relationship between her and her priest was wrong. Id.

In rejecting the applicable discovery rule, the court, citing Clay, held that the

“plaintiff was aware of both the cause and some injury.” Id. at 295. Because, despite

her allegations, the plaintiff reported the abuse to her parents and a church leader,

the court concluded that the plaintiff “reasonably should have been aware of that

injury at th[e] time.” Id.

Unlike the plaintiffs in Clay and Parks, Plaintiffs here allege that they

“suppressed the memories of the abuse they suffered as minors until recently.”

(Compl. ¶ 101.) Plaintiffs do not state that they were the ones to report the abuse to

the District—which would suggest Plaintiffs “reasonably should have been aware of

[their] injuries.” Parks, 737 N.E.2d at 295. Rather, Plaintiffs allege that the District

had received “reports of abuse dating as far back as 1970’s and continuing

through . . . 2009.” (see e.g., id. ¶ 167.) On its face, this does not “give rise to an

immediate awareness of injury.” Clay, 727 N.E.2d at 222. On the contrary, the

Complaint states that Miller’s abuse caused physical and psychological injuries to

Plaintiffs that prevented them from discovering that they had been sexually abused

and injured until July 2019. (Compl. ¶¶ 30, 44, 53, 64, 83, 92.) Each Plaintiff alleges

that he “has incurred and will continue to incur expenses for psychological treatment,

therapy, and counseling” as a result of those injuries. (Id. ¶¶ 29, 43, 52, 63, 82, 91.)

Accepting Plaintiffs John Doe, Wolfgram, and de Koning’s allegations as true,

Plaintiffs repressed memories of the abuse and were unaware of the conduct charged

until July 2019. Other courts in this District have refused to dismiss similar

complaints as untimely. See, e.g., Tate v. Sheahan, 2019 WL 2248543, at *2 (N.D. Ill.

May 24, 2019) (plaintiff alleged she had repressed the sexual abuse until a mental

health professional explained to her the injury); Doe v. Soc’y of the Missionaries of the

Sacred Heart, 2012 WL 5499430, at *4 (N.D. Ill. Nov. 13, 2012) (plaintiff’s “memory

of the abuse . . . was not in his conscious awareness throughout his adolescent and

adult life” until an incident “triggered a flood of memories” about the sexual abuse).

Accordingly, and although a more developed record may show that Plaintiffs

Wolfgram, Holvenstot, and John Doe were aware of Miller’s actions and that they

caused Plaintiffs injury sooner, the Complaint does not clearly demonstrate that the

statute of limitations bars their claims. See Walker v. Thompson, 288 F.3d 1005, 1009

(7th Cir. 2002) (courts may dismiss a complaint “when the existence of a valid

affirmative defense is so plain from the face of the complaint that the suit can be

regarded as frivolous”).

2. Fraudulent Concealment

Separately, Plaintiffs contend that their claims are timely under the

fraudulent concealment doctrine, as codified in 735 ILCS 5/13-215. Plaintiffs argue

that the District both “actively concealed knowledge of Miller’s abuse from students

and parents” by holding Miller out as an “upstanding teacher,” and “forged a close

relationship between teachers and students” that created a duty for the District to

reveal its knowledge about Miller’s conduct. (Dkt. 21 at 5–7.) Although the discovery

rule cannot save an action that has expired under a statute of repose, the fraudulent

concealment statute may revive a cause of action whether it is barred by a statute of

limitations or a statute of repose. Wisniewski v. Diocese of Belleville, 943 N.E.2d 43,

72 (Ill. App. Ct. 2011).

Where a cause of action is fraudulently concealed by the liable person, the

party entitled to the knowledge has five years after they discover the cause of action

to file a complaint. 735 ILCS 5/13-215 (West 2012). To establish that the limitations

period should be tolled based on fraudulent concealment, Plaintiff must demonstrate

that the District engaged in “ ‘affirmative acts or representations which [were]

calculated to lull or induce [Plaintiffs] into delaying filing of [their] claim or to prevent

[Plaintiffs] from discovering [their] claim[s].’ ” Boy Scouts of Am., 66 N.E.3d at 456

(quoting Wisniewski, 943 N.E.2d at 73). Generally, “mere silence on the part of the

defendant and failure by the plaintiff to discover a cause of action is not enough to

establish fraudulent concealment.” Id. But where there is a “special relationship”

between the plaintiff and the defendant that creates a “duty to reveal the facts to the

plaintiff,” silence can be “as fraudulent as an actual affirmative false representation

or act.” Wisniewski, 943 N.E.2d at 73.

The District argues that it “cannot conceal information it does not possess.”

