Ronald Matrisciano v. Randle, Micheal P.

In the

United States Court of Appeals

For the Seventh Circuit

No. 06-1599

R ONALD M ATRISCIANO,

Plaintiff-Appellant,

v.

M ICHAEL P. R ANDLE, Director of the Department

of Corrections of the State of Illinois, and

D ONALD S NYDER,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 03-3072—Richard Mills, Judge.

A RGUED N OVEMBER 6, 2006—D ECIDED JUNE 26, 2009

Before R IPPLE, W ILLIAMS, and SYKES, Circuit Judges.

W ILLIAMS, Circuit Judge. After an Assistant Deputy

Director in the Illinois Department of Corrections volun-

tarily testified at a Prisoner Review Board hearing in

support of an inmate’s release, his employer transferred

him to another role in the Department. He maintains

that doing so violated the rights guaranteed to him by

2 No. 06-1599

the First Amendment to the United States Constitution.

At the time of the transfer, however, it was not clearly

established that the employer’s action violated any con-

stitutional rights. As a result, the defendants are entitled

to qualified immunity, and the district court’s grant of

summary judgment is affirmed.

I. BACKGROUND

On this appeal from the grant of summary judgment

in the defendants’ favor, we recount the evidence in the

summary judgment record in the light most favorable

to the plaintiff. See Burnett v. LFW, Inc., 472 F.3d 471, 477

(7th Cir. 2006). During the time period relevant to this

case, Donald Snyder was the director of the Illinois Depart-

ment of Corrections (IDOC). George DeTella, the Depart-

ment’s Associate Director, reported to Snyder. DeTella’s

direct reports included the Deputy Directors for each of

the Department’s five districts. Underneath them were

the Assistant Deputy Directors in each of the districts, one

of which was the plaintiff.

Ronald Matrisciano began working for the IDOC in

September of 1980. He was promoted several times and,

on July 1, 2002, rose to the level of Assistant Deputy

Director. An Assistant Deputy Director was responsible

for supervising the wardens and other administrative

personnel in his district. The Assistant Deputy Director

job description outlines its various functions, including

“develops policies and procedures regarding program

area[s]” and “makes recommendations for new programs

and projects.” The Deputy Director in Matrisciano’s

No. 06-1599 3

district passed away on the same day Matrisciano

assumed the Assistant Deputy Director role, and the

Deputy Director role remained vacant throughout the

time Matrisciano served as Assistant Deputy Director.

Before rising to the level of Assistant Deputy Di-

rector, Matrisciano had been assigned the task of ensur-

ing inmate Harry Aleman’s safety during his transfer

from the federal prison system to the Joliet IDOC facility

in July of 2000. Aleman had been tried in 1977 for a

murder that occurred in 1973 but was found not guilty.

He was later convicted of violating federal racketeering

laws as well as transporting stolen goods across state

lines. In addition, years after his murder acquittal, federal

investigators discovered that the judge presiding over

his murder trial had received a $10,000 bribe from

Aleman. Aleman was retried in 1993 for the 1973 murder,

found guilty, and sentenced to 100 to 300 years in prison.

See People v. Aleman, 729 N.E.2d 20 (Ill. App. Ct. 2000).

Aleman was housed at the Joliet facility for six months

after his transfer there. During that time, Matrisciano

visited the Joliet facility two or three times a month to

address inmates’ concerns and issues regarding the

facility, and he met with Aleman during those visits.

Aleman’s family members also contacted Matrisciano to

convey concerns. With Aleman coming up for parole,

Aleman and his grandson asked Matrisciano if he

would speak at a parole hearing before the Prisoner

Review Board on Aleman’s behalf.

A Board hearing was originally scheduled for March

of 2002. That January, Matrisciano says that he informed

4 No. 06-1599

IDOC Director Snyder and Associate Director DeTella

of his intent to testify at a Prisoner Review Board hearing.

