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Bonchek v. Nicolet Unified School District

United States District Court, E.D. Wisconsin

December 23, 2019

MARK S. BONCHEK, Plaintiff,


          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         The plaintiff in this case, Mark S. Bonchek (“Bonchek”), was sexually abused by a teacher at Nicolet High School (“Nicolet”) while he was a student there in the 1980s. He has suffered from psychological trauma for most of his adult life, stemming both from the abuse and from an alleged scheme by the school and its officials to cover up for the teacher who abused him. In this lawsuit, Bonchek brings claims against the abusive teacher, David R. Johnson (“Johnson”), who is deceased, Nicolet, the Nicolet Unified School District (the “District”), several people who were members of the Nicolet School Board (the “Board”) during the 1980s, and John Doe employees of Nicolet who knew or should have known about Johnson's abuse of young boys.

         On August 12, 2019, all defendants who had, at that time, appeared in the case-Nicolet, the District, and four former Board members, Orren J. Bradley (“Bradley”), Gerald T. Haig (“Haig”), William R. Heiser (“Heiser”), and Robert Strauss (“Strauss”)-filed a motion to dismiss Bonchek's amended complaint. (Docket #18). That motion is fully briefed and ripe for adjudication. For the reasons explained below, it will be granted. Two claims against Johnson's estate will be dismissed without prejudice for failure to serve, and two contract-based claims will be dismissed without prejudice for failure to plead compliance with Wisconsin's notice of claim statute. All other claims will be dismissed with prejudice.


         The defendants seek dismissal of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a viable claim for relief. Fed.R.Civ.P. 12(b)(6). To state a viable claim, a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).

         In reviewing Bonchek's amended complaint, the Court is required to “accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in [the plaintiff's] favor[.]” Kubiak v. City of Chi., 810 F.3d 476, 480-81 (7th Cir. 2016) (citation omitted). Ultimately, dismissal is only appropriate “if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to the relief requested.” Enger v. Chi. Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016).


         The following factual allegations are taken from Bonchek's amended complaint. (Docket #4). In or around 1958, Nicolet hired Johnson as a mathematics teacher. He eventually became the chairman of the school's mathematics department, and he also oversaw two school clubs, the “Magic Company” and the “Hosts.” The school often publicized positive news about Johnson to enhance Johnson's and the school's reputations. Johnson mentored high-achieving students, and he was known as a teacher whose recommendation would positively influence a student's likelihood of being admitted to premier universities.

         Bonchek attended Nicolet starting in the late 1970s. He was a high-achieving student, and he was a member of both the Magic Company and the Hosts. Bonchek alleges that during his participation in those groups, Johnson began grooming him for sexual exploitation. In the fall of 1980, during his junior year at Nicolet, Johnson approached Bonchek and asked him to participate in a “research project” involving the “physiological response” of certain “athletic” activities. Id. at 21. Bonchek says that he “desperately wanted to attend an Ivy League university, ” and Johnson “threatened, implicitly and/or explicitly, to adjust his recommendation based on Bonchek's participation in the ‘research project.'” Id. Bonchek succumbed to the pressure and agreed to assist Johnson with the project. In truth, Johnson was manipulating and coercing Bonchek to participate in abusive sexual encounters.

         The abuse occurred on weekends at the school. Johnson had Bonchek dress in gym shorts, which he pinned up above Bonchek's hips. To maintain the pretense of research, Johnson kept a stopwatch and a journal to “record the ‘data' arising from the ‘response' of the ‘physiological statistical analysis.'” Id. at 22. Johnson instructed Bonchek to perform certain “exercises” on Johnson, which quickly became sexual in nature and were designed to create sexual arousal in Johnson. Id. These sessions continued for months, throughout Bonchek's junior year. Finally, sometime in 1981, Johnson provided Bonchek with a glowing letter of recommendation. Johnson's threats lost their power over Bonchek, he “became freed of the immediate coercion, ” and the abuse stopped. Id. at 23.

         During the time Bonchek was being abused, rumors of Johnson's behavior were commonplace among Nicolet students. Bonchek frequently had to play along while others wondered aloud “who Johnson was bringing up to his cabin” that year. Id. Bonchek alleges that he was terrified that others would find out what was happening, and the psychological abuse from maintaining his secret was as traumatic as the physical abuse perpetrated by Johnson. In an attempt to overcome his feelings of self-loathing and worthlessness, Bonchek threw himself back into his studies. He graduated from Nicolet as the class valedictorian in 1982.

