Petition for Writ of Certiorari — Fermaint v. Fairley (No. 06-1685)

Supreme Court brief2007

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In the OFFICE UF THE CLERK

Supreme Court of the United States

EVAN FERMAINT, Officer

NOBERTO BERCASIO, Officer, and

FRED COFFEY, Officer,

Petitioners,

ROGER FAIRLEY,

and REICHARD GACKOWSKI,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Terry E. Johnson

Counsel of Record

Daniel P. Duffy

PETERSON JOHNSON

& MURRAY, S.C.

30 North LaSalle Street, Suite 2900

Chicago, IL 60602

(312) 782-7150

Counsel for Petitioners

June 18, 2007

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED

1. Under Johnson v. Jones, 515 U.S. 304, 115 S. Ct.

2151, 132 L.Ed.2d 238 (1995), is an appellate court

precluded from reviewing the record on an interlocutory

appeal in a qualified immunity case?

2. At the time of the alleged harassment, was the law

“clearly established” that one co-equal, public employee could

be held liable on Constitutional grounds for harassing another

co-equal public employee?

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list identifies all

of the parties appearing here and before the United States

Court of Appeals for the Seventh Circuit.

The petitioners here and appellants below are Evan

Fermaint, Noberto Bercasio, and Fred Coffey.

The respondents here and appellees below are Roger

Fairley and Richard Gackowski.

The following parties were defendants in the district court

action but did not participate in the appeal to the United States

Court of Appeals for the Seventh Circuit: Dennis Andrews,

Edward Byrne, Patrick Loizon, Ronald Prohaska, Gregory

Ernst, Saul Weinstein, Tim Kaufmann, Gabriel Ochoa, Juan

Diaz, Michael Sheahan, and Cook County.

TABLE OF CONTENTS

Page

ON yg Beg gO og) a a rr Pa i

PARTS 1) TUG PROCES oes il

Te SOE) ROAR cs i ee ea weet vi

SP ERE eho hi ge hae ew eos ]

PC RIE co wk ewe eae es CRS ees ]

CONSTITUTIONAL AND STATUTORY PROVISIONS

I ek eh en ek ee ea |

IE as es es a a ee 2

h.. RUE COS a 2

ee re ee Pe eee ee 7

REASONS FOR GRANTING THE PETITION ...... 10

I. Johnson v. Jones Does Not Stand for the

Proposition that an Appellate Court Is Precluded

from Reviewing the Record on an Interlocutory

Appeal in a Qualified Immunity Case and the

Seventh Circuit’s Decision to Ignore the Record Is

in Conflict with Behrens v. Pelletier ........ 10

II. It has not been “Clearly Established” in the

Seventh Circuit, or any other Circuit, that it is

Legally Possible for One, Co-Equal, Employee to

“Deprive” Another, Co-Equal, Employee of His

or Her Constitutional Rights and Defendants are,

therefore, Entitled to Qualified Immunity. ... . .

A. A Conflict Exists Among the Circuits

Involving Public Employment First

Amendment Retaliation Cases...........

B. The Seventh Circuit Has Yet to Conclusively

Resolve Whether The “Adverse Employment

Action” Standard or The “Reasonably Likely

To Deter” Standard is the Appropriate

Standard to Apply to a Public Employer’s

Actions For Purposes of a First Amendment

on eer rere rere ee

C. A State Employee Cannot be Said to be

“Acting Under Color Of State Law” When

Interacting With Other Co-Equal State

Employees Unless He or She is Explicitly

Acting Pursuant to Powers Conferred by the

ee ee ee ae ee ere ee re eS Pe

CPR 6 ot oe OL on ae ae whee be aeceS

APPENDIX

Appendix A: March 19, 2007 Order of the court of

appeals granting rehearing and denying rehearing en

er Pat ae ERP on Rnd ia SR ee eee Se See

Appendix B: March 19, 2007, Opinion of the court of

appeals in affirmation on rehearing ............