Matrisciano also states that he told members of the Board

in March of 2002 that he planned to testify at a hearing,

and that none objected. The hearing was rescheduled and

did not take place until December 17, 2002. After the

date was rescheduled, Matrisciano says that he again

informed Snyder and DeTella of his intent to testify at

a hearing. Although DeTella acknowledges that he

knew before the hearing that Matrisciano planned to

testify, Snyder maintains that he did not know until after

the fact. Matrisciano prepared a statement before his

testimony and had attorney Nancy Miller, the IDOC

Chief of the Bureau of Operations, review it. Most of the

information that Matrisciano used to prepare his state-

ment came from the inmate himself, and he also

gathered information from the case file and family mem-

bers.

At a meeting with Board members prior to the hearing

in question, DeTella told Board members including

the Chair that an Assistant Deputy Director would be

testifying before the Board concerning a high-profile case

and asked whether the Chair viewed that as a problem.

The Chair said she did not. On December 17, 2002,

Matrisciano took the day off from work as a personal

day and testified before the Board. He read his

prepared two and a half page statement, which began

with a description of the numerous capacities in which

he had served during his twenty-two years at IDOC,

including his current position as the Assistant Deputy

Director for District One. He noted that this testimony

No. 06-1599 5

marked the first time in his career that he had testified

in support of an offender’s release on parole and said

that he was doing so on behalf of Aleman because of

his “strong conviction” that Aleman posed no threat if

released. In addition, Matrisciano said that “[s]peaking in

[his] professional capacity,” he believed that Aleman

had been a model inmate, and that in his “professional

opinion, it would serve no penological purpose to incar-

cerate him further.” His statement ended by saying, “for

the first and only time in my professional career,

I appear before the Board and humbly request to grant

Harry Aleman his release to parole.” Matrisciano main-

tains that he also made comments that were not in his

prepared statement, namely that he told the Board that

he was not at the hearing in his capacity as the Assistant

Director. Nonetheless, he signed the statement, “Ronald

Matrisciano, Assistant Deputy Director, Illinois Depart-

ment of Corrections.”

Within the next few days, Matrisciano says that he

called Snyder and informed him he had testified before

the Board. On December 24, 2002, Snyder told DeTella

about media inquiries regarding Matrisciano’s testimony

and said that Matrisciano had “screwed up.” Snyder

directed DeTella to reassign Matrisciano to oversee the

final construction phases at the Stateville Reception and

Classification Center, which was not yet open and had

no inmates.

Matrisciano was reassigned to the Stateville facility on

December 27. He retained his job title and salary, but his

duties and responsibilities changed. He remained in this

6 No. 06-1599

position until IDOC laid him off on May 30, 2003 as part

of a department-wide restructuring that eliminated

Assistant Deputy Directors and their staff. Matrisciano

was eventually recalled from a layoff list but was

“locked out” pending an investigation concerning his

testimony before the Board. Matrisciano was placed on

paid administrative leave with full pay.

The district court granted the defendants’ motion

for summary judgment on Matrisciano’s claim of First

Amendment retaliation, and Matrisciano appeals.1 The

defendants’ brief on appeal notes that about three years

after Matrisciano’s testimony in front of the Board, state

court charges were brought against him alleging official

misconduct in connection with his testimony before

the Board and perjury during his deposition in this case.

After oral argument in this case, Matrisciano went to

trial and was found not guilty on all counts.

II. ANALYSIS

Matrisciano maintains that summary judgment should

not have been granted against him on his claim that the

defendants retaliated against him for engaging in

speech protected by the First Amendment. We review

the district court’s grant of summary judgment in the

1

The district court concluded that Matrisciano had abandoned

a claim that he should have been recalled earlier, and he does

not challenge that determination or argue for any injunctive

relief on appeal.

