Joel Cielak v. Nicolet Union High School District

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 23-3069
JOEL CIELAK and BARRON HODGES,
                                                Plaintiffs-Appellants,
                                 v.

NICOLET UNION HIGH SCHOOL DISTRICT, et al.,
                                     Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
                   Eastern District of Wisconsin.
           No. 2:22-cv-00819 — J. P. Stadtmueller, Judge.
                     ____________________

     ARGUED MAY 24, 2024 — DECIDED AUGUST 12, 2024
                ____________________

   Before EASTERBROOK, KIRSCH, and LEE, Circuit Judges.
   KIRSCH, Circuit Judge. While attending Nicolet High School
(NHS) in the late 1970s and early 1980s, Joel Cielak and Barron
Hodges were sexually abused by David Johnson, a teacher at
NHS. After Hodges reported the abuse in the summer of 1983,
members of the Nicolet Union High School District board
confronted Johnson but kept him employed at NHS. For
Hodges, the abuse stopped, and Johnson left him alone for the
remainder of his time at NHS. Johnson’s continued presence
2                                                   No. 23-3069

at the school, however, caused Hodges mental anguish. Un-
fortunately, for Cielak, who had graduated from NHS in 1982,
Johnson’s abuse continued.
    Cielak and Hodges sued numerous parties—including
NHS, the school district, and members of the board—raising
claims under 

, for violation of their Fourteenth
Amendment substantive due process and equal protection
rights, and under 

, alleging a conspiracy to
violate their equal protection rights. Defendants filed a mo-
tion to dismiss, which the court granted, dismissing the
claims with prejudice and denying plaintiffs’ leave to amend
their complaint.
    On appeal, plaintiffs do not challenge the district court’s
conclusion that they failed to state claims premised on John-
son’s abuse predating Hodges’s 1983 allegation. Instead, they
argue that they plausibly pleaded claims based on the post-
allegation abuse of Cielak and the psychological injuries
Hodges suffered because of Johnson’s continued presence at
NHS. But Hodges claims are time barred, Cielak’s allegations
of post-allegation harms do not amount to violations of his
substantive due process or equal protection rights, and the
court did not abuse its discretion in denying them leave to
amend, so we affirm.
                                I
    This appeal arises out of a motion to dismiss, so we accept
the well-pleaded facts in the complaint as true and draw rea-
sonable inferences in plaintiffs’ favor—but we do not pre-
sume the truth of legal conclusions and conclusory allega-
tions. Bronson v. Ann & Robert H. Lurie Children's Hosp. of Chi.,

, 448 (7th Cir. 2023).
No. 23-3069                                                  3

    David Johnson was a math teacher and the chair of the
math department at Nicolet High School—a prominent mem-
ber of the faculty and heavily involved in the school commu-
nity. In 1978 Johnson contacted the mother of Joel Cielak, an
eighth grader. Johnson told Cielak’s mother that he was con-
ducting a physiological study and asked if Cielak would par-
ticipate—Cielak later agreed.
    This study was a pretext for abuse, which began once
Cielak started at NHS later in 1978. Around once a week,
Johnson would pick Cielak up from school and take him to
his apartment, where he would molest Cielak, maintaining
the ruse of the physiological study. Around the spring of 1980,
Cielak told his physical education teacher about Johnson’s
conduct, but no action was taken. The abuse continued while
Cielak was a student and after his graduation in 1982, lasting
until he was in his twenties. All the while, Johnson kept up
the charade of the physiological study, at some points send-
ing Cielak checks that made references to “studies” in the
memo lines.
    Cielak was not Johnson’s only victim. Barron Hodges be-
gan attending NHS in 1981 and was in Johnson’s math class
in the spring of 1983. Johnson, as he had done with Cielak,
asked Hodges if he wanted to participate in a “research pro-
ject” regarding physiology. On four occasions that spring,
Hodges went to Johnson’s apartment, where Johnson abused
him in the same manner as he did Cielak.
    Later that year, Hodges attended summer school and told
a teacher about Johnson’s behavior, describing how the study
involved making contact with Johnson’s genitals. The teacher
told her husband, who contacted the police, but they told him
to contact NHS. Soon after, Myra Taxman, a Nicolet Union
4                                                 No. 23-3069

