D. S. v. East Porter County School Corp

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3549

D.S., b/n/f GEORGE M. STAHL and

DEBBIE LYNN STAHL, et al.,

Plaintiffs-Appellants,

v.

EAST PORTER COUNTY SCHOOL

CORPORATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:11-cv-00431-PRC — Paul R. Cherry, Magistrate Judge.

ARGUED NOVEMBER 14, 2014 — DECIDED AUGUST 24, 2015

Before BAUER, FLAUM, and TINDER, Circuit Judges.

BAUER, Circuit Judge. Plaintiff-appellants, D.S. and her

parents, Debbie Lynn Stahl and George M. Stahl, brought suit

under 42 U.S.C. § 1983 against defendant-appellees, East Porter

County School Corporation and Morgan Township Mid-

dle/High School (collectively “East Porter”), and Porter

Township School Corporation and Boone Grove Middle School

2 No. 13-3549

(collectively “PTSC”), alleging various constitutional and state-

law claims. East Porter and PTSC filed separate motions for

summary judgment, which the district court granted in full.

D.S. and the Stahls appeal the district court’s grants of sum-

mary judgment as to their constitutional claims only. We

affirm.

I. BACKGROUND

D.S., a minor, was enrolled as a student in the East Porter

County School Corporation, a school system located in Porter

County, Indiana, from kindergarten through eighth grade.

While there, D.S. asserts that she was the victim of bullying at

the hands of her fellow students beginning as early as third

grade. D.S. claims that the bullying became more physical and

vicious at Morgan Township Middle/High School beginning in

sixth grade, when several girls threw basketballs at her head,

tripped her, and ignored her during basketball practice. The

bullying continued into seventh grade, when someone wrote

on her school planner, “I hope you die,” and throughout

eighth grade, when students continued to pick on her in class,

often moving her desk to a corner of the social studies class-

room or kicking it.

After many of these incidents occurred, D.S. complained to

school officials. However, apart from witnessing the guidance

counselor talk to one of the alleged bullies about her behavior

toward D.S. and seeing the principal call one of the alleged

bullies to her office, D.S. does not know if school officials took

any action in response to the complaints. D.S. also alleges that

some of her teachers and coaches at Morgan Township

Middle/High School expressly participated or were complicit

No. 13-3549 3

in the bullying. Specifically, D.S. asserts that her sixth grade

gym teacher forced her to participate in gym class even though

three of her toes were broken; her sixth and seventh grade

basketball coaches gave her little playing time and told her that

she was not good at basketball; her seventh grade volleyball

coach gave her little playing time and accused her of lying

about the number of laps that she ran in practice; and her social

studies teacher laughed when her desk was moved by other

classmates.

D.S. did not return to Morgan Township Middle/High

School after the events of February 9, 2011. On that day, D.S.

had stayed after school with the rest of the basketball team.

When the girls were told to get their uniforms from the

laundry room, D.S. discovered that one of the girls had

switched D.S.’s shorts for a larger size. The girls started

taunting D.S. and calling her names, such as “fat,” and fol-

lowed her when she tried to get away from the name calling.

D.S. called her mother, Debbie, who came to the school to pick

up D.S. and, while there, yelled at the alleged bullies, pointing

her finger at one of them. Shortly thereafter, D.S.’s father,

George, arrived and confronted the principal about the

bullying situation. He asked the principal whether she was

going to talk to the alleged bullies; in response, the principal

said that she was going to speak to Debbie about her behavior

when she picked up D.S. from the school that afternoon.

George asked the principal for an explanation and, when she

didn’t respond, demanded to know whether his child was

being treated poorly because of money. George then left the

school but returned to pick up D.S.’s grandfather, who was

already waiting in the gym for the basketball game. Upon

4 No. 13-3549

exiting the gym, George and his father confronted several of

the alleged bullies. As the two men walked away, the girls

started yelling that George and his father had attacked them.

This prompted the principal to summon both men into her

office and call the police. No students came forward to com-

plain further, so the police did not issue a citation to George or

his father.

The next day, the school superintendent, Roy Gardin,

contacted the Stahls to set up a meeting with them to discuss

the events of the previous day. Gardin explained that Debbie

and George would be banned from East Porter property until

they were able to meet with him; however, the Stahls never

contacted Gardin to set up a meeting. Consequently, George

and Debbie were banned from school property for one year.

D.S., who was not subject to the ban, voluntarily chose not to

return to Morgan Township Middle/High School.

Subsequently, the Stahls contacted Boone Grove Middle

School, located within a neighboring school district, the Porter

Township School Corporation, to inquire as to whether they

could enroll their daughter, who resided out of district, in the

school to complete her eighth grade year. George testified that

he was advised that the school had “open enrollment,” so the

Stahls went to Boone Grove the next day to enroll D.S. and

take a tour of the school. After the tour concluded, George told

the principal of Boone Grove that he and Debbie had been

banned for a year from East Porter property. The principal

responded that he would have to check with the superinten-

dent to see whether there was any issue with enrollment prior

to finalizing D.S.’s transfer. That evening, the principal called

the Stahls and informed them that D.S. would not be permitted

No. 13-3549 5

to enroll, as they were closing enrollment. Nevertheless, the

following Monday, George asked a neighbor to come with him

to Boone Grove and inquire about enrollment. George testified

that the neighbor was told by school personnel that enrollment

was open.