No. 06-1599 7

defendants’ favor de novo. Chaklos v. Stevens, 560 F.3d

705, 710 (7th Cir. 2009). Summary judgment is proper only

if “there is no genuine issue of material fact and the

moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

A. Qualified Immunity

The defendants contend, as they did in their request for

summary judgment in the district court, that summary

judgment was proper on the merits of the First Amend-

ment claim and also that they are entitled to qualified

immunity. Matrisciano argues that the defendants

should not be permitted to raise qualified immunity on

appeal because the district court did not address

qualified immunity in its order granting summary judg-

ment and the defendants did not file a cross appeal. As

support, he points to the rule that without a cross

appeal, an appellee may not “ ‘attack the decree with a

view either to enlarging his own rights thereunder or

of lessening the rights of his adversary, whether what he

seeks is to correct an error or to supplement the decree

with respect to a matter not dealt with below.’ ” United

States ex rel. Stachulak v. Coughlin, 520 F.2d 931, 937 (7th

Cir. 1975) (quoting United States v. Amer. Ry. Express

Co., 265 U.S. 425, 434 (1924)); see also Alejo v. Heller, 328

F.3d 930, 937 (7th Cir. 2003). The defendants are not

attempting to enlarge any rights beyond those conferred

by the district court’s grant of summary judgment in

their favor, however. Instead, their qualified immunity

argument is simply an alternative argument they make

8 No. 06-1599

for upholding the summary judgment decision. The

defendants argued that they were entitled to qualified

immunity in their memorandum in support of their

motion for summary judgment, so there is no question

that they may make this argument again on appeal. See

Stachulak, 520 F.2d at 937 (stating that without a cross

appeal, an appellee may argue in support of the judg-

ment any argument in the record, even if the lower

court ignored it); cf. Humphries v. CBOCS West, Inc., 474

F.3d 387, 391 n.1 (7th Cir. 2007) (noting some tension

in case law as to whether appellee who did not make a

particular argument in the district court could make it

for the first time on appeal).

Government officials performing discretionary func-

tions enjoy qualified immunity shielding them “ ‘from

liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.’ ” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The

Supreme Court has described qualified immunity as

balancing two interests—“the need to hold public officials

accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distrac-

tion, and liability when they perform their duties rea-

sonably.” Id. In its decision in Saucier v. Katz, 533 U.S.

194 (2001), the Supreme Court had mandated a two-step

analysis for courts to undertake when addressing claims

of qualified immunity. First, the court had to determine

whether a constitutional right had been violated under

the facts alleged or shown. See id. at 201; see also Chaklos,

No. 06-1599 9

560 F.3d at 711. If that hurdle was satisfied, the court

would next determine whether the particular right

was “clearly established” at the time of the alleged viola-

tion. See Saucier, 533 U.S. at 201. If the right was not

clearly established, qualified immunity applied. Id.

More recently, however, the Supreme Court has

decreed that the Saucier two-step sequence is no longer

mandatory. Pearson, 129 S. Ct. at 818. Instead, district and

appellate court judges can exercise their discretion to

determine which prong of the qualified immunity test

will be addressed first. See id. In this case, as we will

explain, we conclude that it was not clearly established

at the time of Matrisciano’s transfer that doing so

violated his First Amendment rights. Accordingly, the

defendants are entitled to qualified immunity.

B. First Amendment Retaliation

Although we ultimately decide this case on account of

the failure to meet the “clearly established” requirement,

some examination of the alleged constitutional right

that was violated is helpful in understanding whether

such a right was clearly established at the relevant

time. Matrisciano argues that the defendants retaliated

against him, in a manner contrary to the protections

guaranteed by the First Amendment, by reassigning him

after he testified before the Prisoner Review Board in

support of Aleman’s release. To establish a prima facie

case of retaliation under the First Amendment, a

plaintiff must show that: (1) his speech was constitution-

ally protected; (2) he suffered a deprivation likely

10 No. 06-1599

to deter free speech; and (3) the speech was at least a

motivating factor behind the adverse action. Massey v.