High School District board member, met with the teacher, ex-
plaining that the board knew of Hodges’s allegation and that
it had handled the issue.
    Indeed, the board, once it became aware of the allegation,
met in a closed session with Johnson and confronted him
about the accusation. It agreed to continue Johnson’s employ-
ment at NHS but imposed conditions and appointed an NHS
staff member to supervise Johnson. When Hodges returned to
NHS in the fall of 1983, an NHS faculty member told Hodges
that Johnson would leave him alone, and Johnson did so for
the remainder of Hodges’s time at NHS. But sharing the
school with his abuser caused Hodges mental anguish.
    Decades later, in 2016, a former student reported John-
son’s abuse to NHS. In response, NHS and the school district
retained independent counsel to conduct an investigation.
The investigator interviewed members of the board and un-
covered the board’s response to Hodges’s summer of 1983 al-
legation. He also found that “[n]one of the individuals who
were interviewed were aware of any incidents or misconduct
involving Mr. Johnson after 1983.” NHS and the school dis-
trict released the investigator’s findings and sent a letter to
NHS alumni summarizing his conclusions. Johnson died by
suicide shortly after the findings were released.
    Cielak and Hodges sued, among others, NHS, the school
district, and three members of the school district board in
their individual and supervisory capacity—Gerald Haig,
Myra Taxman, and Robert Strauss. They raised federal and
state law claims, including: (1) claims under 

for violations of their Fourteenth Amendment substantive
due process rights; (2) § 1983 claims for denial of their Four-
teenth Amendment equal protection rights; and (3) a claim
No. 23-3069                                                     5

under 

 alleging a conspiracy to deprive them
of their Fourteenth Amendment equal protection rights.
Plaintiffs also raised, as a separate count, a § 1983 claim for
failure to hire, train, and supervise in violation of the Four-
teenth Amendment. But this is not a standalone cause of ac-
tion; it is a theory for holding a municipal entity liable for an
employee’s constitutional violation. See Flores v. City of South
Bend, 

, 731 (7th Cir. 2021) (recognizing the “fail-
ure-to-train theory” as a basis for § 1983 liability).
     Defendants moved under Federal Rule of Civil Procedure
12(b)(6) to dismiss the complaint for failure to state a claim,
which the court granted as to the federal claims. After dis-
missing the federal law claims with prejudice, the district
court declined to exercise supplemental jurisdiction over the
remaining state law claims and dismissed them without prej-
udice. (Plaintiffs do not challenge this decision on appeal, so
we discuss it no further.) It also denied plaintiffs leave to
amend, concluding that amendment would be futile. Plain-
tiffs timely appealed.
                                II
     Defendants argue that plaintiffs’ claims are barred by the
statute of limitations. Dismissal on statute of limitations
grounds is proper on a motion to dismiss only when a plain-
tiff’s allegations clearly establish that the claims are untimely.
Milchtein v. Milwaukee County, 

, 822 (7th Cir. 2022).
Claims under § 1983 borrow the statute of limitations for per-
sonal injury actions in the state in which the cause of action
arose (here, Wisconsin), Wallace v. Kato, 

(2007), as do claims under § 1985, Wilson v. Giesen, 

, 741 n.4 (7th Cir. 1992).
6                                                   No. 23-3069

    The applicable Wisconsin statute of limitations is 

. Cannon v. Newport, 

, 305–06 (7th Cir.
2017). Before April 5, 2018, this provided for a six-year statute
of limitations, but since then the limit has been three years.

 (2016), amended by 2017 Wis. Act 235 (eff.
Apr. 5, 2018). Whether the six or three-year limit applies
makes no difference to the outcome here, nor does the fact
that plaintiffs were under 18 when some of the abuse oc-
curred. 

(1)–(2).
    While state law supplies the statute of limitations, federal
law governs the accrual of § 1983 and § 1985 claims.
McDonough v. Smith, 

, 115 (2019). And such claims
accrue “when a plaintiff knows the fact and the cause of an
injury.” Amin Ijbara Equity Corp. v. Village of Oak Lawn, 

 (7th Cir. 2017) (quotation omitted). In other
words, a plaintiff’s claim accrues when he “has a complete
and present cause of action, that is, when the plaintiff can file
suit and obtain relief” because, at that point, the plaintiff
knows or should know that his constitutional rights were vi-
olated. Towne v. Donnelly, 

, 670–71 (7th Cir. 2022)
(quoting Kato, 

).
                               A
    We first address plaintiffs’ § 1983 claims against NHS, the
school district, as well as Haig, Taxman, and Strauss in their
capacities as school board members (which are redundant of
the claims against the school district, Tom Beu Xiong v. Fischer,