(Dkt. 16 at 5.) To that end, the District contends that Plaintiffs have failed to show

that the District knew of Miller’s abuse; that it acted with intent to “lull or induce”

Plaintiffs to fail to discover their individual claims; or that, as a matter of law, a

“special relationship” exists between a school district and a student to support a claim

of fraudulent concealment by way of omission. (Dkt. 22 at 4–7.)

Turning first to the District’s knowledge of Miller’s conduct, the Complaint

sufficiently states that the District was aware of the alleged abuse. Plaintiffs state

that Miller’s sexual abuse “was reported to the principal of [the District] by a parent,”

by “the early 1980’s.” (Compl. ¶ 93.) It is also alleged in the Complaint that sometime

“prior to 2009, when Miller eventually resigned, teachers, parents, village residents,

and school administrators reported their concerns regarding Miller’s conduct to [the

District].” (Id. ¶ 95.) Finally, the Complaint also maintains that the District “knew

about widespread rumors that had been circulating for years throughout the school”

about Miller’s conduct (id. ¶ 96), but “turned a blind eye” by choosing not to “document

any of these complaints, intervene, investigate, or otherwise act in response to these

complaints.” (Id. ¶ 97.) Taking Plaintiffs’ allegations—even if broadly worded—as

true, the Complaint adequately “calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence supporting the plaintiff’s allegations.”

Brooks, 578 F.3d at 581 (cleaned up).

The District also argues that Plaintiffs’ failure to identify which specific

individuals informed the District of the abuse when it occurred or at any time after

it happened renders the Complaint deficient. (Dkt. 22 at 5 (citing Horn v. Goodman,

60 N.E.3d 922, 928–29 (Ill. App. Ct. 2016) (no fraudulent concealment at the motion-

to-dismiss stage where plaintiff failed to allege that he or the aggressor informed the

defendant of the abuse and the plaintiff offered no facts that the defendant knew of

the abuse).)

First, unlike the plaintiffs in Horn, Plaintiffs here need not plead with

specificity at the motion-to-dismiss stage in federal court. See Johnson v. Hondo, Inc.,

125 F.3d 408, 417 (7th Cir. 1997) (overruled in part on other grounds) (“[I]t is

rudimentary that pleading requirements in the federal courts are governed by the

federal rules and not by the practice of the course in the state in which the federal

court happens to be sitting.” (quotation omitted)). Instead, drawing all reasonable

inferences in Plaintiffs’ favor, the Complaint sufficiently states an argument that

Defendants knew of Miller’s alleged behavior. See Tamayo, 526 F.3d at 1081.

Second, Plaintiffs allege enough facts to support that the District took

affirmative steps to prevent Plaintiffs from discovering their claims. Plaintiffs state

that the District, despite knowing of Miller’s conduct, “allowed [him] to quietly resign”

(id. ¶ 98) and “held Miller out to be an upstanding teacher by continuing to allow and

encourage Miller to have unfettered access to students both as a teacher and as the

director of Tech Crew” (id. ¶ 99.) Plaintiffs sufficiently plead that the District, by

“placing Miller in charge of the Theater, Tech Crew, and Telecom programs,” (id. ¶

180), engaged in “affirmative acts” intended to prevent Plaintiffs from discovering

their injuries. See Boy Scouts of Am., 66 N.E.3d at 456.

Third, Plaintiffs plausibly allege that the district “fostered a special

relationship” between teachers and students by holding out its agents, including

Miller, as “authority figures.” (Compl. ¶ 135.) To state a claim of fraudulent

concealment based the District’s silence, Plaintiffs must establish that “a special

relationship” existed between Plaintiffs and the District that placed the District “in

a position of influence and superiority over [Plaintiffs],” thereby creating “a duty to

reveal the facts to [Plaintiffs].” Wisniewski, 943 N.E.2d at 73–74. Plaintiffs allege that

the District “fostered a special relationship” between teachers and students by

allowing Miller to use school grounds after-hours to congregate with students and to

go on overnight trips with students. (Compl. ¶¶ 135, 137–40.) Reviewed as a whole,

the Complaint adequately alleges that the District “fraudulently concealed []

knowledge” of Miller’s abuse. (See Compl. ¶ 99.)

The District relies on several cases for the proposition that a school, as a matter

of law, owes no duty to protect a student who was allegedly sexually abused by a

teacher. (Dkt. 22 at 6–7 (citing Jane Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd. Of

Directors, 973 N.E.2d 880, 888 (Ill. 2012); Nabozny v. Podlesny, 92 F.3d 446, 459 (7th

Cir. 1996); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990)).)

These cases are unpersuasive because “they do not analyze the relationship between

a [student] and a [school] in terms of applying the fraudulent concealment statute.”

