In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3766
S TEPHEN J. W RAGG, JR.,
Plaintiff-Appellant,
v.
V ILLAGE OF T HORNTON, a municipal corporation,
JOHN K LACZAK, individually and as a agent of
Village of Thornton, and B OARD OF F IRE AND P OLICE
C OMMISSIONERS OF THE V ILLAGE OF T HORNTON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 7680—Robert M. Dow, Jr., Judge.
A RGUED A PRIL 5, 2010—D ECIDED M AY 7, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
B AUER, Circuit Judge. The Village of Thornton’s fire
chief John Klaczak molested Stephen Wragg, Jr., a sixteen-
year-old in the Village’s fire cadet program. Wragg
sued the Village under 42 U.S.C. § 1983, asserting that
2 No. 08-3766
the Village violated his substantive due process rights
under the Fourteenth Amendment by deliberately re-
taining Klaczak as fire chief despite knowledge of his
prior improprieties with other minors. The district court
granted summary judgment to the Village. We affirm.
I. BACKGROUND
We begin our review of the district court’s grant of
summary judgment by reciting the factual background in
the light most favorable to Wragg, construing all facts
and reasonable inferences in his favor. See, e.g., Ekstrand v.
Sch. Dist. of Somerset, 583 F.3d 972, 974 (7th Cir. 2009).
We review only those facts whose substance would be
admissible at trial under a form permitted by the Federal
Rules of Evidence, although the form produced at sum-
mary judgment need not be admissible. Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 327 (1986); Johnson v. Weld County,
Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010); Alexander v.
CareSource, 576 F.3d 551, 558-59 (6th Cir. 2009); Macuba v.
Deboer, 193 F.3d 1316, 1323-24 (11th Cir. 1999). Neither
party has suggested that the district court either consid-
ered evidence it shouldn’t have or failed to consider
evidence it should have, so we recite the facts as the
district court has given them to us, see, e.g., O’Neal v. City
of Chicago, 588 F.3d 406, 409 (7th Cir. 2009) (“[A]rguments
not raised on appeal are waived.”), and as we otherwise
find them in the record.
The Village of Thornton is home to about 2,400 people
and is organized under the Illinois Municipal Code, 65 Ill.
No. 08-3766 3
Comp. Stat. 5, with six elected trustees and one elected
president. At all times relevant to this appeal, the Village’s
president was Jack Swan.
President Swan learned in 1997 that the Village’s police
department had received a phone call from two anony-
mous parents claiming that Village police officer John
Klaczak had molested their minor son. Five months later,
Klaczak resigned his post as a police officer, seeking
rehabilitation for cocaine addiction, a fact which Swan
also learned.
Swan appointed Klaczak as the Village’s fire chief in
1999. Later that year, Klaczak molested minor fire
cadet Eric Bruinsma in a bathroom bar. During this act,
another member of the fire department walked in on
them. Klaczak molested Bruinsma on other occasions
as well.
Stories of Klaczak’s “propensity and his like for boys
and oral sex and anal sex [and] booze parties” circulated
throughout the fire department, R. 115-2 at 27, and on
at least one occasion the stories were related to
President Swan. Id. at 26-27. Fire department member
Charlie Ryan once expressed to Swan that he should
look into the fire cadet program, although he doesn’t
remember whether he asked Swan to investigate only
Klaczak’s hosting alcohol and drug parties that cadets
attended, R. 115-3 at 36-39, or also “a rumor of [Klaczak]
having sexual contact” with Bruinsma Id. at 79-80.
Klaczak molested Stephen Wragg in 2001, and was
arrested about six months later; Swan removed Klaczak
the same day he was arrested.
4 No. 08-3766
Wragg sued the Village (and others not relevant to this
appeal) under 42 U.S.C. § 1983. He claimed that the
Village deliberately retained Klaczak despite his known
propensity to molest minors, and that the Village’s delib-
erately indifferent employee retention policy caused
a violation of Wragg’s substantive due process rights.
The district court granted summary judgment to the
Village, finding that the Village’s final policymaker with
respect to Klaczak’s retention was the board of trustees,
and that only one trustee had knowledge of Klaczak’s
sexual propensities. The court concluded that there
could be no municipal liability for the isolated acts of
only one member of a multi-member board. Doe ex rel.