Appendix C: December 20, 2006, Opinion of the

ee GT Beer eee eee ee Sa

Appendix D- May 4, 2006, Memorandum Opinion

and Order of Wie district court .............. 28a

Appendix E: May 4, 2006, Notification of Docket

Entry in the district court ............. i ao

TABLE OF AUTHORITIES

Cases: Page(s)

Acosta-Orozco v. Rodriquez-de-Rivera,

SG Lg ge oA Sar arr ere ee 18

Alvarado v. Litscher,

S67 FSA OORT Cae: BOON)... ws ook Ke ek 2, i>

Banks v. East Baton Rouge Parish School Board,

SIF SES OT 55. oe a 18

Bart v. Telford,

677 F.2d 622 (7th Cir.1982) ........ [7 28. 39s

Behrens v. Pelletier,

516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d

I SE ae Od aK aa ee Bee a Cee ee a 10

Bunting v. Mellen,

541 U.S. 1019, _—, 124 S.Ct. 1750 2004) ....... 15

Burlington Industries, Inc. v. Ellerth,

524 U.S. 742, 760, 118 S.Ct. 2257, 141 L.Ed.2d 633

So 2 is a eee B1, oh; 20

Burlington Northern and Santa Fe Ry. Co. v. White,

U.S. , 126 S.Ct. 2405, 165 L.Ed.2d 345

Burns v. Reed,

Oa re a oe ek wk ee eae 16

Vil

Casteel v. Pieschek,

Se Pee Ce 6k ok 6 dR Rd Oe 16

Connick v. Myers,

461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708

SEE. ew Vb Se RK eae ee eee eee 7

Dahm y. Flynn,

bak aoe Ee ae. | areas ae 23

DeGuiseppe v. Village of Bellwood,

Cae ae” Ce: FOO) oc ce Ses ees 16, 18, 19

Fairley v. Andrews,

430 F.Supp.2d 786 (N.D.IIl. 2004) ........... 8

Fairley v. Andrews,

600 F.Supp. 660 (N.D.IH. 2004). ............ 7

Fairley v. Fermaint,

At F6 Ga Cree CH. Be ek ee tee ees 8

Fairley v. Fermaint,

S66 3:20 Ge? Cet CM. DOG oo 6 Es TEES 9

Garcetti v. Ceballos,

547 U.S. _, 126 S.Ct. 1951, 164 L.Ed.2d

ee 5s ool Bowe ey ae es Oe ee eee 9, 22

Gomez v. Toledo,

446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572

5s 6 ls oe ee 15

Harlow v. Fitzgerald,

OFF Ue BOO on ks a ee eee eee 16

Vill

Hudgens v. NLRB,

424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196

Te igre Bese eG ks bk kd wae 23

Hughes v. Halifax County School Bd.,

855 F.2d 183 (4th Cir.1988), cert. denied, 488 U.S.

1042, 109 S.Ct. 867, 102 L.Ed.2d 991 (1989) .... 23

Jacobs v. City of Chicago,

ee OP OR 12

Johnson v. Jones,

515 U.S. 304, 115 S. Ct. 2151, 132 L.Ed.2d 238

RE de in gg aw a be ae ok 9, 10, 11

Lansing v. City of Memphis,

meee eee oe Ge. 2000) 2 ww ee 23

Martinez v. Colon,

EE oe SE |: ) 24, 25

McGill v. Board of Education,

ewe erat? CWAGTS) 2... wk eee 19, 20

McKinney v. Duplain,

ep mee ye Cit Gal, 2000) 2... ca 11

Meyers v. Starke,

pee ee pete Com, 2S)... we ee 18

Mosely v. Board of Educ. of City of Chicago,

Seer .oe oa? (7? Cir, 2006) ............. 17, 18

Pickering v. Board of Education,

391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811

cc ees a ek ea eee ee 16, 20

Pieczynski v. Duffy,

S75: F.2d 1331 (7th Cir. 1969) ......... 17, 18, 22

Powers v. Summers,

726 F MOIST Ce. TOD)... vi eo ek ee 17, 18

Sallenger v. Oakes,

FOF ae Tak CI, BOTT wk eae be 11

Saucier v. Katz,

533 U.S. 194, 121 S.Ct. 215, 150 L.Ed.2d 272

CR tL bepte aie a eae ae ea ee 15

