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Wesley v. South Bend Community School Corp.

United States District Court, N.D. Indiana, South Bend Division

October 29, 2019

DERRICK WESLEY, JR., Plaintiff,
v.
SOUTH BEND COMMUNITY SCHOOL CORPORATION and MARK JOHNSON, in his official and individual capacity, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         It is 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.

         The 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.

         Factual Background

         In a 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.

         I'll 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.]

         According 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.

         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, 15-17.]

         Even 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. ¶ 34.]

         Wesley 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, 35.]

         Wesley 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.]

         This 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).

         The 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 ...


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