         In 2016, more than thirty years later, Bonchek notified Nicolet about the abuse that occurred when he was in high school. The District conducted an investigation, in which Bonchek voluntarily participated on the condition that his identity be kept confidential. The investigation revealed that, in the summer of 1983, after Johnson's abuse of Bonchek had ended and after Bonchek had graduated from Nicolet, a different student and his parents reported sexual abuse by Johnson to a staff member. The District claims to have notified law enforcement back in 1983 when it learned of Johnson's alleged abuse, but no record of that report exists.

         On or around July 13, 1983, Nicolet officials held a closed meeting with Johnson and confronted him about the 1983 report of sexual abuse. Nicolet “agreed to continue [Johnson's] employment under certain conditions.” Id. at 25. No document outlining the “conditions” of Johnson's continued employment exists in Nicolet's personnel files or elsewhere in the school's records. Bonchek alleges that after the closed meeting, there was a “fraudulent concealment and cover-up of the crimes of Johnson . . . by [Nicolet].” Id. This cover-up involved the school publicly touting Johnson's accomplishments and the accomplishments of school administrators who should have spoken up about the abuse, without publicly disclosing that Johnson had been accused of sexual abuse. Bonchek cites as examples a number of newspaper articles that feature Johnson or Nicolet personnel, the latest of which was published in 1990.

         During the District's 2016 investigation, Bonchek and the District entered into a non-disclosure agreement (“NDA”) to protect Bonchek's identity from public disclosure, and then executed an extension of that agreement in 2017. Bonchek alleges that the defendants “breached the NDA, failed to timely comply with the public records notifications and distributed and disseminated sufficient information regarding [Bonchek] in order to enable member(s) of the media to identify Bonchek as one of the victims of Johnson, creating further trauma in the form of fear, betrayal, and shame.” Id. at 30.

         As a result of the abuse, the cover-up, and the public disclosure of his identity as one of Johnson's victims, Bonchek alleges to have suffered from post-traumatic stress disorder and other emotional and physical injuries. On or about March 28, 2018, just days after Nicolet released the results of its investigation into Johnson's sexual abuse of Nicolet students, Johnson committed suicide. His estate is named as a defendant in this litigation, but it has not been served.

         4. ANALYSIS

         Bonchek has alleged nineteen separate federal and state law claims against the defendants.[1] Counts One and Two are claims under 42 U.S.C. § 1983 for violation of Bonchek's Fourteenth Amendment due process and equal protection rights, respectively. These counts are alleged against Johnson, Nicolet, the District, and the John Does. Count Three is a Monell claim under Section 1983 for failure to appropriately hire, train, and supervise Johnson, and is alleged against Nicolet, the District, and the John Does. Count Four is a civil conspiracy claim under 42 U.S.C. § 1985 alleged against Nicolet, the District, and the John Does.

         The remaining counts allege violations of state law. Counts Five, Six, Seven, and Eight are claims for negligence in Johnson's hiring, retention, and supervision, and negligent failure to warn, alleged against Nicolet, the District, and the John Does. Counts Nine, Ten, Eleven, and Twelve are gross negligence versions of the same negligence claims. Counts Thirteen and Fourteen are claims for intentional and negligent infliction of emotional distress alleged against all defendants. Count Fifteen is a breach of contract claim and Court Sixteen is a claim for breach of the implied covenant of good faith and fair dealing, both alleged against Nicolet, the District, and the John Does. Count Seventeen alleges negligent misrepresentation, Count Eighteen alleges fraud and deceit, and Count Nineteen alleges civil conspiracy; these counts are leveled against all of the defendants.

         A threshold issue in this case is the age of the conduct underlying most of Bonchek's claims. The sexual abuse he recounts in his amended complaint occurred nearly forty years ago, as did the alleged cover-up which followed another student's revelation of that student's abuse experience. The defendants argue that all of Bonchek's claims, apart from his contract-related claims in Counts Fifteen and Sixteen, are barred by the applicable statutes of limitation. The defendants also contend that the state law claims must be dismissed for Bonchek's failure to comply with Wisconsin's notice of claim statute, which applies to lawsuits against public entities and their employees.