Johnson, 457 F.3d 711, 716 (7th Cir. 2006). The

defendants do not contest whether Matrisciano suffered

a deprivation likely to deter free speech.2

1. Motivating Factor

Viewing the evidence in the light most favorable to

Matrisciano as we must at this stage, there is sufficient

evidence in the record that the reassignment was at least

in part on account of Matrisciano’s testimony before

the Prisoner Review Board. There is evidence in the

record that a few days after the testimony, Director

Snyder telephoned Associate Director DeTella and told

him that Matrisciano had “screwed up” and that some-

thing had to be done. DeTella further stated that in the

days after Matrisciano’s testimony, Director Snyder told

him the media had been calling regarding Matrisciano’s

testimony and that Matrisciano would have to be disci-

2

A case brought under 42 U.S.C. § 1983 alleging First Amend-

ment retaliation does not require a plaintiff to show an “adverse

employment action.” Spiegla v. Hull, 371 F.3d 928 (7th Cir.

2004). Rather, any deprivation likely to deter free speech is

sufficient. Id. Here, the reassignment to a facility where no

inmates were housed, which DeTella considered a demotion,

suffices. See Miller v. Jones, 444 F.3d 929, 939 (7th Cir. 2006)

(prohibition on retaliation against public employees who

exercise First Amendment speech rights “extends to

retaliatory transfers to a less desired position”).

No. 06-1599 11

plined. Moreover, Snyder said in his deposition, “It’s not

every day that we have a high ranking official with the

Illinois Department of Corrections go and testify for a

mob hit man. And so I reassigned Mr.—Ron to the RNC at

Stateville.” A jury could find that the speech was a moti-

vating factor behind the reassignment.

2. Constitutionally Protected Speech

The next and larger question is whether Matrisciano’s

speech before the Board was constitutionally protected.

Public employees do not surrender all of their First

Amendment rights by accepting employment with the

government. See Pickering v. Bd. of Educ., 391 U.S. 563

(1968). Instead, the First Amendment protects a public

employee’s right, in certain circumstances, to speak as

a citizen about matters of public concern. Morales v.

Jones, 494 F.3d 590, 595 (7th Cir. 2007). Whether the First

Amendment protects the speech is a question of law

that we review de novo. Williams v. Seniff, 342 F.3d 774,

782 (7th Cir. 2003).

a. Speaking as citizen on matter of public concern

If a public employee does not speak as a “citizen,” the

First Amendment does not protect that speech. See

Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008). As

a result, an inquiry often arises into whether an em-

ployee spoke as a citizen. The Supreme Court has ex-

plained that “when public employees make statements

pursuant to their official duties, the employees are not

12 No. 06-1599

speaking as citizens for First Amendment purposes, and

the Constitution does not insulate their communications

from employer discipline.” Garcetti v. Ceballos, 547 U.S.

410, 421 (2006) (emphasis added); see also Spiegla, 481

F.3d at 966. Matrisciano voluntarily testified before

the Board on a day that he took off from work. His job

description does not hint at voluntary testimony before

the Board. In short, we find no evidence that Matrisciano

spoke to the Board pursuant to his official duties, and

the defendants do not argue otherwise. Cf. Fairley v.

Fearmint, 482 F.3d 897, 902 (7th Cir. 2007) (rejecting argu-

ment that jail guard’s testimony during inmate’s

lawsuit constituted speech made pursuant to guard’s

official duties and stating that “[a]ssistance to prisoners

and their lawyers in litigation is not part of a guard’s

official duties.”). The next step in the analysis would be

whether Matrisciano spoke on a matter of public concern,

as speech that serves only a private or personal interest

does not receive First Amendment protection. See

Houskins, 549 F.3d at 491-92. The defendants do not

contest the public concern requirement, however, and

we will proceed under the assumption that it has been met.

b. Policy-maker corollary

A weighing of interests sometimes referred to as

“Pickering balancing” often follows a determination that a

public employee spoke on a matter of public concern. See

Pickering v. Bd. of Educ., 391 U.S. 563 (1968); see also, e.g.,

Chaklos, 560 F.3d at 714. Drawing on principles established

in political patronage cases, however, we have said that

No. 06-1599 13

the First Amendment “does not prohibit the discharge of

a policy-making employee when that individual has

engaged in speech on a matter of public concern in a

manner that is critical of superiors or their stated

policies.” Vargas-Harrison v. Racine Unified School Dist.,

272 F.3d 964, 971 (7th Cir. 2001). We have not limited

this “policy-maker corollary” to instances where the

plaintiff’s political views led to the adverse action. See id.;

Warzon v. Drew, 60 F.3d 1234 (7th Cir. 1995); Wilbur v.