Scott v. Harris,

Via, tet a. See, ee

Screws v. U.S.,

325 U.S. 91, 111, 65 S.Ct. 1031, 1040 (1945) .... 25

Stavropoulos v. Firestone,

562 TSEC Cie. DO) oe ie es 18

Toeller v. Wisconsin Department of Corrections,

BOt FS Sie Cree Oe ASRS 9

Via v. LaGrand,

aGe F356 Gre Cre GH. Be). svn hee wees. 11

Statutes and Rules

Se Oe ED ioe a ee ek ee eee ee 1

PRN EGE. 6 oe le oe bee nee Se ee ee J

yi > ae Ye inp Coed wee ate Oe a aa 1

EU 0 Uw dae bw a weds oS ee cee abe passim

Other Materials

Bohn, Elizabeth J., Put On Your Coat, A Chill Wind Blows:

Embracing the Expansion of the Adverse Employment Action

Factor In Tenth Circuit First Amendment Retaliation Claims,

ao ey US. E.. eee: ee Ce se a eee 17

Rosalie Berger Levinson, Superimposing Title VII's Adverse

Action Requirement on First Amendment Retaliation Claims:

A Chilling Prospect for Government Employee Speech, 79

FOL. B; REY. OOF, CO Cd on ho os ee ee ease 17

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 3a-14a)

on rehearing is reported at 482 F.3d 897. The opinion of the

court of appeals (App., infra, 1Sa-27a) is reported at 471 F.3d

826. The opinion of the district court (App., infra, 28a-65a)

is reported at 430 F.Supp.2d 786.

JURISDICTION

The district court had jurisdiction of this case under 28

U.S.C. § 1331. The court of appeals had jurisdiction to

review the district court’s order under 28 U.S.C. § 1292.

The court of appeals’ judgment was entered on December 20,

2006. A timely petition for rehearing was granted on March

19, 2007. (App., infra, la-2a) However, the petition for

rehearing en banc was denied. /d. The court of appeals’

judgment on rehearing was entered March 19, 2007. The

jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment provides, in relevant part:

“Congress shall make no law . . . abridging the freedom of

Title 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress... .

STATEMENT

Respondents allege violation of their First Amendment

right to free speech and seek redress pursuant to 42 U.S.C.

§1983.

I. Factual Background

Plaintiffs, Roger Fairley and Richard Gackowski, were

formerly employed as correctional officers at the Cook

County Department of Corrections. (R. 447-1) Petitioners

Evan Fermaint and Noberto Bercasio were, at all times

material to this suit, correctional officers at the CCDOC.

Petitioner Fred Coffey was a correctional officer at the

CCDOC from Augusi 7, 1995 to November 15, 2002. (R.

455-1)

During their respective periods of employment with the

CCDOC Fairley and Gackowski were equal in rank to

Fermaint, Bercasio, and Coffey. Fairley, Gackowski,

Fermaint, and Bercasio were all assigned to the same shift in

Division I of the jail from approximately 1998 to July 2002.

Coffey was assigned outside of Division I during the year

2001.

The CCDOC General Orders require correctional officers

to report misconduct by other officers. Both Fairley and

Gackowski were trained to report misconduct by other

officers in accordance with the General Orders.