         But the defendants also argue that Bonchek has failed to state viable claims with respect to several counts of his amended complaint because his allegations do not satisfy the elements of those claims. Indeed, many of Bonchek's claims can fairly be described as an attempt to fit square pegs into round holes. Therefore, the Court finds it most prudent to first address the defendants' challenges to the sufficiency of Bonchek's allegations, as that exercise will help the Court (and the reader) understand the contours of Bonchek's claims. The Court will then address the defendants' other arguments for dismissal, including timeliness and the satisfaction of statutory notification requirements.

         4.1 Failure to State a Claim

         The defendants argue that Bonchek has failed to state a claim against them for substantive due process (Count One), equal protection (Count Two), failure to train (Count Three), Section 1985 conspiracy (Count Four), gross negligence in hiring (Count Nine), gross negligence in retention (Count Ten), gross negligence in supervision (Count Eleven), gross negligence in failure to warn (Count Twelve), negligent misrepresentation (Count Seventeen), and fraud and deceit (Count Eighteen). The Court will address these claims in turn below, grouping them by type as appropriate.

         4.1.1 Substantive Due Process and Equal Protection (Counts One and Two) and Monell (Count Three)

         In his first two causes of action, brought pursuant to 42 U.S.C. § 1983, Bonchek alleges that Johnson “violated [his] constitutional right to bodily integrity” under the due process clause (Count One) and the equal protection clause (Count Two) of the Fourteenth Amendment. The Nicolet defendants are also liable for each of these violations, Bonchek alleges, because they knew about Johnson's predatory history and failed to protect students from his abuse.

         No party is contesting Bonchek's allegation that Johnson violated his Fourteenth Amendment rights by sexually abusing him. Johnson's estate has not been served, so it is not a party to this action and therefore is not in a position to defend itself against those claims. The moving defendants also do not contest that Bonchek has properly alleged constitutional claims against Johnson. This is with good reason, as it is clear from the case law that a student who alleges he was sexually abused by a public-school official acting under the color of state law has stated a claim under the Fourteenth Amendment. See Locke v. Hassig, 788 F.3d 662, 667 (7th Cir. 2015) (sexual abuse by a state actor under color of state law violates the equal protection clause); Wudtke v. Davel, 128 F.3d 1057, 1062-64 (7th Cir. 1997) (superintendent's alleged sexual assault of teacher stated substantive due process claim); Sandra v. Sperlik, 639 F.Supp.2d 912, 921 (N.D. Ill. 2009) (“It goes without saying that the sexual molestation of a student violates that student's substantive due process rights.”). Whether Bonchek's constitutional claims against Johnson were timely filed is another matter, but that issue is also not currently before the Court.

         The movant defendants argue, instead, that they cannot be held liable for Johnson's violations simply because he was an employee of Nicolet when he molested Bonchek. Neither municipal entities, like Nicolet and the District, nor individuals with supervisory authority over a municipal employee, like the Board members, can be held liable for an employee's unconstitutional conduct on a respondeat superior theory. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (municipalities); Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001) (supervisors).

         There are two ways the movant defendants could be held accountable for Bonchek's constitutional injury. First, the Board members who have been sued in their individual capacities could be held liable if they were personally involved in the deprivation of Bonchek's rights.[2] In the context of a Section 1983 claim, a person in a supervisory role can be liable for a subordinate's unconstitutional conduct if he, “with knowledge of the subordinate's conduct, approves of the conduct and the basis for it.” Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997) (citations omitted). “[S]upervisors who are merely negligent in failing to detect and prevent subordinates' misconduct are not liable. . . . The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference.” Jones v. City of Chi., 856 F.2d 985, 992-93 (7th Cir. 1988) (citations omitted).

         The allegations of Bonchek's amended complaint do not support this theory of liability. He has not alleged that any of the individual defendants knew about Johnson's abusive behavior before or during the time Johnson abused Bonchek. Although Bonchek alleges that rumors about Johnson's behavior were prevalent among students, he does not allege that the defendants were aware of the rumors, or that they were aware that any such rumor had a basis in truth with respect to Bonchek. Bonchek bases his claims on the defendants having been informed of Johnson's abusive behavior in 1983 when another student came forward. This occurred after Bonchek had already suffered a constitutional violation at Johnson's hands, and after Bonchek had left Nicolet. The individual defendants cannot be held liable for condoning something they knew nothing about and had no reason to suspect.