Wisniewski, 943 N.E.2d at 75. In view of the undeveloped nature of the caselaw on

the issue of what kinds of relationships qualify, as a matter of law, as “special” in the

context of a fraudulent concealment argument, the Court defers its ruling on this

issue at this time. See id. at 81 (application of the fraudulent concealment doctrine

“is usually a question of fact”). Although Plaintiff will ultimately bear the burden to

prove fraudulent concealment, Plaintiff has sufficiently made out a claim under the

fraudulent concealment doctrine to survive the motion-to-dismiss stage. See In Re

Copper Antitrust Litig., 436 F.3d 782, 790–91 (7th Cir. 2006),

Based on these facts, which the Court must accept as true, it is not clear from

the Complaint that Plaintiffs fail to satisfy the elements of fraudulent concealment.

Unlike the discovery rule, the fraudulent concealment doctrine can toll a statute of

repose “if a plaintiff does not discovery his claim due to fraudulent concealment on

the party of the defendant.” Wisniewski, 943 N.E.2d at 70. Accordingly, Plaintiffs

John M., Holvenstot, and Jonathan M.’s claims are not incurably extinguished by the

statute of repose, and may possess claims to toll under the fraudulent concealment

doctrine if they prevail on the merits at a later stage. See N. Trust Co., 372 F.3d at

888 (“Even with respect to elements of the plaintiff’s claim, complaint need not plead

facts or legal theories.”).

3. Equitable Estoppel

Plaintiffs contend that, because the District concealed its knowledge of Miller’s

conduct, Defendants are equitably estopped to invoke the statute of repose. (Dkt. 21

at 7.) As with the fraudulent concealment statute, the essence of the doctrine is that

“one cannot justly or equitably lull his adversary into a false sense of security, causing

him to subject his claim to the bar of the statute, and then plead the very delay caused

by his course of conduct.” Beynon Bldg. Corp. v. Nat’l Guardian Life Ins. Co., 455

N.E.2d 246, 252 (Ill. App. Ct. 1983). Unlike fraudulent concealment, however,

equitable estoppel “may arise even though there was no intention on the part of the

party estopped to relinquish any existing right.” Anderson v. Holy See, 878 F. Supp.

923, 935 (N.D. Ill. 2012).

For the same reasons Plaintiffs have sufficiently stated a claim for fraudulent

concealment based on affirmative acts, Plaintiffs have met their burden at this stage

on the issue of equitable estoppel. Similar to the fraudulent concealment doctrine,

the principle of equitable estoppel apply to a statute of repose as well as the

limitations period. See Witherell, 515 N.E.2d at 73. As such, Plaintiffs John M.,

Holvenstot, and Jonathan M. may also possess claims to estop the District to assert

a statute of limitations defense at a later stage. See N. Trust Co., 372 F.3d at 888

(“Resolving defenses comes after the complaint stage.”).

In summary, it is not clear from the face of the Complaint that Plaintiffs have

pleaded themselves out of court by admitting the elements of the statute of

limitations defense. See Walker, 288 F.3d at 1010. Accordingly, the Complaint cannot

be dismissed as untimely at this stage. See N. Trust Co., 372 F.3d at 888 (noting that

dismissing a case as untimely based on the allegations of a complaint is “irregular”).

B. Tort Immunity

The District contends that it is immune from suit under various provisions of

the Illinois Tort Immunity Act and the Illinois School Code for injuries resulting from

the exercise of its discretionary authority, failure to supervise, and ordinary

negligence (Dkt. 16 at 5–8.) Plaintiffs respond that the Complaint does not contain

sufficient information for the Court to find that immunity is available under any of

these provisions at the motion-to-dismiss stage. (Dkt. 21 at 7–13.) Each contention is

addressed in turn.

As with a statute of limitations, the Tort Immunity Act provides affirmative

defenses for which the District has the burden of proof. See Van Meter v. Darien Park

Dist., 799 N.E.2d 273, 280 (Ill. 2003). As explained more fully below, Plaintiffs do not

plead facts sufficient to implicate the Act at this stage of the litigation. Accordingly,

the Court defers its decision on the District’s immunity under the Tort Immunity Act

and the Illinois School Code until the parties have developed a more complete factual

record.

1. Immunity for Discretionary Acts

The District argues that it is immune under Section 2-201 of the Tort

Immunity Act for all personnel and investigatory decisions, including the decision not

to investigate allegations of Miller’s conduct or terminate Miller’s employment, as

well as its decision to allow Miller to “quietly resign.” (Dkt. 16 at 6–7.) Section 2-201

provides that:

A public employee serving in a position involving the determination of

policy or the exercise of discretion is not liable for an injury resulting

from his act or omission in determining policy when acting in the

exercise of such discretion even though abused.