Fairley and Gackowski both claim to have been harassed

by Fermaint, Bercasio, and Coffey while on duty at the

CCDOC. (R. 257-1) They both ascribe the motive for the

harassment as their having been witness to officer-on-inmate

violence. Fairley and Gackowski point to three alleged

specific instances:

a. Fairley claims that in “late 1998 or early 1999" he

saw Coffey “forearm” an inmate’s head into a

steel plate wall. Afterwards, Fairley alleges that

Coffey called him a “snitch” and threatened to

“beat him up.”

b. Gackowski claims to have witnessed Coffey “beating”

a different inmate in April of 2000. According to

Gackowski, he yelled at Coffey during the beating and

told Coffey not to include him as a witness in his

report. Gackowski ciaimed that Coffey subsequently

told him that he was not “part of the team.” After

April 2000, Gackowski testified that Fermaint started

calling him a “snitch.” Gackowski further testified

that, subsequent to April 2000, Coffey, Fermaint, and

Bercasio each started calling Gackowski a “social

worker.”

c. Last, Fairley claims he witnessed Fermaint and

Bercasio “beating” various inmates during an

altercation on July 29, 2000 in SI-2.' Fairley told

' “SI-2" is an abbreviation for “Special Incarceration Unit 2,” and

is a section of the Cook County Jail complex housed within

Gackowski and other correctional officers about the

July 29, 2000 beating he claimed to have witnessed.

Gackowski did not witness any of the events on July

29, 2000 in SI-2 because he was assigned that day to

a different division of the jail complex. Gackowski

did not see any officers use excessive force, act

inappropriately, or engage in any misconduct on July

29, 2000.

Fairley and Gackowski place the most stock in the last of

these incidents. After the SI-2 Incident, various inmates filed

a lawsuit in state court known as the “Fields Litigation,”

which named Fermaint and Bercasio, among others, as

defendants. Gackowski testified that he told correctional

officer Rodriguez that he was “going to tell the truth” about

the SI-2 Incident. Similarly, Fairley told a number of

correctional officers that he was “not going to lie” about the

SI-2 Incident. Neither Gackowski nor Fairley told Fermaint,

Bercasio, or Coffey that he was going to tell the truth

concerning the SI-2 Incident. (R. 455)

Fairley testified that Fermaint harassed him by refusing to

provide enough lunches and other supplies for the SI-2

inmates, which caused the inmates to become irate and yell at

Fairley. Fairley also testified that Fermaint and Bercasio

would physically grab him by the waist and imitate

intercourse and otherwise harass him by failing to unlock the

security door to the SI-2 Unit to allow Fairley to use the

restroom and calling him an “inmate lover.” Gackowski also

testified that from late 2000 through May or June 2002,

Division I where high profile detainees are housed. The July 29,

2000 altercation has been referred to throughout this litigation as

the “SI-2 Incident.”

Bercasio and Fermaint physically grabbed him by the waist

and imitated intercourse. Bercasio also drew cartoons of

GackowskIi.

In June of 2002, Gackowski told Internal Affairs that he

was being harassed. And on July 9, 2002, Gackowski

submitted a written complaint to Inte:nal Affairs (IAD)

alleging that he had been the subject of harassment by his

fellow correctional officers, including Fermaint, Bercasio,

and approximately a dozen others. The July 9, 2002

complaint made no reference to the SI-2 Incident or any other

incident of alleged inmate abuse.

Gackowski was interviewed by Internal Affairs as a result

of his complaint. During the course of his interview,

Gackowski identified officers who had harassed him ~ among

them Fermaint and Bercasio - and described the harassment

as including physical grabbing, sexually suggestive cartoons,

and degrading and sexual comments about his wife.

Gackowski told the interviewer that he believed he had been

singled out for harassment because he did not “smack inmates

around for no reason.”

On July 23, 2002, Gackowski was transferred to Division

Vill, a different division of the jail complex. On July 24,

2002, Gackowski filed a charge of discrimination with the

U.S. Equal Employment Opportunity Commission alleging he

had been discriminated against “because of my sex, male

”

While in Division VIII from July 23, 2002 to November

9, 2002, Gackowski did not experience any form of

harassment. On October 10, 2002, Gackowski “bid”

pursuant to collective bargaining rules to be transferred back

to Division |. On November 10, 2002, pursuant to his

request, Gackowski was moved back to Division I. From

November 10, 2002 to January 8, 2003, Gackowski did not

report any claims of harassment to IAD.

