# Zerla v. Stark County, Illinois

> District Court, C.D. Illinois · July 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10135467

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** July 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION

FULVIO ZERLA, )
)
Plaintiff, )
)
v. ) Case No. 1:19-cv-01140-JES-JEH
)
STARK COUNTY, ILLINOIS, and )
STEVE SLOAN, in his Individual and )
Official Capacity )
)
Defendants. )

ORDER AND OPINION
This Motion comes before the Court on Defendants’ Motion to Dismiss (Doc. 13).
Plaintiff filed a Response (Doc. 14). For the reasons stated below, the Motion to Dismiss is
DENIED.
BACKGROUND
On April 25, 2019, Plaintiff brought his Complaint pursuant to 42 U.S.C. § 1983.1 Doc.
1. Plaintiff alleges that Defendants violated his right to freedom of speech while acting under the
color of state law. Id. at 2. On June 24, 2019, Defendants filed a Motion to Dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Doc. 13. On July 8, 2019, Plaintiff
filed his Response to Defendants’ Motion to Dismiss. Doc. 14.
On January 13, 2015, Plaintiff was appointed to the Stark County Board. While on the
County Board, Plaintiff had oversight responsibilities over county finances, which included
“appropriations for the operations of the Sheriff’s department.” Doc. 1, p. 3. Plaintiff and other

1 The facts alleged in the Plaintiff’s complaint are taken as true for the purposes of resolving this Motion
to Dismiss.
board members would discuss budget and other policy positions at County Board meetings, at
which Plaintiff stressed the importance of county departments staying within their budgets.
Defendant Steve Sloan (“Sloan”) became Sheriff of Stark County on December 1, 2016.
As Sheriff, Sloan is required to attend Board meetings to keep the peace. In the Spring of 2017,

spending in the Sheriff’s office was causing a budgetary crisis. Sloan met with Plaintiff and the
Board Chairperson to resolve the spending issue. Sloan rejected the suggested changes to his
office’s spending made by the Plaintiff and Chairperson. Plaintiff then prepared a letter for the
Chairperson that outlined the budget problems the Sheriff’s office had created and indicated that
if the office went over budget, the Chairperson did not foresee additional funding being
appropriated for the office.
During the March 9, 2017 Board meeting, Sloan became agitated at the Plaintiff and
Chairperson over their insistence that the Sheriff’s office stay within its budget. While
performing his duties as Sheriff during the board meeting, Sloan stated that he would no longer
work with the Plaintiff or Chairperson. Sloan then began yelling and making gestures at the

Plaintiff which, according to the Plaintiff, made him and the other Board members believe Sloan
was threatening the Plaintiff.
During two subsequent board meetings in June 2017, protesters interrupted and caused
the meetings to be cancelled. Prior to the June 13, 2017 meeting, Sloan urged supporters to
attend the meeting for “intimidation purposes.” Id. at 4. Before the meeting started, Sloan held a
rally outside the courthouse urging people to come inside and disrupt the meetings. The crowd
entered the courthouse and caused the Plaintiff to push through a “hostile” crowd in order to take
his seat. Id. Sloan began yelling before the meeting began for the Plaintiff and Chairperson to
resign, and Sloan demanded his supporters yell louder. At the rescheduled meeting on June 15,
2017, Sloan allegedly paid individuals from a watchdog group to attend the meeting and they
immediately disrupted the meeting by saying the meeting was illegal, causing the meeting to end.
In the same month, Sloan released a voicemail from the Chairperson to the public about
two individuals who were disrupting meetings. One of the individuals, in response, watched the

Plaintiff and Chairperson and posted their location on Facebook. As a result, the Plaintiff and
Chairperson resigned due to intimidation and a fear for their families’ safety.
Plaintiff claims that this intimidation prevented him from communicating his policy
prescriptions for the budget and spending. Plaintiff also claims that Sloan’s conduct was
committed under color of state law as Sloan was Sheriff and was exercising that role during the
board meetings. Finally, Plaintiff claims that as Sloan has final policymaking authority as
Sheriff, Defendant Stark County (“Stark County”) is liable for Sloan’s actions.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal where a Plaintiff fails to
state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 553 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The facts alleged, plus reasonable inferences therefrom, are taken as
true, and the question is then whether on those assumptions the plaintiff would have a right to
legal relief.” Bane v. Ferguson, 890 F.2d 11, 13 (7th Cir. 1989).
DISCUSSION
As Defendants have stated in their Motion to Dismiss, for Plaintiff to establish a prima
facie case he must establish that (1) he engaged in activity protected by the First Amendment; (2)
he suffered a deprivation that would likely deter First Amendment activity in the future, and (3)