Doe v. V. of T., No. 02-C-7680, 2008 WL 4450317, at **7-8
(N.D. Ill. Sept. 30, 2008) (citing Rasche v. Vill. of Beecher,
336 F.3d 588, 601 (7th Cir. 2003)). Moreover, the district
court found that even were President Swan the Village’s
final policymaker, Wragg could not show that Swan’s
inaction “rose to the level of deliberate or reckless indif-
ference as is required for municipal liability.” Id. at *9.
II. DISCUSSION
We review the district court’s grant of summary judg-
ment de novo. Ekstrand, 583 F.3d at 974. Summary judg-
ment is proper if the pleadings, discovery materials,
disclosures, and affidavits demonstrate no genuine issue
of material fact such that the Village is entitled to judg-
ment as a matter of law. Fed R. Civ. P. 56(c). We may
affirm the district court’s grant of summary judgment
for any reason supported by the record. See Capocy v.
No. 08-3766 5
Kirtadze, 183 F.3d 629, 632 (7th Cir. 1999); Fairchild v.
Forma Scientific, Inc., 147 F.3d 567, 577 (7th Cir. 1998).
The Fourteenth Amendment mandates that a state
shall not “deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend XIV. A
state usually need not protect its citizens from “private
actors,” DeShaney v. Winnebago County Dept. of Soc. Servs.,
489 U.S. 189, 195 (1989); cf. Nabozny v. Podlesny, 92 F.3d
446, 459 n.13 (7th Cir. 1996) (outlining factors indicating
a custodial relationship in which states have an affirma-
tive duty to protect from private actors), but it may not
violate due process via one of its own actors. Collins v.
City of Harker Heights, 503 U.S. 115, 126 (1992); DeShaney,
489 U.S. at 195; Stoneking v. Bradford Area Sch. Dist., 882
F.2d 720, 723-24 (3d Cir. 1989). Klaczak was a govern-
mental actor, not a private actor, as he undisputedly
committed the abusive acts against Wragg in the line of
his duty as fire chief. See Appellant’s Br. at 5-6. So Wragg
had a substantive due process right not to be harmed
by Klaczak. See Stoneking, 882 F.2d at 725 (citing City of
Canton v. Harris, 489 U.S. 378 (1989)) (“Nothing in
DeShaney suggests that state officials may escape lia-
bility arising from their policies maintained in deliberate
indifference to actions taken by their subordinates.”).
The remainder of our inquiry concerns whether
Klaczak’s violation of Wragg’s rights can impute liability
to the Village. A village or other municipality may be
found liable under § 1983 when it violates constitutional
rights via an official policy or custom. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978). (Or via a conspiracy, but
6 No. 08-3766
Wragg’s evidence that a conspiracy occurred here is so
lacking that we need not address it.) To establish an
official policy or custom, a plaintiff must show that
his constitutional injury was caused “by (1) the enforce-
ment of an express policy of the [village], (2) a wide-
spread practice that is so permanent and well settled as
to constitute a custom or usage with the force of law, or
(3) a person with final policymaking authority.” Latuszkin
v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001) (citing
McCormick v. City of Chicago, 230 F.3d 319, 324 (7th
Cir. 2000)).
Wragg has pointed to no Village policy that was ex-
press. Nor has he established a practice so permanent,
well-settled, and widespread as to constitute custom or
usage, because the moving force behind Wragg’s injury
is at least as likely to be the Village’s “one-time
negligen[ce] . . . peculiar to” Klaczak. Bd. of County
Comm’rs v. Brown, 520 U.S. 397, 407-08 (1997) (citing City
of Canton, 489 U.S. at 390-91); see also Daniels v. Williams,
474 U.S. 327, 328, 330 (1986) (finding that a denial of
due process requires demonstrating a deprivation of
liberty or property that is more than merely negligent);
Davidson v. Cannon, 474 U.S. 344, 348 (1986) (same).
So Wragg is left with the third avenue of establishing
municipal liability in which he must show that he was
injured by a municipal official with “final policymaking
authority.” City of St. Louis v. Prapotnik, 485 U.S. 112, 123
(1988) (plurality opinion); id. at 142 (Brennan, J., concur-
ring); Latuszkin, 250 F.3d at 504. Whether a particular
official has final policymaking authority is a question of
No. 08-3766 7
state law, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989) (citing Prapotnik, 485 U.S. at 123); Rasche , 336 F.3d
at 600, including positive state law and “customs and
practices having the force of [state] law.” Valentino v. Vill.
of S. Chicago Heights, 575 F.3d 664, 676 (7th Cir. 2009).