745 ILCS 10/2-201.

Although this section only expressly immunizes “public employees,” local

public entities like the District “are also clothed with immunity if their employees are

not liable for the injury resulting from their acts or omissions.” La Porta v. City of

Chi., 277 F. Supp. 3d 969, 997 (N.D. Ill. 2017) (citing Arteman v. Clinton Cmty. Unit

Sch. Dist. No. 15, 763 N.E.2d 756, 762–63 (Ill. 2002)). This section has been

interpreted by the Illinois Supreme Court to apply only where the public employee’s

actions involve “both a determination of policy and an exercise of discretion.” Id.

(citing Van Meter, 799 N.E.2d at 283).

The District argues that section 2-201 shields it from liability for injuries

resulting from its decisions related to hiring, retention, supervision, training of

employees, and internal investigations. (Dkt. 16 at 6.) According to the District, all

personnel and investigatory-related decisions require discretion and determination

of policy. (Id. at 6–7 (citing Reed v. City of Chi., 2002 WL 406983, at *3 (N.D. Ill. Mar.

14, 2002) (“While there are most likely guidelines in hiring, training and supervising

employees, all three acts still require discretion, balancing of interests, and judgment

calls.”).).) Because there was no legal mandate to train and educate school employees

about sexual abuse during the relevant period, the District argues that “whether and

how [it] decided to supervise, train, and educate its employees was a matter of

discretion and determination policy.” (Dkt. 22 at 9.)

Although the District may ultimately prevail on this argument, it is not clear

from the face of the Complaint that such decisions fall within the ambit of section 2-

201. Contrary to ministerial acts, “which a person performs . . . without reference to

the official’s discretion as to the propriety of the act,” discretionary acts “are those

which are unique to a particular public office.” Van Meter, 799 N.E.2d at 380. But

section 2-201 analysis “resists precise formulation.” See Doe v. Thorton Twp. High

Sch. Dist. 205 Bd. of Educ., 2021 WL 1172608, at *7 (N.D. Ill. Mar. 29, 2021) (quoting

Snyder v. Curran Twp., 657 N.E.2d 988, 992 (Ill. 1995)). Plaintiffs allege that the

District had “policies, de facto practices, and customs in place” to withhold allegations

of sexual misconduct, not to fully investigate allegations of sexual misconduct, not to

remove employees accused of sexual misconduct, and that the District was

“deliberately indifferent to the known risk” of such policies. (Compl. ¶¶ 192–95.) In

view of Plaintiffs’ allegations, which the Court must accept as true, it not apparent

from the face of the Complaint that the District’s alleged acts and omissions were

discretionary as a matter of law.

Moreover, before the Court “can determine whether [the District] is immune

from negligence liability based upon willful and wanton acts or omissions, it must

first determine if any duty of care by the public entity exists.” Doe, 2021 WL 1172608,

at *7. Just as the Court cannot, as a matter of law, determine whether a special

relationship existed between Plaintiffs and the District in the context of the

fraudulent concealment statute, the Court cannot identify from the face of the

Complaint whether the District owed Plaintiffs a duty in the context of section 2-201.

It is unclear on the face of the Complaint who made the decisions not to fire Miller,

or not to investigate the reports of abuse, or not to notify the students and parents of

the abuse, or to allow Miller to “quietly resign.” It thus cannot be presently concluded

by the Court, as a matter of law, that Section 2-201 immunity applies.

The District cites several cases in which other judges in this District have

dismissed allegations “similar to those made by Plaintiff[s]” based on section 2-201

immunity. (Dkt. 22 at 8–9 (citing Moore v. Bd. Of Educ. of City of Chi., 300 F. Supp.

2d 641, 644 (N.D. Ill. 2004); Reed v. City of Chi., 2002 WL 406983, at *3 (N.D. Ill.

Mar. 14, 2002); Hartman v. Lisle Park Dist., 158 F. Supp. 2d 869, 877 (N.D. Ill. 2001);

Jackson v. City of Chi., 1997 WL 285770, at *1 (N.D. Ill. May 22, 1997); Taylor v. City

of Chi., 1997 WL 51445, at *4, *6 (N.D. Ill. Feb. 3, 1997); Collins v. Metcalfe, 1996 WL

637592, at *3 (N.D. Ill. Oct. 18, 1996).) But none of these cases involved claims that

the defendant possessed knowledge of the complained of conduct and intentionally

failed to take action, or that the conduct involved sexual abuse—distinctions that may

prove to be significant in the context of a Section 2-201 analysis. See Snyder, 657

N.E.2d at 992–93 (“[W]hether acts are discretionary or ministerial must be made on

a case-by-case basis.”).

The District also cites Thompson v. Bd. of Educ. Twp. High Sch. Dist. 113, 2015

WL 12660367 (Ill. Cir. Ct. Jan. 23, 2015) for the same proposition. (Dkt. 22 at 9.)

