Maimonis, Catherine v. Urbanski, P. (7th Cir. 2005)

Federal Circuits, 7th Cir. (August 04, 2005)

Docket number: 04-3742


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Not to be cited per Circuit Rule 53United States Court of AppealsFor the Seventh Circuit Chicago, Illinois 60604Argued April 1, 2005 Decided August 4, 2005BeforeHon. Frank H. Easterbrook, Circuit JudgeHon. Daniel A. Manion, Circuit JudgeHon. Ilana Diamond Rovner, Circuit JudgeNo. 04-3742Catherine Maimonis, Plaintiff-Appellant, Appeal from the United States District Court for the Northern District of Illinois,Eastern Divisionv. No. 04 C 1557Phillip Urbanski, Linda Yonke, David Creech, et al., Charles P. Kocoras, Chief Judge.Defendants-Appellees.O R D E RCatherine Maimonis appeals from the decision of the District Court for the Northern District of Illinois dismissing her complaint that the Elmhurst Community Unit School District No. 205 (§ 1983 claim is an allegation that a state actor violated a personÂ’s rights secured by the Constitution. Catherine asserts two such claims in her “Proposed Second Amended Complaint.” First, she claims that the events leading up to her suspension from school constituted an unreasonable search in violation of the Fourth Amendment. Second, she claims that she was deprived of her right to due process when she was suspended without a formal hearing. We address each claim in turn.A. The Fourth Amendment Claim Catherine claims that UrbanskiÂ’s request to search her purse constituted an unreasonable search because the request was not based on a “reasonable suspicion” that Catherine had violated school rules. To support her claim, Catherine cites Cornfield by Lewis v. Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir. 1993). In that case, we discussed the standard for “evaluating whether a search of a student is constitutional” in light of the Supreme CourtÂ’s decision in New Jersey v. T.L.O., 469 U.S. 325 (1985). Cornfield, 991 F.2d at 1320-21.CatherineÂ’s claim, however, suffers from a very basic flaw: there was no search. Urbanski asked Catherine for permission to search her purse and Catherine refused. A request to search is not a search. Furthermore, while a government official (in this case, a school official) must have some justifiable reason to conduct a search of a personÂ’s property without that personÂ’s permission, that same official does not have to have any reason to simply ask a person for permission to search their property so long as that person recognizes they are free to refuse to consent. See Florida v. Bostick, 501 U.S. 429 , 435 (1991). Catherine was free to refuse consent, and she did. B. The Due Process Claim CatherineÂ’s second claim is that she was deprived of her right to due process when she was suspended without a hearing. CatherineÂ’s authority for this right to a hearing is Goss v. Lopez, 419 U.S. 565, 581 (1975). In Goss, the Supreme Court distinguished between suspensions from school for less than ten days and suspensions for longer periods of time. A student suspended for less than ten days has no right to a formalized hearing and review of the suspension. Id. Instead, a student must be given an oral or written notice of the reason for a suspension decision. Smith ex rel. Smith v. Severn, 129 F.3d 419, 428 (7th Cir. 1997). The student should also be given an opportunity to explain himself. Id. This opportunity can come, however, immediately after notice of the schoolÂ’s decision—no waiting period is necessary. Id. That is what happened here. Catherine and her father were notified in person of the reason she was being suspended and Catherine was given an opportunity to explain why she should not be suspended. Catherine had no constitutional right, due to the brevity of her suspension, to any more.2 III. The district court did not err when it denied Catherine MaimonisÂ’s motion for leave to amend her complaint. Catherine cannot make out a claim against the School District or the individual defendants that they violated her constitutional rights. The decision of the district court is AFFIRMED.2 Catherine may have had a claim under state law to greater procedural protections. We are not, however, concerned with such a claim here and express no opinion as to the ultimate merits of such a claim. We are concerned only with whether Catherine received the procedural protections she was due under the Constitution. Although Catherine raised state law claims in her original and amended complaints, when it dismissed her original complaint, the district court declined to exercise its supplemental jurisdiction over those claims.

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