The Village contends that neither in the district court
nor here did Wragg present “any argument as to which
individuals in the Village possess final policymaking
authority,” Doe, 2008 WL 4450317, at *7, and that therefore
his Monell claim is waived. See, e.g., Bus. Sys. Eng’g, Inc. v.
Int’l Bus. Machs. Corp., 547 F.3d 882, 889 n. 3 (7th Cir. 2008)
(“Arguments not raised before the district court are
waived on appeal.”); O’Neal, 588 F.3d at 409 (“[A]rguments
not raised on appeal are waived.”). Another way to
interpret Wragg’s briefs, however, as he explained to us at
oral argument, is that all the higher-ups he claims to have
acted with deliberate indifference were final policymakers.
We need not enter this debate about waiver because
Wragg’s Monell claim fails for other reasons. But in any
event, trying to accuse every Village official, as a
strategy to establish municipal liability, is unhelpful;
it distracts the parties and courts from focusing on the
particular final policymaker whose actions are essential
to the claim.
The district court found conclusively that the final
policymaker on the decision to retain Klaczak was the
board of trustees. In Rasche we held that the board of
trustees was the final policymaker “concerning zoning
policy and enforcement.” 336 F.3d at 600 (citing 65 Ill.
Comp. Stat. 5/11-13-1). And we stated, “Generally, . . . the
8 No. 08-3766
policymaking authority in the city structure will be the
city council, or here, the Board of Trustees.” Id. at 601
(emphasis added) (citing Auriemma v. Rice, 957 F.2d
397, 399-400 (7th Cir. 1992)). But to cite Rasche for the
proposition that the board of trustees, not the president,
is the final policymaker on every policy decision is to
miss the fact that we look to various factors in deter-
mining whether a certain individual or group has
policymaking authority on any particular policy decision.
They are: (1) lack of “constrain[ts] by policies” made by
others; (2) lack of “meaningful review”; and (3) a “grant
of authority” to make the policy decision. Valentino,
575 F.3d at 676, 677-78 (finding that the mayor, not the
board of trustees, had final policymaking authority to
hire and fire employees); see Prapotnik, 485 U.S. at 123;
Randle v. City of Aurora, 69 F.3d 441, 448, 450 (10th Cir.
1995) (finding an issue of fact as to whether individual
city officials or the city council had final policymaking
authority in the area of personnel matters).
Although the board of trustees had final power to
appoint and remove appointed officers, 65 Ill. Comp.
Stat. 5/3.1-30-5, 35-10, there remains an issue of fact as to
whether only President Swan had final power to retain
appointed officers he had not removed. Swan’s decision
to retain Klaczak by not removing him was solely within
his authority, 65 Ill. Comp. Stat. 5/3.1-35-10, and not
subject to meaningful review. Id. So whether Swan
had the final power to retain Klaczak turns on whether
his non-removal of Klaczak was constrained by any
policy made by others. Prapotnik, 485 U.S. at 123;
Valentino, 575 F.3d at 676.
No. 08-3766 9
We cannot tell from the record whether Swan was so
constrained by the Village’s policy against sexual harass-
ment. Cf. Auriemma, 957 F.2d at 399 (finding that the
city’s anti-discrimination policy constrained executive
action “unequivocally”). The policy states that those
found to be offenders will face “appropriate disciplinary
action,” not necessarily removal. R. 99-3 at 2. Moreover,
the Village does not argue that the policy required Swan
to actively investigate Klaczak’s behavior in lieu of re-
taining him. Nor can we tell from the written policy
whether the duty to investigate fell on Swan or some
other official(s) or whether such a duty was triggered by
the information Swan received. See id. (requiring “the
Village” to investigate “sexual harassment complaints”). If
the Village’s sexual harassment policy imposed a duty
on Swan to investigate Klaczak after receiving the infor-
mation he had learned, then the policy’s enactor, the
board of trustees, was the Village’s final policymaker on
the decision to retain Klaczak. If it imposed no such
duty, Swan was thus unconstrained, so he was the
final policymaker. Prapotnik, 485 U.S. at 123; Valentino, 575
F.3d at 676.