Thompson is not only not binding on this Court, but also distinguishable from this

case. In Thompson, the court acknowledged that “the outer limits of the definition of

‘discretionary’ are murky,” but ultimately found the complaint sufficient to find

immunity under the Act. 2015 WL 12660367, at *7. Unlike here, the individual

defendants who made the allegedly discretionary decisions in Thompson were

identified and named as Defendants. Neither the District nor Plaintiffs have

identified who made the decisions for which the District seeks immunity. Because the

District bears the burden to prove the affirmative defense of governmental immunity,

the Court cannot at this stage conclude as a matter of law that Section 2-201

immunity applies. See Van Meter, 799 N.E.2d at 380.

2. In Loco Parentis and Supervisory Immunity

The District argues that it is entitled to qualified immunity under section 24-

24 of the Illinois School Code and section 3-108 of the Illinois Tort Immunity Act for

claims arising from negligent supervision. (Dkt. 16 at 7–8.) Section 3-108 provides

that “neither a local public entity nor a public employee who undertakes to supervise

an activity on or the use of any public property is liable for an injury unless the local

public entity or public employee is guilty of willful and wanton conduct in its

supervision proximately causing such injury.” 745 ILCS 10/3-108(a). Willful and

wanton conduct is defined in the Act as “a course of action which shows an actual or

deliberate intention to cause harm or which, if not intentional, shows an utter

indifference to or conscious disregard for the safety of others or their property.” 745

ILCS 10/1-210.

Similarly, Section 24-24 of the Illinois School Code confers in loco parentis

immunity upon school districts from suits for negligence as to any activities connected

with school programs, 105 ILCS 5/24-24; Hopwood v. Elmwood Cmty. High Sch. Dist.

322, 525 N.E.2d 247, 248–49 (Ill. App. Ct. 1988). Like supervisory immunity, in loco

parentis immunity does not apply to willful and wanton conduct. Hopwood, 525

N.E.2d at 248–49 (“In the absence of proof of willful and wanton

misconduct . . . school districts are not liable for ordinary negligence.”).

Plaintiffs allege that the District had a duty to supervise Miller and his

activities with students, and acted with “deliberate or reckless disregard for

[P]laintiffs’ safety and wellbeing” by ignoring the alleged sexual abuse. (Compl. ¶¶

126–27.) Plaintiffs state that the District had actual knowledge of Miller’s behavior,

but recklessly or intentionally allowed Miller to continue his employment and

implemented no restriction to Miller’s access to students. (Id. ¶ 127.) Plaintiffs allege

that the District possessed knowledge of Miller’s sexual misconduct towards male

students and then allowed him to continue to have isolated access to such students

despite the known risk of sexual abuse, which continued to occur. (Id. ¶¶ 126–27.)

Plaintiffs contend that the District’s omissions caused Plaintiff personal, emotional,

and pecuniary injuries. (Id. ¶ 119.)

Assuming these allegations are true, the District capacitated the sexual abuse

of the minors; and this would constitute willful and wanton conduct under the Act.

See Doe, 2021 WL 1172608, at *8 (defendants alleged to have “effectively allowed the

sexual abuse of the minors they were charged to protect and educate” constitutes

willful and wanton conduct). Accordingly, the Court cannot dismiss Plaintiffs’ claims

under either section 3-108 of the Act or section 24-24 of the Illinois School Code. See

Van Meter, 799 N.E.2d at 284 (an affirmative defense “must be apparent on the face

of the complaint”).

C. Plausibility of Plaintiffs’ Claims

Finally, the District argues that all of Plaintiffs’ claims must be dismissed for

failure to state a claim. (Dkt. 16 at 9–14.) In view of the liberal requirements of notice

pleaded, as explained regularly by our Circuit’s Court of Appeals, Plaintiffs have

sufficiently stated their claims against the District to survive a motion to dismiss. See

Brooks, 578 F.3d at 581 (“[A] well-pleaded complaint may proceed even if it strikes a

savvy judge that actual proof of those facts is improbable, and that a recovery is very

remote and unlikely.” (quotation omitted)).

1. Child Abuse, Battery, and IIED (Counts I, II, and VII)

The District contends that, as a matter of law, it cannot be held liable for

Miller’s alleged sexual abuse, battery, and intentional infliction of emotional distress

because such conduct fell outside the scope of Miller’s employment. (Dkt. 16 at 9.)

Plaintiffs do not object to the dismissal of Count I (childhood sexual abuse) and Count

II (battery) with respect to the District, but respond that Count VII does not rest on

a vicarious liability theory of harm against the District. (Dkt. 21 at 13–14.) Instead,

Plaintiffs argue that the District’s knowledge of Miller’s abuse and failure to

intervene and protect Plaintiffs constituted extreme and outrageous conduct ipso

facto. (Id. at 14.) Although the District raises no other argument in support of its

motion to dismiss Count VII, the Court nevertheless reviews the plausibility of

Plaintiff’s IIED claim.