On January 9, 2003, Gackowski submitted a written

complaint to IAD. On January 10, 2003, Gackowski was

offered a transfer to anywhere on the jail compound.

Gackowski declined the transfer offer and informed IAD

investigators that he was leaving the CCDOC.

Coffey left the CCDOC in November 2002. (R. 447-1)

Neither Fairley nor Gackowski have had any contact with

Coffey since he left the CCDOC. (R. 448) Fermaint bid out

of Division I in November 2002. (R. 447-1)

Fairley was involved in an altercation with an inmate on

December 20, 2002, (R. 447-1) He theorizes that one or

more of the defendants to the suit provoked the inmate to

attack him. (R. 553-1) The States Attorney’s Office never

brought criminal charges against the inmate for his assault on

Fairley. (R. 447-1)

Fairley last worked a shift at the CCDOC in January

2003. (R. 553-1) Gackowski worked his last shift in January

2003. (/d.) Both Fairley and Gackowski then used all of

their vacation and sick days and tendered their resignations

after that time was exhausted on February 3, 2003. (/d.)

From the time he started to the day he left, Fairley never

submitted a written complaint to IAD claiming that he was the

subject of harassment. (R. 447-1) Nor did he ever submit a

written complaint concerning inmate abuse. (/d.)

Fairley sat for a deposition in the Fields case on three

occasions, the first occasion being after his last day on the job

at the CCDOC. (R. 553-1) Gackowski sat for the first

session of his deposition in the Fields case after his

resignation from the CCDOC. (R. 448) No one at the

CCDOC did anything to prevent either Fairley or Gackowski

from testifying on their appointed days. (R. 447-1)

The two appeared at a press conference in February 2003

after tendering their resignations.

On July 25, 2003, Fairley and Gackowski filed the

underlying lawsuit. (R. 1)

The Fields case was tried in May and June of 2005. (R.

240) Both Fairley and Gackowski testified for the plaintiffs.

(R. 462-1, R. 465-1) A jury returned a verdict in favor of all

of the defendant correctional officers, including Fermaint and

Bercasio, after deliberating for less than one hour. (R. 420)

II. Proceedings Below

Respondents filed a five count Complaint on July 25, 2003

naming thirteen individual defendants as well as Cook

County. On October 16, 2003, petitioners moved to dismiss

respondents’ complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). One of the arguments raised in the

Motion to Dismiss was based on qualified immunity. The

District Court denied the motion. See Fairley v. Andrews,

600 F.Supp. 660 (N.D.IIl. 2004). Petitioners then submitted

to an exhaustive discovery process.

Near the conclusion of discovery, all defendants excepting

Cook County filed Motions for Summary Judgment.

Respondents voluntarily dismissed a count alleging state law

claims of intentional infliction of emotional distress in the face

of the Motion for Summary Judgment. One of the defendants,

Correctional Officer Gabriel Ochoa - who was named only in

the intentional infliction of emotional distress count - was

voluntarily dismissed on respondents’ motion.

On May 4, 2006, the District Court entered a

Memorandum Opinion and Order (App., infra, 28a-65a)

denying the motion on legal grounds, specifically declining to

“revisit” the District Court’s earlier ruling relative to

qualified immunity. See Fairley v. Andrews, 430 F.Supp.2d

786, 797 (N.D.II1. 2004).

Petitioners filed a notice of appeal on May 18, 2006,

seeking appellate review of the District Court’s denial of their

Motion on qualified immunity grounds.

The sole surviving count of respondents’ Second Amended

Complaint complains of “harassment,” ascribing the

motivation for the “harassment” to “retaliation deliberately

aimed at silencing the Plaintiffs and thwarting their attempts

to report and testify on matters of the State’s interest and of

public concern.” (R. 257-1)

Specifically, the Complaint alleges that Fairley and

Gackowski “made known to their fellow officers that they

would tell the truth if asked about what they had seen or

heard” regarding a July 29, 2000 altercation between officers

and inmates known as “the SI-2 Incident” that resulted in a

lawsuit. And that “[{t]hereafter the Defendants engaged in a

series of deliberate actions to discourage Plaintiffs Fairley and

Gackowski from attending depositions and from testifying or

talking freely, fully and truthfully about the SI-2 Incident.”