the First Amendment activity was a “at least a motivating factor” in the Defendants’ decision to
take the retaliatory action. Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). Defendants argue that Plaintiff was not
subject to First Amendment protections while on the Stark County Board and that he does not
have a plausible claim that he suffered a deprivation. For the reasons that follow, these
arguments fail.
I. Plaintiff has First Amendment protections.
First, Plaintiff has First Amendment protections of speech while on the Stark County
Board. Defendants claim that because Plaintiff is a public employee of Stark County while on the
Board, he must pass a two-step test laid out in Gonzalez v. City of Chicago that analyzes First

Amendment claims by public employees. Gonzalez v. City of Chicago, 239 F.3d 939, 940 (7th
Cir. 2001); see also Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“The first [inquiry] requires
determining whether the employee spoke as a citizen on a matter of public concern. . . . If the
answer is yes, then the possibility of a First Amendment claim arises. The question becomes
whether the relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public.”) (citing Pickering v. Board of Edu. of
Township H.S. Dist. 205, 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983)).
However, that test is in some tension with a previous Supreme Court holding that
legislators speaking on public policy issues are entitled to First Amendment rights to participate
in legislative functions. Bond v. Floyd, 385 U.S. 116 (1966). “The manifest function of the First
Amendment in a representative government requires that legislators be given the widest latitude
to express their views on issues of policy. . . . Legislators have an obligation to take positions on
controversial political questions so that their constituents can be fully informed by them.” Id. at

135–36. Courts have reached different conclusions about whether the Garcetti rationale and
Pickering and Connick balancing test should apply to speech restrictions of elected officials. See,
e.g., Werkheiser v. Pocono Township, 780 F.3d 172, 180 (3d Cir. 2015) (identifying intracircuit
tension in the 5th Circuit, noting a dicta rejection of the Bond exception to Garcetti in the 8th
Circuit, and surveying district courts that have fallen on either side of the issue). Most of the
analysis on this tension is rooted in actions by a state employer that restrict the speech of an
employee, rather than actions by another public official that prevent the plaintiff from exercising
legislative duties. Still, for example, when the president of a city council ejected a fellow
councilmember from a meeting due to his viewpoint on the budget, the Third Circuit found that
the matter was properly submitted to a jury for a determination of whether the ejection was

motivated by the president’s desire to suppress the plaintiff’s viewpoint. Monteiro v. City of
Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006).
In this district, we have treated county board members as legislators subject to the First
Amendment protections set forth in Bond. See Hoffman v. Dewitt County, 176 F. Supp. 3d 795,
811–12 (C.D. Ill. 2016). The Seventh Circuit appears to agree that elected legislative actors are
subject to different First Amendment analyses than “public employees” writ large,2 and in any

2 “Judge Siefert argues that judges are different from ‘employees’ because they are more akin to
legislative actors who are ‘ultimately accountable to the voters.’ See Jenevein v. Willing, 493 F.3d 551,
558 (5th Cir. 2007). However, this conception of a judge’s role is improperly limited.” Siefert, 608 F.3d at
984. Jenevein held that elected judges were elected officials not subject to the Pickering-Garcetti
balancing test. Jenevein v. Willing, 493 F.3d 551, 558 (5th Cir. 2007). The Seventh Circuit thus
acknowledged some category of differing treatment for legislative actors, and held elected judges were
event agrees that any government restriction of public employees’ speech must be related to the
government’s “duty to promote the efficiency of the public services it performs.” Siefert v.
Alexander, 608 F.3d 974, 984–85 (7th Cir. 2010). Here, taking Plaintiff’s factual allegations as
true, the purpose of Sloan’s conduct was to disrupt the efficiency of the County Board and