 (7th Cir. 2015)). On appeal, plaintiffs focus
on the harms following Hodges’s 1983 abuse allegation—
Johnson’s abuse of Cielak a year after his graduation in 1982
and his continued presence at NHS which caused Hodges
psychological harm. Both plaintiffs knew of these injuries and
No. 23-3069                                                     7

that Johnson was the cause of their injuries in the early 1980s,
meaning § 1983 claims against Johnson would clearly be time
barred. But plaintiffs are not pursuing § 1983 claims against
Johnson. Their constitutional claims are against municipal en-
tities, so they must pursue these claims under Monell v. De-
partment of Social Services, 

 (1978). Bohanon v. City
of Indianapolis, 

, 675 (7th Cir. 2022).
    There is no cause of action under Monell solely when there
has been a constitutional violation by a subordinate of a mu-
nicipal entity. To state a Monell claim, a plaintiff must also
show municipal action and that the action was the cause of
the constitutional violation. 

 The constitutional violation is
the “fact” of the injury, the municipal action is the “cause,”
and a plaintiff must know (or have reason to know) of both
for his claim to accrue. Amin Ijbara Equity Corp, 

.
Simply put, because they proceed under Monell, the statute of
limitations does not begin to run until plaintiffs knew or had
reason to know both that they were harmed by Johnson and
that municipal action caused their harm.
                                1
    Turning first to Hodges, his Monell claims accrued in the
fall of 1983 and are time barred. Hodges knew in the fall of
1983 that he experienced psychological distress because John-
son remained at NHS. While Hodges alleges that the “extent”
of his injuries was not fully known until recently, a “cause of
action accrues even though the full extent of the injury is not
then known.” Wallace, 

 (quotation omitted).
Hodges also knew that Johnson was still employed at NHS
despite Hodges notifying a teacher of the abuse and thus
knew (or at least had reason to know) that defendants’ failure
to fire or otherwise remove Johnson from NHS caused his
8                                                     No. 23-3069

injury. Cf. Snyder-Hill v. Ohio State Univ., 

, 704 (6th
Cir. 2022) (noting, in the analogous context of Title IX, that
“[a] plaintiff will typically know or have reason to know that
a school mishandles their own report of an assault close to the
time of the school’s inadequate response.”). That Johnson re-
mained after Hodges reported the abuse to a teacher might
not be enough on its own for us to conclude that Hodges
knew or had reason to know his injury was caused by defend-
ants’ actions. Indeed, Hodges alleges that he “finally became
aware of the school’s active role in his continual mental
trauma” only after the investigator’s findings were released
in March 2018. But we need not decide whether it is sufficient,
alone, because his complaint notes that, as an “indication that
[his] report had been heard,” a faculty member at NHS—
other than the teacher he made the allegation to—said to him
that Johnson would leave him alone. Moreover, he alleges
that, in the fall of 1983, he believed the school board knew of
his allegation, “took [it] seriously, and were doing everything
they could to prevent David Johnson from abusing more stu-
dents.” So while he may not have known exactly the degree
or the nature of defendants’ role, he knew or had reason to
know they bore responsibility for his psychological distress in
the fall of 1983 because they were aware of his allegation yet
allowed Johnson to remain at NHS.
    In sum, Hodges has “affirmatively plead[ed] himself out
of court” because his complaint “plainly reveal[s] that the ac-
tion is untimely.” Chi. Bldg. Design, P.C. v. Mongolian House,
Inc., 

 (7th Cir. 2014) (cleaned up). His allega-
tions unambiguously show he knew both the fact (Johnson’s
presence) and cause of his injury (defendants’ decision to con-
tinue Johnson’s employment) and thereby had a complete
cause of action under Monell in the fall of 1983. And Hodges
No. 23-3069                                                   9

makes no argument that the statute of limitations can be
tolled to anywhere near the latest dates the claims could ac-
crue to still be within the limitations period.
                               2
    On the other hand, we cannot conclude from the com-
plaint that the statute of limitations bars Cielak’s Monell
claims. It is true that Cielak knew Johnson continued to abuse
him after Hodges’s 1983 allegation and thereby was cognizant
of his injury. But Cielak’s allegations, unlike Hodges’s, do not
clearly show that he knew or had reason to know that the
post-allegation injury had any connection to actions by NHS,
the school district, or the school board members. Cielak al-
leges that he told a teacher about the abuse in the spring of
1980 and “[u]pon information and belief … believed or had
reason to believe that [the teacher], informed and/or intended
to inform the appropriate authorities,” yet the abuse contin-
ued. But this is far from unequivocally showing Cielak knew
or had reason to know that defendants were aware of John-
son’s conduct after Cielak graduated and failed to act. Unlike
Hodges, Cielak does not allege he received confirmation that
his abuse allegation had been reported beyond the initial per-
son he told. Moreover, the district court concluded that
Cielak’s 1980 abuse allegation did not show defendants had
notice of the abuse before Hodges’s 1983 allegation, and
Cielak does not contest this conclusion. And there is no indi-
cation in the complaint that Cielak had knowledge of
Hodges’s 1983 allegation and thus had reason to know the
board knew of Johnson’s abuse.
    From this, it is unclear when Cielak knew or had reason to
know that it was defendants’ actions that caused his injuries
following Hodges’s 1983 allegation. Thus, it is improper to
10                                                   No. 23-3069