On December 20, 2006, the Seventh Circuit dismissed the

appeal for want of jurisdiction. Fairley v. Fermaint, 471 F.3d

826, 829 (7th Cir. 2006). On March 19, 2007, the court

granted petitioners’ request for panel rehearing and issued a

second decision. Fairley v. Fermaint, 482 F.3d 897 (7th Cir.

2007). Quoting Toeller v. Wisconsin Department of

Corrections, 461 F.3d 871, 873-74 (7th Cir. 2006), the court

concluded that it did have jurisdiction to address the merits of

the appeal. /d. at 901. However, the court ultimately

affirmed the District Court’s decision, stating that issues

regarding whether petitioners engaged in the conduct of which

respondents accused them, and whether they did it to retaliate

for respondents’ constitutionally protected speech, were

questions that should be resolved at trial. /d. at 904.

While acknowledging that the allegations concerning

retaliation for the alleged work-related speech were barred by

this court’s holding in Garcetti v. Ceballos, 126 S.Ct. 1951

(2006), the panel held that the suit could proceed to trial in

order to determine if the retaliation arose from “testimony

that plaintiffs gave in inmates’ suits.” The panel declined to

review the record in order to resolve the question, citing

Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132

L.Ed.2d 238 (1995), for the proposition that such review was

“not allowed”:

Piecing out the state of the record, and drawing

inferences from the evidence, is not allowed on an

interlocutory appeal based on a claim of immunity.

Fairley v. Fermaint 482 F.3d at 902. The court went on to

hold that the arguments raised on interlocutory appeal could

be made on appeal from the final judgment. /d. at 904.

(Citation omitted).

REASONS FOR GRANTING THE PETITION

I. Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151,

132 L.Ed.2d 238 (1995), Does Not Stand for the

Proposition that an Appellate Court Is Precluded

from Reviewing the Record on an Interlocutory

Appeal in a Qualified Immunity Case and the

Seventh Circuit’s Decision to Ignore the Record Is

in Conflict with Behrens v. Pelletier, 516 U.S. 299,

312, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)

In Johnson v. Jones, 515 U.S. 304, 311-12, 115 S.Ct.

2151, 132 L.Ed.2d 238 (1995), this Court found that a district

court’s denial of a qualified immunity was an appealable final

decision to the extent it turned on an issue of Jaw. The term

following, in Behrens v. Pelletier, 516 U.S. 299, 312, 116

S.Ct. 834, 133 L.Ed.2d 773 (1996), this Court clarified its

holding in Johnson — expressly rejecting the argument that the

existence of an issue of fact foreclosed interlocutory appeal:

[Rjespondent asserts that appeal of denial of the

summary-judgment motion is not available because the

denial rested on the ground that “[mlJatcrial issues of

fact remain.” This, he contends, renders the denial

unappealable under last Term’s decision in Johnson v.

Jones, 515 U.S., at 313-318, 115 S.Ct., at 2156-2158.

That is a misreading of the case. Denial of summary

judgment often includes a determination that there are

controverted issues of material fact, see *313 Fed.

Rule Civ. Proc. 56, and Johnson surely does not mean

that every such denial of summary judgment is

nonappealable. Johnson held, simply, _ that

determinations of evidentiary sufficiency at summary

judgment are not immediately appealable merely

because they happen to arise in a qualified-immunity

case; if what is at issue in the sufficiency

determination is nothing more than whether the

evidence could support a finding that particular

conduct occurred, the question decided is not truly

“separable” from the plaintiff's claim, and hence there

is no “final decision” under Cohen and Mitchell. See

515 U.S., at 313-318, 115 S.Ct., at 2156-2158.

Johnson reaffirmed that summary judgment

determinations are appealable when they resolve a

dispute concerning an “abstract issu[e] of law”

relating to qualified immunity, id., at 317, 115 S.Ct.,

at 2158-typically, the issue whether the federal right

allegedly infringed was “clearly established,” see,

e.g., Mitchell, supra, at 530-535, 105 S.Ct., at 2817-

2820; Davis v. Scherer, 468 U.S. 183, 190-193, 104

S.Ct. 3012, 3017-3019, 82 L.Ed.2d 139 (1984).