Mahan, 3 F.3d 214, 218 (7th Cir. 1993) (“The exception

recognized in the patronage cases for sensitive em-

ployees . . . retains its force in cases that have nothing

directly to do with patronage or party affiliation.”).

The defendants argue that the “policy-maker corollary”

we discussed in Vargas-Harrison applies here, and the

district court agreed. We have set forth two require-

ments for the corollary to apply. First, the employee

must have occupied a policy-making position. See Vargas-

Harrison, 272 F.3d at 972. If so, his speech must have

been of the kind that falls within the scope of the corollary.

See id.

An employee occupies a policy-making position when

the position “ ‘authorizes, either directly or indirectly,

meaningful input into government decisionmaking on

issues where there is room for principled disagreement

on goals or their implementation.’ ” Vargas-Harrison, 272

F.3d at 972 (quoting Nekolny v. Painter, 653 F.2d 1164, 1170

(7th Cir. 1981)); see also Fuest v. Clarke, 454 F.3d 770 (7th

Cir. 2006). A reliable job description can aid in this deter-

mination. See Riley v. Blagojevich, 425 F.3d 357, 361 (7th

14 No. 06-1599

Cir. 2005). During the relevant time period, Matrisciano

held the position of Assistant Deputy Director in the

Illinois Department of Corrections. In this role, Matrisciano

supervised wardens and assistant wardens. Notably, we

have already held that both positions constitute policy-

making positions, see Pierson v. Blagojevich, 437 F.3d 587,

588 (7th Cir. 2006) (wardens); Riley, 425 F.3d at 365 (assis-

tant wardens), and it would seem odd for a policy-maker’s

supervisor not to qualify as a policy-maker himself.

Moreover, the Assistant Deputy Director job description

lists responsibilities including: “[r]eviews and audits

policies, programs and management practices; makes

recommendations regarding changes”; and “develops

policies and procedures regarding program area.” Al-

though Matrisciano and DeTella may not have viewed

Matrisciano as a policy-maker, we have little trouble

concluding that the Assistant Deputy Director position

was one that fit that description as the term is used in

cases such as Vargas-Harrison.

The next question is whether the speech at issue falls

within the scope of the policy-making corollary. See Vargas-

Harrison, 272 F.3d at 972. We have stated that the policy-

maker corollary “ ‘does not apply, and the courts must

apply Pickering balancing, when the speech at issue does

not implicate the employee’s politics or substantive

policy viewpoints.’ ” Id. at 973 (citing Bonds v. Milwaukee

County, 207 F.3d 969, 979 (7th Cir. 2000)). When a “policy-

maker’s speech creates a conflict with the policy stance

of his superiors, the effects on government are ‘acute.’ ” Id.

However, “speech unrelated to job duties or political

No. 06-1599 15

viewpoint runs too remote from the interests that

animate the exception.” Bonds, 207 F.3d at 979.

The defendants maintain that Matrisciano’s speech

implicated substantive policy viewpoints. (We left open

the question of whether an employer may terminate a

policy-making employee for any speech without running

afoul of the First Amendment, Vargas-Harrison, 272 F.3d

at 973, and the defendants do not go that far here.) In

this case, however, Matrisciano’s testimony did not

criticize Department of Corrections policy, nor did he

criticize any of his superiors. The Department does not

profess to have a policy of opposing the release of all

inmates, and the defendants do not point to any

evidence in the record suggesting that the Department

had a policy of opposing the release of this particular

inmate. So although Matrisciano was a policy-maker, we

cannot find that his speech falls within the scope of the

policy-maker corollary we discussed in Vargas-Harrison.