D.S. and the Stahls filed suit against East Porter and PTSC

pursuant to 18 U.S.C. § 1983, alleging equal protection and due

process violations, as well as municipal liability pursuant to

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The Stahls

also asserted several Indiana state-law claims, including

intentional infliction of emotional distress, defamation, and

false light invasion of privacy. Both East Porter and PTSC filed

motions for summary judgment; D.S. and the Stahls filed a

response to East Porter’s motion but failed to file a response to

PTSC’s motion. The district court granted summary judgment

in favor of East Porter and PTSC as to all of D.S. and the Stahls’

constitutional claims and declined to exercise supplemental

jurisdiction over their state-law claims. This appeal followed.

II. ANALYSIS

A. D.S.’s Due Process Claim Against East Porter

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff

must allege that he or she was deprived of a right secured by

the Constitution or the laws of the United States, and that this

deprivation occurred at the hands of a person or persons acting

under the color of state law. Buchanan-Moore v. Cty. of Milwau-

kee, 570 F.3d 824, 827 (7th Cir. 2009). Although the Due Process

Clause of the Fourteenth Amendment prevents the state from

infringing on an individual’s right to life, liberty, or property,

it does not “impose an affirmative obligation on the [s]tate to

6 No. 13-3549

ensure that those interests do not come to harm through other

means.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489

U.S. 189, 195 (1989). The Due Process Clause limits the state’s

power to act, but does not act “as a guarantee of certain

minimal levels of safety and security.” Id. at 195. Accordingly,

the Clause generally does not impose upon the state a duty to

protect individuals from harm by private actors. Id. at 197.

However, two exceptions have grown out of this general

principle. The first obligates the state to protect individuals

with whom it has a “special relationship,” such as a custodial

relationship that cuts off alternative avenues of aid. Monfils v.

Taylor, 165 F.3d 511, 516 (7th Cir. 1998). The other is the “state-

created danger exception,” which applies when a state actor’s

conduct “creates, or substantially contributes to the creation of,

a danger or renders citizens more vulnerable to a danger that

they otherwise would have been.” Reed v. Gardner, 986 F.2d

1122, 1126 (7th Cir. 1993).

D.S. does not argue that the special relationship exception

is applicable to this case, and relies instead on the state-created

danger doctrine. To prevail under a state-created danger

theory, D.S. must show three things: (1) that the state—here,

East Porter—by its affirmative acts, created or increased a

danger that D.S. faced; (2) that East Porter’s failure to protect

D.S. from danger was the proximate cause of her injury; and

(3) that East Porter’s failure to protect D.S. shocks the con-

science. See King ex rel. King v. East St. Louis Sch. Dist. 189, 496

F.3d 812, 818 (7th Cir. 2007). D.S. alleges that school officials

either created the risk that D.S. would be bullied by her

teammates and classmates or rendered D.S. more vulnerable

to the risk of being bullied. The district court held that D.S. did

No. 13-3549 7

not offer sufficient evidence to create a genuine issue of

material fact under the state-created danger standard. We

agree.

D.S. has not shown that her teachers and coaches instigated,

created, or increased the bullying that she experienced at

school. Although D.S. argues that school officials’ inaction or

ineffective responses to her reports of bullying increased the

danger that she faced, the record does not support this conten-

tion. D.S. testified that she does not know whether the princi-

pal or her guidance counselor took any steps to discipline the

bullies apart from the two instances where she saw each of

them talk to an alleged bully. She appears to assume that,

because she didn’t see school officials take more action, none

occurred. Putting aside the fact that school officials do not have

an affirmative duty to protect students, J.O. v. Alton Cmty. Unit

Sch. Dist. 11, 909 F.2d 267, 272–73 (7th Cir. 1990), this assump-

tion is not sufficient to raise a genuine issue of material fact.1

D.S. also alleges that school personnel participated in the

bullying incidents. To advance this claim, D.S. cites to instances

in which one of her teachers laughed when students moved

D.S.’s desk in class, her gym teacher forced her to participate

in gym class while injured because she didn’t have a doctor’s

note, and where she felt that her athletic abilities were not

appreciated by her coaches. We agree with the district court

1

Paradoxically, D.S. also contends that school officials, in talking to the

alleged bullies on the two occasions that D.S. witnessed, made her more

vulnerable to attacks by other students. We will not address this theory

because D.S. waived this argument by failing to raise it below. See Nichols

v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014).

