United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
axiomatic that most high school basketball players want more
playing time, and most parents believe their child deserves
more. But disputes over playing time don't usually make
their way to federal court. Not so here. Derrick Wesley, Jr.
is an African-American who was on the varsity basketball team
at Riley High School. Defendant South Bend Community School
Corporation (“SBCSC”) employed his former coach,
Mark Johnson, who is Caucasian. Wesley's mother, aunt,
and father are self-proclaimed activists against racial
injustices at SBCSC. According to Wesley, Johnson retaliated
against him because of the expressive conduct of his family
members. This occurred after Wesley's mom beat out
Johnson's friend for a seat on the school board, and it
involved Coach Johnson treating him differently than other
players, unfairly criticizing him, ostracizing him, giving
him less playing time in games, and not recognizing him at
the 2017 Spring Banquet.
second amended complaint contains three federal claims all
brought under section 1983: Count I is an individual claim
against Mark Johnson for retaliation in violation of the
First Amendment; Count II is a claim against SBCSC for
municipal liability for a custom or practice leading to a
violation of the First Amendment; and Count III is a claim
against SBCSC for failure to train. Both SBCSC and Johnson
have filed motions to dismiss all claims against them on the
grounds that the second amended complaint fails to state a
claim upon which relief can be granted. [DE 39, 42.] For the
reasons detailed below, both motions are GRANTED.
quirk of fate, the facts surrounding this controversy are on
my desk for the second time. A couple of years ago, Mark
Johnson, the defendant in this case, sued SBCSC in Cause No.
3:17-cv-825 (N.D. Ind. filed Nov. 2, 2017), and that case
remains pending before me on claims for race discrimination
and retaliation. Most of the same cast of characters in that
case are involved in this one.
first sketch out the facts as they are alleged in the second
amended complaint, which I accept as true for present
purposes. Johnson was the boys varsity basketball coach at
South Bend Riley High School. [Sec. Am. Compl., DE 33, ¶
2.] Wesley was a high school senior at that school in the
fall of 2016. [Id. ¶¶ 5, 6.] That same
fall, Wesley's mother, Leslie Wesley, announced she would
be running for the school board as a direct opponent of
Johnson's friend, William Sniadecki. [Id. ¶
7.] Coach Johnson was unimpressed by her candidacy; he even
predicted to Leslie Wesley's face that she would not beat
his friend, Sniadecki. [Id. ¶ 8.] But alas, she
did win and was seated as a member of the SBCSC school board.
[Id. ¶ 28.]
to the complaint, it is pretty clear that Johnson and the
Wesley family did not see eye to eye, and matters escalated
pretty quickly. For example, Wesley's father, Derrick
Wesley, Sr., publicly criticized Coach Johnson. [Id.
¶ 9.] It seems that Mr. Wesley disagreed with the
defense that Johnson was employing. It is unclear from the
complaint whether Johnson was an adherent to a sticky Bobby
Knight style man-toman defense or he preferred a matchup
zone. In either event, Mr. Wesley wasn't too impressed
with Johnson's coaching and he went public with it.
wasn't just the style of defense that was being
criticized. Race also was a factor. Indeed, Derrick
Wesley's aunt (Leslie Wesley's sister, Charan
Richards, who also happened to work at SBCSC), criticized how
Johnson coached African-American athletes. [Id.
¶ 10.] And mom, Leslie Wesley, was vocal on the issue of
discipline and alleged disparate treatment African-American
students received at SBCSC. [Id. ¶¶ 13,
before tryouts for the team, Johnson told other school
personnel that he was planning to cut Wesley from the
basketball team his senior year. [Id. ¶ 21.]
After talking with the Principal, however, Johnson changed
course and decided to let Wesley on the team. [Id.
¶¶22-25.] But by January 14, 2017, Wesley's mom
became increasingly concerned about the treatment of her son,
and she e-mailed the Principal and other administrative
staff. [Id. ¶ 33.] According to the Wesleys, no
response or investigation was undertaken. [Id.
claims that Johnson treated him in ways that, if you believe
the allegations in the complaint, are pretty shameful things
to do to a high school kid in retaliation for actions of the
kid's parents. For example, Johnson accused Wesley of
being late to practice when he was not, accused him of
messing up on drills when he did not, and punished him for
conduct that he let slide in other players. [Id. at
¶ 29.] Additionally, Wesley was given almost no playing
time during the season. [Id. ¶ 31.] Even on
senior night, although Wesley was allowed to play early in
the game, Johnson benched him after only two minutes.
[Id.] The topper is that Johnson did not even allow
Wesley to be introduced as a senior at the final game, nor
did he recognize Wesley at the 2017 Spring Banquet contrary
to long-standing tradition. [Id. ¶¶ 31,
further alleges that Johnson continued his acts of
retaliation even after the season was over by releasing
e-mails to the South Bend Tribune and other media outlets
which included confidential information about Plaintiff.
[Id. ¶ 37.]
case was originally removed from state court, and the
complaint is on its third iteration. The theories outlined in
the original complaint filed in state court have largely been
abandoned. [DE 5.] Wesley filed a first amended complaint on
April 11, 2019. [DE 15.] Both Johnson and SBCSC interpreted
the first amended complaint as an attempt to assert
Fourteenth Amendment claims, and both defendants filed
motions to dismiss arguing Wesley did not state a claim
because he did not allege defendants interfered directly and
substantially with Wesley's exercise of a fundamental
right in a manner that was shocking to the conscience. [DE
15, 18, 21.] Instead of responding to this argument, Wesley
filed a motion for leave to file a second amended complaint,
which was granted. [DE 27, 32.] An amended complaint becomes
controlling once it is filed because the prior pleading is
withdrawn by operation of law. Johnson v. Dossey,
515 F.3d 778, 780 (7th Cir. 2008); see also Duda v. Bd.
of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133
F.3d 1054, 1057 (7th Cir. 1998).
second amended complaint makes very clear that Wesley is
trying to abandon any reliance on the Fourteenth Amendment.
Instead, all of his claims are now brought under the First
Amendment. In Count I, Wesley contends that Johnson
intentionally retaliated against him for the political speech
of his family members in violation of section 1983. [Sec. Am.
Compl. at 14-15.] Count II raises a Monell claim for
SBCSC's alleged unconstitutional custom and practice that
led to a First Amendment violation. [Id. at 16-17.]
And Count III is also a Monell claim based on
SBCSC's alleged failure to properly train ...