c. Pickering balancing

Although we agree with Matrisciano that the policy-

maker corollary does not apply, that does not mean that

he is home free. “The government is entitled to restrict

speech that addresses a matter of public concern ‘if it

can prove that the interest of the employee as a citizen

in commenting on the matter is outweighed by the

interest of the government employer in promoting

effective and efficient public service.’ ” Chaklos, 560 F.3d

at 714 (quoting McGreal v. Ostrov, 368 F.3d 657, 675-76

16 No. 06-1599

(7th Cir. 2004)). When conducting the “Pickering balancing”

of the interests of the employee, as a citizen, in comment-

ing upon matters of public concern against the interests

of the State, as an employer, in promoting efficient

services of its employees, we consider the following

factors:

(1) whether the statement would create problems in

maintaining discipline by immediate supervisors or

harmony among co-workers; (2) whether the employ-

ment relationship is one in which personal loyalty

and confidence are necessary; (3) whether the

speech impeded the employee’s ability to perform her

daily responsibilities; (4) the time, place, and manner

of the speech; (5) the context in which the underlying

dispute arose; (6) whether the matter was one on

which debate was vital to informed decisionmaking;

and (7) whether the speaker should be regarded

as a member of the general public.

Kiddy-Brown v. Blagojevich, 408 F.3d 346, 358 n.7 (7th

Cir. 2005).

Unfortunately, Matrisciano’s briefs emphasize that the

district court erred when it found the policy-maker corol-

lary applied and do not develop an argument as to

the balancing of interests. And there are competing inter-

ests at stake here. On the one hand, at the time Matrisciano

testified, no written policy prohibited Department of

Corrections employees from testifying at Prisoner

Review Board hearings. Viewing the evidence in the

record in the light most favorable to Matrisciano and

drawing all reasonable inference therefrom, as we must,

No. 06-1599 17

superiors at the Department of Corrections knew at least

that Matrisciano would testify before the Prisoner

Review Board, even if he did not tell them it was on

Aleman’s behalf. (The evidence Matrisciano points to in

the record contains assertions that Matrisciano told

Snyder and DeTella in advance that he planned to

testify before the Board, but they do not state that he

gave them Aleman’s name.)

It might seem, then, that faced with a touchy situation,

Matrisciano did what an employer would want its em-

ployees to do—he talked to his supervisors. We have

commended employees before for attempting to proceed

through internal channels. See Hulbert v. Wilhelm, 120 F.3d

648, 654 (7th Cir. 1997). And after a principal gave prior

approval to a classroom speaker but then fired the

teacher when the speaker’s visit resulted in parent com-

plaints, the Sixth Circuit stated: “While ordinarily we

would give substantial weight to the government em-

ployer’s concerns of workplace efficiency, harmony, and

discipline in conducting our balancing of the employee’s

and employer’s competing interests, we cannot allow

these concerns to tilt the Pickering scale in favor of the

government, absent other evidence, when the disruptive

consequences of the employee speech can be traced back

to the government’s express decision permitting the

employee to engage in the speech.” Cockrel v. Shelby County

School Dist., 270 F.3d 1036, 1054-55 (6th Cir. 2001); see

also Evans-Marshall v. Bd. of Educ. of Tipp City, 428 F.3d

223, 231-32 (6th Cir. 2005) (allegations that teacher

fired after public outcry over pre-approved books and

material sufficient to state claim for protected First Amend-

18 No. 06-1599

ment activity under Pickering); Victor v. McElveen, 150

F.3d 451 (5th Cir. 1998) (interests of police department in

maintaining harmony and efficiency did not outweigh

deputy’s right to speak where sheriff gave officer prior

assurance he could speak without fear of recrimination).

But see Boring v. Buncombe Cty. Bd. of Educ., 136 F.3d 364

(4th Cir. 1998) (en banc) (affirming dismissal of teacher’s

First Amendment complaint after she was disciplined

for having students perform certain play even though

she had given principal prior notice of play’s name).

It is also true that Department of Corrections em-

ployees may have information relevant and helpful to

the parole determination. We have recognized before that

prison guards may be particularly helpful to a parole

board, as “ ‘it is the guards who have daily contact with

[the inmate] and therefore can realistically assess his

person.’ ” See Hall v. Washington, 106 F.3d 742, 752 (7th Cir.