find his Monell claims time barred on a motion to dismiss. Hy-
son USA, Inc. v. Hyson 2U, Ltd., 

 (7th Cir. 2016)
(Dismissal on statute of limitations grounds “is appropriate
only when the factual allegations in the complaint unambigu-
ously establish all the elements of the defense.”) (emphasis in
original).
                                B
    In line with the foregoing analysis, Hodges’s § 1983 claims
against school board members Haig, Taxman, and Strauss in
their supervisory capacities are time barred, but Cielak’s are
not. A supervisory liability claim under § 1983 requires a
showing that the supervisor knew about constitutional viola-
tion and was personally involved in it. Gill v. City of Milwau-
kee, 

 (7th Cir. 2017). So, similar to a Monell
claim, a § 1983 supervisory liability claim accrues when a
plaintiff had, at least, reason to know both that they had been
injured and that the supervisors of the person committing the
injury were involved in it. Here, both plaintiffs knew of their
post-allegation injuries. And as discussed, in the fall of 1983
Hodges knew or had reason to know that the school board
was aware of Johnson’s abuse and did not remove him, giving
him reason to know of their involvement. By contrast, it is not
clear when Cielak reasonably knew of these defendants’ role
in his injuries.
                                C
    Finally, as to plaintiffs’ § 1985 claims, we need not address
whether the statute of limitations bars them because plaintiffs
have waived their challenge to the dismissal of these claims.
The two-sentence discussion of the issue in their opening brief
is undeveloped and wholly fails to engage with the reasoning
No. 23-3069                                                       11

of the district court. Bradley v. Vill. of Univ. Park, Ill., 

, 897 (7th Cir. 2023).
                                 III
    Because the § 1985 claims are waived and Hodges’s claims
are time barred, we only address, on the merits, the dismissal
of Cielak’s § 1983 claims. Again, he does not contest the dis-
trict court’s conclusion that defendants did not know of the
abuse before Hodges’s 1983 allegation and thus could not be
liable for abuse predating it. Instead, he argues that the dis-
trict court did not adequately consider Johnson’s post-allega-
tion conduct—his abuse of Cielak after Cielak’s graduation.
    We review such a dismissal de novo. Bronson, 69 F.4th at
447. For a complaint to survive a motion to dismiss, it must
allege “enough facts to state a claim to relief that is plausible
on its face” or, in other words, contain “factual content that
allows the court to draw the reasonable inference that the de-
fendant is liable for the misconduct alleged.” Id. (quotation
omitted).
                                 A
    We first address Cielak’s objection to the dismissal of his
Monell claims against NHS and the school district, as well as
redundant claims against the three school board members. To
establish municipal liability under Monell, a plaintiff must
first show he was deprived of a federal right. Dean v. Wexford
Health Sources, Inc., 

, 235 (7th Cir. 2021). This re-
quires proof that: “(1) he was deprived of a right secured by
the Constitution or laws of the United States; and (2) the dep-
rivation was visited upon him by a person or persons acting
under color of state law.” Bohanon, 46 F.4th at 675 (quotation
omitted).
12                                                      No. 23-3069

     Cielak’s claims fail at this first step: he has not plausibly
pleaded a violation of his substantive due process or equal
protection rights because Johnson’s post-allegation abuse—
after Cielak graduated from NHS—was not done under color
of state law. Cielak cannot merely assert that Johnson was a
state employee; instead, he must allege that Johnson’s “invo-
cation of state authority in one way or another facilitated or
enabled the alleged misconduct.” DiDonato v. Panatera, 

, 1160–61 (7th Cir. 2022). In other words, in commit-
ting the abuse, Johnson must have been “exercising power
‘possessed by virtue of state law and made possible only be-
cause [he] is clothed with the authority of state law.’” 