In any event, Wragg’s claim fails. Wragg presents no
evidence from which a reasonable jury could find that
either the board of trustees or Swan knew that main-
taining Klaczak in employment would pose a “sub-
stantial risk” of a constitutional violation. Frake v. City of
Chicago, 210 F.3d 779, 782 (7th Cir. 2000); see Bd. of
County Comm’rs, 520 U.S. at 407 (finding that municipal
liability attaches only where the final policymaker acts
“with deliberate indifference as to . . . known or obvious
10 No. 08-3766
consequences”) (internal quotation marks omitted);
Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004) (noting
that the “deliberate indifference” standard requires
“subjective awareness. . . . It is not enough that the [defen-
dant] ought to have recognized the risk.”) (emphasis in
original).
As to the board of trustees, we agree with the district
court that there can be no municipal liability for the
isolated acts of only one member of a multi-member
board. See Mason v. Vill. of El Portal, 240 F.3d 1337, 1340
(11th Cir. 2001); Church v. City of Huntsville, 30 F.3d 1332,
1343 (11th Cir. 1994). Wragg presents evidence relevant
to the knowledge only of one trustee, and makes no
effort to impute knowledge of Klaczak’s prior misbe-
havior to a quorum of the board. Such evidence is insuf-
ficient to find inaction by the board giving rise to the
Village’s liability.
As to Swan, no reasonable jury could find that he
acted with such knowledgeable, deliberate indifference
that the Village could be liable for his inaction. Swan
encountered various storm warnings about Klaczak,
but none sufficiently alerted Swan such that Klaczak’s
propensity to molest minors could be found “known or
obvious” to him. Bd. of County Comm’rs, 520 U.S. at 407.
First, Swan heard about a complaint that Klaczak had
molested a child while Klaczak was on the police
force, but the parents remained anonymous, provided no
specifics, and enabled no investigation. Cf. Jones v. City
of Chicago, 787 F.2d 200, 207 (7th Cir. 1986) (finding no
deliberate indifference where the city doubly inves-
No. 08-3766 11
tigated a prior complaint). No reasonable jury could
find that the anonymous parents’ unsubstantiated accusa-
tion made Klaczak’s tendencies known or obvious to
Swan, who testified that he knew Klaczak his whole life,
disbelieved that Klaczak was a child molester, and was
unaware of any sexual misconduct between Klaczak
and the Village’s fire cadets until Klaczak was arrested.
Second, Swan witnessed various fire department mem-
bers commenting to each other on Klaczak’s propensity
to molest young boys. But numerous witnesses testified
that such stories circulated about other fire department
members as well, and that the stories were generally
understood to be nothing but banter, cruel humor, and
typical firehouse antics. Wragg makes no effort to
rebut this testimony, and so again no reasonable jury
could find that Swan was actually aware of Klaczak’s
tendencies.
Third, Swan might have heard from Ryan that Klaczak
engaged in sexual contact with cadets—Ryan doesn’t
recall whether he told Swan. Compare R. 115-3 at 36-39
with id. at 79-80. Moreover, Ryan admits that the basis
of his knowledge of Klaczak’s sexual misconduct was
only “through rumors.” Id. at 35:12-18. Ryan’s deposi-
tion testimony is both too “ambiguous” and too “specula-
tive” as to whether Swan actually knew about Klaczak’s
sexual misconduct, such that it cannot defeat summary
judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 595 (1986).
Finally, Swan heard from Ryan about Klaczak’s alcohol
and drug-related misbehavior with cadets. However,
12 No. 08-3766
Swan’s knowledge of Klaczak’s alcohol and drug-related
misbehavior with cadets, coupled with his knowledge
of Klaczak’s prior cocaine addiction, do not give rise
even to speculation about sexual misconduct, which is
unrelated.
III. CONCLUSION
The Village is not liable for retaining Klaczak because:
(1) a quorum of the Village’s board of trustees had no
knowledge of his prior sexual misconduct; and (2) even
if the Village’s policy against sexual harassment lacked
the teeth to constrain President Swan such that he
wielded the Village’s ultimate power to retain Klaczak,
Wragg presented insufficient evidence for a reasonable
jury to find that Swan knew that retaining Klaczak posed
a substantial risk to Wragg. Swan might have acted
negligently, but Wragg presented insufficient evidence
to find that he acted more culpably as is required to
find liability against the Village. Therefore, we A FFIRM .
5-7-10