         Second, the municipal entities-Nicolet and the District-could be held liable under Monell for constitutional violations caused directly by the municipality's policies or customs. Monell, 436 U.S. at 690-91. To maintain a Section 1983 claim against a municipal entity, the plaintiff must first identify a “policy or custom” attributable to governmental policymakers. Gable v. City of Chi., 296 F.3d 531, 537 (7th Cir. 2002) (citing Monell, 436 U.S. at 691-94). This requirement serves to “distinguish acts of the municipality from acts of [its] employees . . . and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008) (internal quotations and citations omitted). A “policy or custom” may take one of three forms: “(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express [governmental] policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority.” Id. (quotation omitted). The plaintiff must also demonstrate “the requisite causation, ” which means that “the policy or custom was the ‘moving force' behind [his] constitutional deprivation.” Id.

         Bonchek has not alleged that Nicolet or the District had an express policy favoring sexual abuse or discrimination of its students. And despite naming the Board members as defendants (he does not say whether they have ultimate authority to set policy regarding teacher retention), he also has not alleged that any person with final policymaking authority caused his injury. That leaves only the theory of Monell liability premised on a widespread practice. See (Docket #29 at 8, 9) (Bonchek's opposition brief, acknowledging the three different types of Monell theories and arguing only the widespread practice, or de facto policy, theory). Bonchek argues the widespread practice theory in two (very similar) ways, but both fail.

         The first widespread practice Bonchek alleges is premised on Nicolet and the District concealing Johnson's 1983 abuse incident and praising him publicly, thereby “encourag[ing] a climate to flourish” where Johnson's abuse could continue. (Docket #4 at 37). The second widespread practice is the defendants' failure to further investigate Johnson's abuse and to end the abuse, presumably by disciplining or firing him. Id. at 38-40.[3] To state a claim under Monell for failure to investigate or discipline, Bonchek must plausibly allege that the municipality's practice with respect to investigations and discipline amounted to deliberate indifference to the plaintiff's rights and proximately caused his constitutional deprivation. City of Canton, 489 U.S. at 392; Calusinksi v. Kruger, 24 F.3d 931, 936 (7th Cir. 1994); Lewis v. City of Chi., No. 04C3904, 2005 WL 1026692, at *7 (N.D. Ill. Apr. 26, 2005).

         To support his theories about these practices, Bonchek relies exclusively on the defendants' alleged cover-up of Johnson's 1983 abuse and their failure to discipline or fire him for that offense. This is insufficient for at least two reasons. First, the fact that many people were allegedly involved in this one, specific “cover-up” does not make for a widespread custom for the purposes of Monell liability. Only if the defendants consciously ignored a need for action can it be said that they have a custom amounting to a de facto “policy” of violating students' constitutional rights. See City of Canton, 489 U.S. at 388; Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (“If the same problem has arisen many times and the municipality has acquiesced in the outcome, it is possible (though not necessary) to infer that there is a policy at work.”). Allegations related to one offender, or one offense, are simply not enough. Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017) (isolated acts of misconduct will not suffice to state a widespread practice claim under Monell); Baskin v. City of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998) (“[a] plaintiff cannot establish a § 1983 claim against a municipality by simply alleging that the municipality failed to investigate an incident or to take punitive action against the alleged wrongdoer”).

         Further, even if Bonchek had sufficiently alleged a widespread practice of failing to discipline sexual predators, his claim would fail for lack of causation. To state a claim under any of the Monell theories, a plaintiff must allege “the requisite causation, ” which means that “the policy or custom was the ‘moving force' behind the constitutional deprivation.” Gable, 296 F.3d at 537. To show that the municipality's custom was the “moving force” behind his injury, the plaintiff must show “a direct causal link between the municipal action and the deprivation of federal rights.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).

         Bonchek has not alleged that any defendant knew about Johnson's propensity for abusive behavior before Bonchek was abused in 1980. The defendants' alleged widespread practice of ignoring Johnson's abusive nature starting in 1983 could not possibly have caused Johnson's injury in 1980 and 1981. Absent an allegation of a causal link between the alleged failure to investigate and discipline and ...

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