To state a claim for IIED against the District, Plaintiffs must adequately plead

that the District: (1) engaged in extreme and outrageous conduct; (2) either intended

to inflict severe emotional distress or knew that there was a high probability that

their conduct would do so; and (3) actually caused severe emotional distress. S.J. v.

Perspectives Charter Sch., 685 F. Supp. 2d 847, 859 (N.D. Ill. 2010). To qualify as

outrageous, conduct must be “so extreme as to go beyond all possible bounds of

decency.” Feltmeier v. Feltmeier, 798 N.E.2d 75, 83 (Ill. 2003). And “the more control

a defendant has over the plaintiff, the more likely that defendant’s conduct will be

deemed outrageous.” Wordlow v. Chi. Bd. of Educ., 2018 WL 6171792, at *13 (N.D.

Ill. Nov. 26, 2018).

Plaintiffs allege that Miller’s sexual conduct was extreme and outrageous, the

District knew about it, and, by failing to take any action in response to it, enabled it

to continue. (Compl. ¶¶ 145–47.) If true, Miller’s sexual abuse of minor male students

constitutes extreme and outrageous conduct. And, if true, the District’s knowledge of

the abuse as the employer supervising Miller with “assumed responsibility for the

well-being of minor students,” (see Compl. ¶ 8), and subsequent failure to intervene,

could reasonably be read as a license to Miller to continue. If proven, purposefully

covering up evidence of a minor’s sexual abuse could reasonably constitute extreme

and outrageous conduct likely to cause severe emotional distress. See Brookman ex

rel. A.B. v. Reed-Custer Cmty. Unit, Sch. Dist. 255-U, 2019 WL 4735395, at *5–6 (N.D.

Ill. Sep. 27, 2019). Plaintiffs plead enough facts to raise a right to relief beyond the

speculative level. See Brooks, 578 F.3d at 581. Accordingly, Count VII is not dismissed

as against the District. Per Plaintiffs’ response, Counts I and II are dismissed as

against the District.

2. Willful and Wanton, Negligence, and Derivative Claims (Counts

III, IV, V, VI, VIII, X, XI)

The District argues that, because it owes no duty to protect students from

criminal attacks by others, Plaintiffs failed to plead a duty as required to bring a

willful and wanton or a negligence claim against it. (Dkt. 16 at 9–11.) Plaintiffs

respond that the District’s duty arises out of its “special relationship” with Plaintiffs

and its duty to report Miller’s abuse under the Abused and Neglected Child Reporting

Act, 325 ILCS 5/1 et seq. (Dkt. 21 at 14–18.)

Under the Illinois Abused and Neglected Child Reporting Abuse Act

(“ANCRA”), “school personnel” who have “reasonable cause to believe” that a student

has suffered abuse must notify the Illinois Department of Children and Family

Services. 325 ILCS 5/4. But ANCRA’s mandate to report child abuse does not create

a duty to the abused child or otherwise give rise to a private tort action “unless the

violation also breached a common law duty of care owed to the plaintiff.” Doe-2 v.

McLean Cty. Unit. Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 514 (7th Cir. 2010). To

determine whether the Complaint sufficiently alleges that the District owed Plaintiffs

a duty, the Court must look to Illinois’s common law.

To state a common law claim for willful and wanton misconduct, Plaintiffs

must establish “the same basic elements of a negligence claim, which are the

existence of a duty, breach of that duty, and an injury proximately resulting from the

breach.” Id. In addition to those elements, Plaintiffs must show that the District’s

breach was made with “ ‘conscious disregard for [Plaintiffs’] welfare.’ ” Id. (quoting

Ortega-Piron ex rel. Doe v. Chi. Bd. of Educ., 820 N.E.2d 418, 423 (Ill. 2004)).

Although there is no affirmative duty to protect another from criminal attack by a

third person, see Iseberg v. Gross, 879 N.E.2d 278, 284 (Ill. 2007), Illinois courts have

recognized that some relationship between a public school district and its students

create a common law duty to protect in some cases. See, e.g., Doe-2, 593 F.3d at 514–

15 (collecting cases). A school district with “unique knowledge that one of its teachers

or students poses a particular threat to another student may acquire a duty to

protect.” Id. at 515 (citing Ortega-Piron ex rel. Doe, 820 N.E.2d at 423–24).

Taking Plaintiffs’ allegations as true, the Complaint states facts sufficient to

create a plausible inference that the District possessed a duty toward Plaintiffs.