1997) (quoting Shimer v. Washington, 100 F.3d 506, 508 (7th

Cir. 1996)). Matrisciano had some contact with Aleman

while Aleman was in custody, but he did not have the

quantity or type of contact with Aleman as did the prison

guards discussed in Hall and Shimer. Matrisciano, then

Deputy Chief of Parole, first met Aleman when he had

been assigned to assure Aleman’s safety when he was

transferred from the federal prison system to the

Illinois Department of Corrections in July of 2000. He

subsequently visited the Joliet facility two to three times

per month to speak with inmates about their concerns

regarding the facility, and he says that he met with

Aleman during these visits for the six months Aleman

remained at Joliet. Unlike a prison guard who observes

No. 06-1599 19

inmates on a daily basis, in their normal routines,

Matrisciano only visited occasionally and for a particular

reason—to hear the inmates express concerns about the

facility. And by the time Matrisciano testified before

the Board in December 2002, it had been two years since

the Joliet visits.

Moreover, the defendants contend that the testimony

of a high-ranking Department of Corrections official at

t h e p a r o le h e a rin g of a n ot oriou s p ris o n e r

calls Matrisciano’s judgment into question, and that the

Department has an interest in ensuring that its Director

has confidence in its high-level employees. Cf. United

States v. Miss. Valley Generating Co., 364 U.S. 520, 562

(1961) (“[A] democracy is effective only if the people

have faith in those who govern, and that faith is bound

to be shattered when high officials and their

appointees engage in activities which arouse suspicions

of malfeasance and corruption.”). The testimony here

marked the first time in Matrisciano’s twenty-two years

with the Department of Corrections that he had testified

at a Prisoner Review Board hearing. This testimony

concerned not just any inmate, but rather the infamous

Harry Aleman, acquitted of murder thirty years earlier

after bribing a judge. And the testimony urging release

also came only ten years into Aleman’s 100-300 year

sentence. The State has legitimate reason to suggest that

in light of these circumstances, observers including

other IDOC employees could wonder whether

Matrisciano’s motives for testifying were pure.

Also of note is that Matrisciano spoke voluntarily

before the Prisoner Review Board. He did not make his

20 No. 06-1599

statement pursuant to a subpoena. Cf. 730 ILCS 5/3-3-2(f)

(“The Board or one who has allegedly violated the condi-

tions of his parole or mandatory supervised release may

require by subpoena the attendance and testimony of

witnesses and the production of documentary evidence

relating to any matter under investigation or hearing.”);

Wright v. Ill. Dep’t of Children & Family Servs., 40 F.3d 1492,

1505 (7th Cir. 1994) (“[S]urely an employee summoned

to give sworn testimony in a judicial proceeding has a

compelling interest in testifying truthfully and the gov-

ernment employer can have an offsetting interest in

preventing her from doing so only in the rarest of cases.”).

Rather, he spoke voluntarily, and not just about what

he had observed, either—he explicitly requested that

the Board release Aleman.

And although the government does not receive the

benefit of the “policy-maker corollary,” Matrisciano’s

status as a high level Department of Corrections official

is still relevant in the Pickering balancing analysis.

“When public employees offer their opinions in roles

as representatives or employees of the government, the

government’s interest as an employer is greater than if

the speech comes divorced from the employment context,

and the second prong of Pickering should honor that

enhanced interest; however, the employee’s speech may

qualify as speech by a citizen on a public concern under

the first prong of Pickering nonetheless.” Bonds, 207 F.3d

at 980. Matrisciano signed the statement with his official

title and said that in his “professional capacity,” he be-

lieved Aleman had been a model inmate, as well as that

in his “professional opinion,” he did not believe further

incarceration would yield any penological purpose.