In holding that a review of the record on appeal is “not

allowed,” the Seventh Circuit has interpreted Johnson in such

a way as to create an impossible standard that movants for

summary judgment in qualified immunity cases must meet on

interlocutory appeal: that to the extent an analysis of qualified

immunity turns on any fact (regardless of whether the district

court found there to be an genuine issue with regard to that

fact), the issue is not subject to review because the record

cannot be reviewed on appeal. See Sallenger v. Oakes, 473

F.3d 731 (7th Cir. 2007) (defendant appealing denial of

motion for summary judgment in qualified immunity case

must accept district court’s finding of facts in order for

Seventh Circuit to have jurisdiction to hear appeal); Via v.

LaGrand, 469 F.3d 618 (7th Cir. 2006)(discussing Johnson

and McKinney); and McKinney v. Duplain, 463 F.3d 679

(7th Cir. 2006) (court concluded that it could not review the

record to determine whether it supported the district court’s

conclusion that a genuine issue of fact existed as to whether

the suspect charged a police officer before he was fired upon).

The Seventh Circuit’s approach cannot be harmonized

with its earlier decisions expressly discouraging appeals of

adverse decisions on Rule 12(b)(6) motions based in qualified

immunity. See Jacobs v. City of Chicago, 215 F.3d 758, 775

(7" Cir. 2000) (“Rule 12(b)(6) is a mismatch for immunity

and almost always a bad ground of dismissal... summary

judgment is the right way to handle claims of immunity.”

Easterbrook, J., concurring.); See also Alvarado v. Litscher,

267 F.3d 648, 651 (7" Cir. 2001).

Neither can the Seventh Circuit’s approach be squared

with the practice of this Court. In Scott v. Harris, __ US.

__, 127 S.Ct. 1769, —-L.Ed.2d —_— (2007), decided this

term, the Court conducted an extensive review of a videotape

included in the record in considering whether, consistent with

the Fourth Amendment, an officer could take actions placing

a “fleeing motorist at risk of serious injury or death in order

to stop the motorist’s flight from endangering the lives of

innocent bystanders.” Scott, 127 S.Ct. at 1772.

[T]he Court of Appeals adopted respondent’s

assertions that, during the chase, “there was little, if

any, actual threat to pedestrians or other motorists, as

the roads were mostly empty and [respondent]

remained in control of his vehicle.” 433 F.3d, at

The videotape tells quite a different story. There we

see respondent’s vehicle racing down narrow, two-

lane roads in the dead of night at speeds that are

shockingly fast. We see it swerve around more than a

dozen other cars, cross the double-yellow line, and

force cars traveling in both directions to their

respective shoulders to avoid being hit. We see it run

multiple red lights and travel for considerable periods

of time in the occasional center left-turn-only lane,

chased by numerous police cars forced to engage in

the same hazardous maneuvers just to keep up. Far

from being the cautious and controlled driver the

lower court depicts, what we see on the video more

closely resembles a Hollywood-style car chase of the

most frightcning sort, placing police officers and

innocent bystanders alike at great risk of serious

injury.

At the summary judgment stage, facts must be viewed

in the light most favorable to the nonmoving party

only if there is a “genuine” dispute as to those facts.