 at
1159 (quoting West v. Atkins, 

 (1988)). But once
Cielak graduated from NHS, Johnson’s abuse was unrelated
to his duties as a teacher and was not done pursuant to or fa-
cilitated by any authority he had as a teacher. Simply, after
1983, Johnson and Cielak “did not encounter each other as
[student and teacher], but as private persons,” so Johnson’s
actions “were those of a private citizen in the course of a
purely private [ ] interaction.” Id. at 1162 (quotation omitted).
    Cielak makes much of the fact that Johnson continued to
invoke the sham physiological study during the post-allega-
tion abuse, but his allegations do not show that Johnson “was
anything other than a private citizen or that his [teaching] du-
ties related to [Cielak’s] claims.” Barnes v. City of Centralia, Ill.,

, 832 (7th Cir. 2019). Cielak does not allege that
the study was part of Johnson’s duties or related to Johnson’s
employment at NHS. See Reardon v. Danley, 

, 828
(7th Cir. 2023) (finding a public official did not act under color
of state law because there were no allegations that “the act
was related to his position … or that he possessed any State
authority to remove it”). And the fact that Johnson, using his
No. 23-3069                                                    13

authority as a teacher, initiated the abuse when Cielak was a
student does not mean the abuse after 1983 was enabled by an
invocation of state authority. See Becerra v. Asher, 

 (5th Cir. 1997) (rejecting plaintiff’s argument that
abuse was under color of state law because it “would not have
occurred if [the teacher] had not first won [the student’s] trust
and affection while serving as his teacher”).
    Cielak also argues that Johnson was only able to abuse him
after the 1983 allegation because of Johnson’s prominence in
the community. But influential status is not itself a “sign[] of
state authority.” Cf. Pickrel v. City of Springfield, Ill., 

 (7th Cir. 1995). In abusing Cielak after his gradua-
tion, Johnson was “functionally equivalent to ... any private
citizen” who happens to have influence in a community. Di-
Donato, 24 F.4th at 1161 (quotation omitted). In sum, as Cielak
can show no violation of his rights after Hodges’s allegation,
the district court properly dismissed his § 1983 claims.
                                B
    Cielak does not challenge the dismissal of his § 1983
claims against Haig, Taxman, and Strauss in their personal ca-
pacities, so we only address the dismissal of the claims against
those defendants in their supervisory capacities. Recall that
“[a]n official may be liable in a supervisory capacity if he was
‘personally involved in [his subordinate’s] constitutional vio-
lation.’” Milchtein, 42 F.4th at 824 (quotation omitted). But,
even assuming these defendants were Johnson’s supervisors,
after Hodges’s 1983 allegation, Johnson committed “no con-
stitutional violation for [them] to condone,” so they could not
be liable in their supervisory capacities. Matthews v. City of
East St. Louis, 

 (7th Cir. 2012).
14                                                   No. 23-3069

                               IV
    Finally, plaintiffs assert the district court erroneously de-
nied them leave to amend their complaint, a determination
we review for abuse of discretion, Schmees v. HC1.COM, Inc.,

, 487 (7th Cir. 2023). Under Federal Rule of Civil
Procedure 15, a “court should freely give leave when justice
so requires.” In assessing a denial of leave to amend, “we con-
sider whether it caused prejudice to the plaintiff, which ‘ordi-
narily requires a party to show how she would have amended
her pleading ... in the district court, unless the court closed
that door.’” Schmees, 77 F.4th at 487 (quotation omitted).
    There was no reversible error in denying leave to amend:
plaintiffs waited far too long to explain, in any substance, how
they would have amended their complaint. They did not alert
the district court as to how they would cure the complaint’s
defects when they sought leave to amend in their brief oppos-
ing the motion to dismiss. Even if that was not a sufficient op-
portunity to make such a showing, once plaintiffs were on no-
tice of their complaint’s deficiencies after dismissal, they
“could have moved under Federal Rule of Civil Procedure
59(e) or 60(b) for another opportunity” but failed to do so.
Pension Tr. Fund for Operating Eng’rs v. Kohl’s Corp., 

 (7th Cir. 2018). Further, assuming they had no oppor-
tunity whatsoever to notify the district court as to how they
would amend, on appeal they “did not indicate in their open-
ing brief what they would have alleged in an amended com-
plaint.” L. Offs. of David Freydin, P.C. v. Chamara, 

,
1134 (7th Cir. 2022). Indeed, “[n]ot until their reply brief did
[they] provide any concrete information.” 

 That is too late.

                                                       AFFIRMED