D. S. v. East Porter County School Corp , 799 F.3d 793 ( 2015 )

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