No. 06-1599 21

All of this goes to show that there are considerations

on both sides of the Pickering equation, and that the

circumstances in this case are unique. As we said, we

do not have the benefit of adversarial briefing on the

question of whether the government’s interests outweigh

the interests of the employee in this case, which is one

reason we are not inclined to decide whether

Matrisciano’s First Amendment rights were infringed

here. See Pearson, 129 S. Ct. at 820 (stating that “[t]he

lower courts sometimes encounter cases in which the

briefing of constitutional questions is . . . inadequate” and

noting that resolving constitutional questions in such

circumstances can lead to poor decisionmaking).

The more significant reason that we turn to the

clearly established prong is that we conclude no clearly

established right was violated at the time of the reassign-

ment. “For a constitutional right to be clearly estab-

lished, its ‘contours must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right.’ ” Hope v. Pelzer, 536 U.S. 730, 739

(2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). “This is not to say that an official action is pro-

tected by qualified immunity unless the very action in

question has previously been held unlawful; but it is to

say that in the light of pre-existing law the unlawfulness

must be apparent.” Id. (quoting Anderson, 483 U.S. at 640)

(internal citation omitted). In these particular circum-

stances, the law at the time was not such that reasonable

officials would know that transferring Matrisciano

after his testimony before the Board was unlawful.

22 No. 06-1599

The Supreme Court has emphasized that the qualified

immunity inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposi-

tion.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting

Saucier, 533 U.S. at 206). In Brosseau, the Court reversed

an appellate court determination that “general tests” set

forth in the Court’s Fourth Amendment jurisprudence

gave officials fair warning that their conduct was unlaw-

ful. Id. at 199. The Court made clear that the general tests

were not enough to give fair warning, nor was it an

“obvious case” where general standards clearly estab-

lished the answer without developed case law. See id.

This is also not an obvious case. Aleman was an infa-

mous prisoner known to have bribed a government official,

and an Assistant Deputy Director in the Department of

Corrections voluntarily made his first Prisoner Review

Board comments on behalf of that inmate, without any

special knowledge of the inmate’s daily behavior in

custody. None of the cases to which Matrisciano points

put the defendants on notice that reassigning him as a

result of this testimony violated the Constitution.

Matrisciano emphasizes our decision in Shimer v. Wash-

ington, 100 F.3d 506 (7th Cir. 1996), but that case does not

help him. First, we did not find a constitutional violation

in Shimer. Instead, we concluded that the record presented

material questions of fact as to whether the Department

of Corrections’ unwritten policy against allowing em-

ployees to testify before the Board was reasonably related

to a legitimate penological interest. Id. at 510. We also

emphasized the daily contact prison guards have with

No. 06-1599 23

inmates and suggested that as a result, guards might be

in a position to present a realistic assessment of an

inmate to the Board. Id. at 508. Here, even putting aside

that Matrisciano’s role was not one of daily interaction

with inmates, the important point is that we did not rule

in Shimer that the Department’s policy violated the

First Amendment. The other decision to which he

points, Hall v. Washington, 106 F.3d 742, 752 (7th Cir. 1997),

quotes Shimer for the proposition that guards with daily

contact with inmates can realistically assess them, but it

is not a First Amendment case itself. Neither case makes

it apparent that the action here was unlawful.

Nor does the “prior approval” line of cases that we

discussed demonstrate that the violation of a constitu-

tional right was clearly established. First, the teachers

and sheriff’s deputy in those cases were lower-level

employees, so they do not make apparent what action

an employer cannot take against a high-level employee

in whom trust and sound judgment are especially im-

portant. See Bonds, 207 F.3d at 981 (finding decision to

rescind offer of policy-making position did not violate

First Amendment where plaintiff’s speech had under-

mined plaintiff’s credibility and embarrassed employer).

Significantly too, the evidence on which Matrisciano

relies does not suggest that Snyder, or even DeTella,

approved what would be said at the hearing. Instead,

the evidence to which Matrisciano points reflects that

under his version of the circumstances, at best, he told

them he planned to testify at a Board hearing. Because

the violation of a constitutional right was not clearly

established at the relevant time, the defendants are

entitled to qualified immunity.

24 No. 06-1599

III. CONCLUSION

For the foregoing reasons, the grant of summary judg-

ment in favor of the defendants is AFFIRMED.

6-26-09