Plaintiff’s job duties. The Court concludes that Plaintiff was acting in his capacity as a legislator
on the Stark County Board in attempting to speak on the budget issue, and the First Amendment
protected his right to participate in legislative functions.
Defendants attempt to distinguish Plaintiff from an elected legislator, as he was appointed
to the Board. Defendants state that under Pleva v. Norquist, since Plaintiff is an appointed
member of the Stark County Board (no candidates ran for the position), he is not subject to the
First Amendment protections afforded to elected members. Pleva v. Norquist, 195 F.3d 905 (7th
Cir. 1999) (members of a city zoning board subject to appointment by the mayor and reappointed
after a three-year term were not legislators for Bond purposes). Although Plaintiff was appointed
to the Board, his position is subject to election and not re-appointment, and the Court finds for

the purposes of resolving this Motion that Plaintiff retained the First Amendment protections and
job duties of an elected member of the County Board, which include a right to participate in
legislative functions of the Board.
II. Plaintiff has a plausible claim to deprivation.
“Any deprivation under color of law that is likely to deter the exercise of free speech . . .
is actionable.” Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000)). “The test is whether a
person of ‘ordinary firmness’ would be deterred from exercising his or her First Amendment

not eligible for that treatment. See also Siefert, F.3d at 992–93 (Rovner, J., dissenting) (“In sum, no
Supreme Court decision or Seventh Circuit case has applied a balancing test to the speech of elected
officials.”).
rights.” Pindak v. Dart, 125 F. Supp. 3d 720, 751 (N.D. Ill. 2015) (citing Bart v. Telford, 677
F.2d 622, 625 (7th Cir. 1982)). In this case, Plaintiff claims that, while acting under color of law
as Sheriff, Sloan acted in a way that would deter the exercise of free speech, depriving Plaintiff
of his First Amendment rights.

Defendants argue that the allegations of Sloan’s actions would not rise to a level where a
person of “ordinary firmness” would be deterred from exercising their First Amendment rights.
Specifically, Defendants cite Zitzka v. Village of Westmont for the proposition that “criticism or
the intimidation resulting from being stared and yelled at, may not by itself rise to the level of a
materially adverse action.” Zitzka v. Vill. of Westmont, 743 F. Supp. 2d 887, 917 (N.D. Ill. 2010).
However, as the Zitzka court explained, “[a] ‘campaign’ of petty harassment that includes
reprimands and ridicule or other ‘minor forms of retaliation’. . . may be actionable under the
First Amendment if it is enough to deter the exercise of free speech.” Id. (citing Massey v.
Johnson, 457 F.3d 711, 720–21 (7th Cir. 2006)). While some of the conduct that Plaintiff has
alleged, standing alone, may not rise to the level described in Zitzka, including yelling by Sloan

and other members of the audience at the board meetings, Plaintiff’s further allegations of
intimidation provide a plausible claim that he was deprived of First Amendment rights by a
“campaign” of petty harassment deterring the exercise of free speech. As Plaintiff has plausibly
alleged that he is entitled to relief on this ground, the Motion to Dismiss is denied with respect to
the constitutional deprivation allegations.
III. Plaintiff has a plausible claim against Stark County.
According to Monell v. Department of Social Service of City of New York, a government
entity may be held liable on a § 1983 injury claim “when execution of a government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible [for]
under §1983.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). For
Plaintiff to establish that Stark County is liable, he must provide “an allegation that the
constitutional injury was caused by a person with final policymaking authority.” Lewis v. City of

Chicago, 496 F.3d 645, 656 (7th Cir. 2007).
In this case, Plaintiff alleges that Sloan had final policymaking authority over how to
keep the peace during the County Board meetings, which were in his official duties. The U.S.
Supreme Court stated in Pembaur v. City of Cincinnati that “particular officers may have
authority to establish binding county policy respecting particular matters and to adjust that policy
for the county in changing circumstances.” Pembaur, 475 U.S. 469, 483 (1986). As Plaintiff has
provided sufficient factual matter to show a plausible claim that Sloan adopted an “official
policy” to restrict or deter Plaintiff’s right to free speech in his capacity as Sheriff, the Motion to
Dismiss is denied on this ground as well.
CONCLUSION

For the reasons stated herein, Defendant’s Motion to Dismiss (Doc. 13) is DENIED.
Signed on this 25th day of July, 2019.
/s James E. Shadid
James E. Shadid
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10135467. Public record. Not legal advice.