8 No. 13-3549

that such actions do not satisfy the first element of the state-

created danger exception and, even if they did, do not rise to

the requisite level of egregiousness to satisfy the third element.

See Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (holding

that state action that shocks the conscience is conduct that may

be deemed “arbitrary in the constitutional sense” and that only

“the most egregious official conduct” will satisfy this inquiry);

Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654–55 (7th

Cir. 2011); King ex rel. King, 496 F.3d at 818–19. Thus, as D.S.

has not shown that there is a genuine issue of material fact

under the state-created danger standard, she cannot prevail on

her § 1983 due process claim against East Porter.

B. D.S.’s Equal Protection Claim Against PTSC

D.S.’s § 1983 equal protection claim against PTSC similarly

fails. The Equal Protection Clause grants to all Americans the

“right to be free from invidious discrimination in statutory

classifications and other governmental activity.” Harris v.

McRae, 448 U.S. 297, 322 (1980). As with her due process claim

against East Porter, D.S. can seek relief pursuant to 42 U.S.C.

§ 1983, if she can show that she was deprived of a right secured

by the Constitution or federal law, by a person acting under

color of state law. Buchanan-Moore, 570 F.3d at 827. In order to

establish liability under § 1983, D.S. must show that PTSC

acted with a nefarious discriminatory purpose and discrimi-

nated against her based on her membership in a definable

class. Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996).

Since D.S. does not allege that she is member of a protected

class, she has elected to proceed under a “class-of-one” theory.

To establish a successful class-of-one equal protection claim,

No. 13-3549 9

D.S. must show that she was “intentionally treated differently

from others similarly situated and that there is no rational basis

for the difference in treatment.” Vill. of Willowbrook v. Olech, 528

U.S. 562, 564 (2000). Further, to be “similarly situated,” she and

her comparators must be “prima facie identical in all relevant

respects or directly comparable … in all material respects.”

United States v. Moore, 543 F.3d 891, 896 (7th Cir. 2008) (quoting

Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677,

680 (7th Cir. 2005)) (internal quotation marks excluded).

Although the question of whether individuals are similarly

situated is a question of fact for the jury to decide, “a court may

properly grant summary judgment where it is clear that no

reasonable jury could find that the similarly situated require-

ment has been met.” McDonald v. Vill. of Winnetka, 371 F.3d 992,

1002 (7th Cir. 2004).

We agree with the district court that summary judgment in

favor of PTSC is appropriate in this case. At the onset we note

that, in the proceedings below, D.S. failed to respond to PTSC’s

motion for summary judgment and did not file a “Statement of

Genuine Issues” pursuant to Local Rule 56-1(b)(2). Although

her failure to respond does not mean PTSC is automatically

entitled to summary judgment in its favor, D.S. has waived her

right to raise any argument on appeal that she did not raise in

the district court. Domka v. Portage Cty., Wis., 523 F.3d 776, 783

(7th Cir. 2008) (noting that “[i]t is a well-settled rule that a

party opposing a summary judgment motion must inform the

trial judge of the reasons, legal or factual, why summary

judgment should not be entered. If it does not do so, and loses

the motion, it cannot raise such reasons on appeal” (internal

quotations and citations excluded)). Our analysis is confined to

10 No. 13-3549

the existing record, not the new facts that D.S. attempts to put

forward on appeal.

Viewed in the light most favorable to the non-moving

party, D.S. has not put forth any specific facts showing that

there is a genuine issue for trial under the class-of-one equal

protection standard. D.S. points to the fact that her father,

George, overheard school officials at Boone Grove tell his

neighbor that the school had open enrollment, even though the

principal of Boone Grove had called George the night before to

inform him that enrollment was closed. However, the Stahls’

neighbor never actually attempted to enroll his child at Boone

Grove, as George Stahl had done. In fact, George testified that

he did not know if any out-of-district students were admitted

to Boone Grove Middle School after D.S.’s transfer application

was rejected. Simply put, D.S. has failed to identify any

similarly situated individuals who were treated differently by

PTSC with regard to her attempt to transfer schools. Accord-

ingly, her § 1983 equal protection claim against PTSC must fail.

C. D.S.’s Monell Claims Against East Porter and PTSC

D.S. argues on appeal that there are genuine issues of

material fact that preclude summary judgment on her munici-

pal liability claims against both East Porter and PTSC. “[A]

local government may not be sued under § 1983 for an injury

inflicted solely by its employees or agents” unless the “execu-

tion of a government’s policy or custom … inflicts the injury.”

Monell, 436 U.S. at 694. However, a municipality cannot be

found liable under Monell when there is no underlying

constitutional violation by a municipal employee. Sallenger v.

City of Springfield, Ill., 630 F.3d 499, 504 (7th Cir. 2010). Since

No. 13-3549 11

D.S. cannot show a violation of her constitutional rights under

either the Due Process or Equal Protection clauses of the

Fourteenth Amendment, the defendants cannot be held liable

under Monell.

AFFIRMED