Plaintiffs allege that the District was on notice of Miller’s conduct and so possessed a

duty to “exercise the utmost care for the welfare and wellbeing of the minor students

at Lake Forest High School.” (Compl. ¶ 126.) This duty included, among other things,

an obligation to adequately supervise Miller, investigate complaints about Miller, and

implement restrictions to Miller’s access to students. (Id. ¶ 127.) As the Court already

addressed, Plaintiffs sufficiently plead that the District possessed knowledge of

Miller’s conduct at all relevant times. (Id. ¶¶ 93, 95, 96, 97.) And if discovery proves

these allegations of knowledge to be true, such “unique knowledge” may give rise to

a duty to protect. See Doe-2, 593 F.3d at 514–15.

Reviewed as a whole, the Complaint adequately pleads that the District was

in a “special relationship” with Plaintiffs that could trigger a common law duty to

protect Plaintiffs as required to bring a willful and wanton claim. See id. at 514–15.

For the same reasons, Plaintiffs also adequately state a claim for negligence against

the District. Accordingly, the motion to dismiss Counts III, IV, V, VI, VIII, X, XI is

denied.

3. Title IX (Count XI)

The District contends that Plaintiffs also fail to state a claim of sex

discrimination under Title IX because Plaintiffs have not shown that the Board had

“actual notice” of Miller’s misconduct towards Plaintiffs specifically. The District also

argues that Plaintiffs failed to show that they were denied any benefits of the Board’s

services because of the misconduct. (Dkt. 16 at 11–12.)

Title IX prohibits sex discrimination by recipients of federal education funding.

20 U.S.C. § 1681(a); Jackson v. ]Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).

A school district may not be held vicariously liable under Title IX for an employee’s

violation of the statute. Doe v. St. Francis Sch. Dist., 694 F.3d 869, 871 (7th Cir. 2012)

(citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285 (1998)). But the

District may be held personally liable under Title IX if, with “authority to institute

corrective measures,” the District had “actual notice of, and [was] deliberately

indifferent to, the teacher’s misconduct.” Doe, 694 F.3d at 871.

To state a claim under Title IX, plaintiffs must plead that: (1) the education

institution received federal funding; (2) the harassment was based on sex; and (3) the

harassment was so pervasive or severe that it altered the conditions of plaintiffs’

education, or deprived plaintiffs of access to educational opportunities or benefits

provided by the school. Doe v. Bd. of Educ. of City of Chi., 611 F. Supp. 3d 516, 527

(N.D. Ill. 2020). These elements are sufficiently alleged by the Complaint. The

District was an educational institution that received federal funding. (Compl. ¶ 162.)

Plaintiffs—who are all male—were sexually abused by Miller based on their sex. (Id.

¶ 165.) Miller’s sexual abuse of Plaintiffs when they were minors deprived them of

access to educational opportunities. (Id. ¶ 168.) And as addressed in previous sections

of this opinion, the Complaint adequately states that the District had “actual notice”

of Miller’s misconduct and authority to take corrective actions.

The District challenges Plaintiffs’ failure to specifically identify how they were

deprived access to educational opportunities. But “courts recognize that harassment

by a teacher inherently harms students and affects their educational experience.” Doe

I v. Bd. of Educ., 364 F. Supp. 3d 849, 861 (N.D. Ill. 2019). Although Plaintiffs will

eventually need to prove this element, “plaintiffs need not allege specific facts

showing precisely how their academic performance was affected” at the motion-to-

dismiss stage. Id. For the foregoing reasons, the motion to dismiss Count XI is

DENIED.

4. Section 1983 and Monell Liability (Counts XII and XIII)

Finally, the District argues that Plaintiffs’ Due Process claim (Count XII) must

be dismissed against it as duplicative of Plaintiffs’ Monell claim. The District also

argues that Plaintiffs’ Monell claim (Count XIII) must be dismissed because Plaintiffs

have failed to allege an underlying cognizable Fourteenth Amendment due process

violation. (Dkt. 16 at 12–14.) Plaintiffs do not object to the dismissal of Count XII

against the District, but contend that the District violated Plaintiffs’ constitutional

rights “by displaying reckless indifference to Plaintiffs by acting under customs,

policies or practices which encouraged or allowed Miller’s sexual abuse of Plaintiffs

to occur.” (Dkt. 21 at 22–24.)

To state a Monell claim against the District, Plaintiffs must plausibly allege

that “an official policy, however expressed . . . caused the constitutional deprivation.”

Glisson v. Indiana Dep’t of Corrs., 849 F.3d 372, 379 (7th Cir. 2017) (en banc). An

“actual constitutional claim” must be established by the face of the complaint. See

Contreras v. City of Chi., 119 F.3d 1286, 1294 (7th Cir. 1997) (disentangling “what

constitutes a constitutional violation and what makes a municipality liable for

constitutional violations”).

