By: Derek Hawkins//September 1, 2015//
Civil
7th Circuit Court of Appeals
Officials: BAUER, FLAUM, and TINDER, Circuit Judges
Due Process
No.13-3549 D.S. v. East Porter County School Corp.
Parents suit against school falls short for failure to prove up allegations.
“D.S. has not shownthat 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 contention. D.S. testified that she does not know whether the principal 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 assumption 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 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.”
Affirmed