Plaintiffs allege that Miller’s sexual abuse violated Plaintiffs’ Fourteenth

Amendment right “to be free of state-occasioned damage to [their] bodily integrity,

including childhood sexual abuse.” (Compl. ¶¶ 176, 191.) According to the Complaint,

the District had policies, practices, and customs in place to withhold and not

investigate allegations of sexual misconduct and not to remove agents and employees

accused of sexual misconduct. (Id. ¶¶ 193–95.) And because of such policies, practices,

and customs, Plaintiffs’ rights were violated. (Id. ¶¶ 196–97.)

It is well established that “a state ordinarily has no constitutional duty to

protect private citizens from doing harm to each other.” Waubanascum v. Shawano

Cty., 416 F.3d 658, 665 (7th Cir. 2005) (citing DeShaney v. Winnebago Cty. Dep’t of

Soc. Servs., 489 U.S. 189, 109 (1989)). Axiomatically, “a state’s failure to protect an

individual from private injury does not violate that individual’s due process rights.”

Id. Two exceptions to this general rule have nonetheless been recognized by the

Seventh Circuit: first, when the state has established a “special relationship” with an

individual, and second, where the state “affirmatively places a particular individual

in a position of danger the individual would not have otherwise face.” Id. (citing

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

To qualify for the “special relationship” exception, “the state must have custody

over” the individual. Id. at 665. Such “custody” arises only where the state constrains

the individual’s “freedom to act on his own behalf.” DeShaney, 489 U.S. at 198–201.

Such custody does not generally exist between students and the state in the Seventh

Circuit. In J.O. v. Alton Community Unit School District 11, the Seventh Circuit

expressly rejected the argument that students are persons with whom the state has

a special relationship. 909 F.2d 267, 272 (7th Cir. 1990) (“[T]he government, acting

through local school administrations, has not rendered its schoolchildren so helpless

that an affirmative constitutional duty to protect arises.”). In so holding, the Seventh

Circuit distinguished its ruling from an earlier holding of the Third Circuit, Stoneking

v. Bradford Area School District, 882 F.2d 720 (3d Cir. 1989), that held school officials

could be held liable for adopting policies that were deliberately indifferent to the

constitutional right of students to bodily integrity. J.O., 909 F.2d at 271–72. And, as

the J.O. court itself suggested, the Stoneking theory of liability remains viable. T.E.

v. Grindle, 599 F.3d 583, 590 (7th Cir. 2010) (collecting cases applying Stoneking).

As in Stoneking, Plaintiffs are not relying on a theory of “mere failure of

supervisory officials to act” in violation of the Due Process Clause. See Stoneking, 882

F.2d at 730. Rather, Plaintiffs allege that the District is liable for concealing reports

of abuse and creating an environment that allowed Miller’s abuse to flourish.

Plaintiffs specifically accuse the District of maintaining policies and practices not to

investigate allegations of sexual misconduct, not to remove employees accused of

sexual misconduct from students, and to withhold information about teacher sexual

abuse from parents and students. Given the prohibition against respondeat superior

liability in section 1983 suits, Plaintiffs do not argue that the District is liable merely

as Miller’s employer. See Monell v. Department of Social Services of City of New York,

438 U.S. 658, 691 (1978). Instead, Plaintiffs argue that the District had a “special

relationship” with its students, imposing an affirmative duty to provide for their

safety and to prevent the child abuse that occurred here. (Compl. ¶¶ 135–42.)

Reviewed as a whole, the Complaint satisfies the minimum pleading

requirements to state a Monell claim against the District. See McCormick v. City of

Chi., 230 F.3d 319, 323 (7th Cir. 2000). Indeed, the Seventh Circuit allows a

“conclusory” Monell claim to survive a motion to dismiss when it is “sufficient to put

the [local governing body] on notice of [plaintiff's] claim against it” and if the plaintiff

gives the defendant “notice of the crux of the plaintiff's charges” and does not “[leave]

out facts necessary to give the defendants a complete understanding of the claims

made against them.” Jd. at 325. Although Plaintiffs have a long way to go to prove

their Monell claim, Plaintiffs have adequately met the notice pleading requirements

to survive a motion to dismiss. For the foregoing reasons, the motion to dismiss Count

XIII is denied. Per Plaintiffs’ response, Count XII is dismissed as against the District.

IV. CONCLUSION

Defendants’ motions to dismiss are largely denied. Per the parties’ agreement,

Counts I, II, and XII are dismissed as against the District only.

SO ORDERED in No. 21-cv-02755.

Date: September 30, 2023 ( Bec. Uae.

JOHN F. KNESS

United States District Judge

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