Fed. Rule Civ. Proc. 56(c). As we have emphasized,

“[w]hen the moving party has carried its burden under

Rule 56(c), its opponent must do more than simply

show that there is some metaphysical doubt as to the

material facts .... Where the record taken as a whole

could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’

“ Matsushita Elec. Industrial Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89

L.Ed.2d 538 (1986) (footnote omitted). “[T]he mere

existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986). When opposing

parties tell two different stories, one of which is

blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling

on a motion for summary judgment.

That was the case here with regard to the factual issue

whether respondent was driving in such fashion as to

endanger human life. Respondent’s version of events

is so utterly discredited by the record that no

reasonable jury could have believed him. The Court of

Appeals should not have relied on such visible fiction;

it should have viewed the facts in the light depicted by

the videotape.

Id. at 1775-76 (footnotes omitted).

Here, while the Seventh Circuit held the suit could

proceed to trial in order to determine if the alleged retaliation

arose from “testimony that plaintiffs gave in inmates’ suits,”

the panel declined to review the record in order to resolve the

question. In point of fact, there is no evidence in the record

— competent or otherwise - to suggest that petitioners were in

any way aware of respondents’ “assistance to prisoners and

their lawyers in litigation.” Moreover, there is no evidence

in the record to suggest either of the respondents did anything

to assist any inmates’ attorneys at any point that pre-dates any

of the allegations of “harassment.”

II. It has not been “Clearly Established” in the

Seventh Circuit, or any other Circuit, that it is

Legally Possible for One, Co-Equal, Employee to

“Deprive” Another, Co-Equal, Employee of His or

Her Constitutional Rights and Defendants are,

therefore, Entitled to Qualified Immunity.

Section 1983 permits a cause of action for the deprivation

of a right secured by the Constitution by someone acting

under color of state law. There are, broadly speaking, two

elements to any such claim: (1) the deprivation of a right

secured by the Constitution; and (2) that the deprivation

occurred “under color of state law.” See Alvarado v.

Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (quoting Gomez

v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d

572 (1980)). As a matter of law, neither element can be

established as against petitioners, respondents’ former co-

workers.

A. A Conflict Exists Among the Circuits Involving

Public Employment First Amendment Retaliation

Cases.

The U.S. Supreme Court “has established a mandatory

order of priority for resolution of the two standard issues”

relative to resolving the question of qualified immunity.

Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750, 1753

(2004) (Scalia, J., dissenting) (citing Saucier v. Katz, 533

U.S. 194, 201, 121 S.Ct. 215, 150 L.Ed.2d 272 (2001)). “A

court must ask, first, whether the facts alleged show the

officer’s conduct violated a constitutional right; if so, the

next, sequential step is to resolve the qualified-immunity

claim by asking whether the right was clearly established.”

Id. (quoting, in part, Saucier v. Katz, supra.)(internal

quotation marks omitted) “The requisites of a qualified

immunity defense must be considered in proper sequence.”

Id. (quoting Saucier v. Katz, supra, at 200, 121 S.Ct. 2151)

(emphasis added).

Under the second step of the qualified immunity analysis

required by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct.

215, 150 L.Ed.2d 272 (2001), a government official is

shielded from liability for damages when his or her conduct

does not violate “clearly established” statutory or

constitutional rights of which a reasonable person would have

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

A proper qualified immunity analysis requires that the

constitutional right “be identified in a particularized sense

with respect to the circumstances of the alleged violation.”

Burns v. Reed, 44 F.3d 524 (7" Cir.1995). In order to

demonstrate that the right was “clearly established” the

plaintiff must offer “a closely analogous case or evidence that

the defendants’ conduct is so patently violative of the

constitutional right that reasonable officials would know

without guidance from the courts.” Id. [citing Casteel v.

Pieschek, 3 F.3d 1050, 1053 (7" Cir.1993).]

Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.

1731, 20 L.Ed.2d 811 (1968) established that a public

employer cannot terminate one of its employees in retaliation

for an exercise of that employee’s First Amendment rights on

a matter of public concern. Since Pickering, a large body of

case law has developed expanding and expounding upon each

of the rule’s component parts - foremost among them: Does

the rule apply to an employer’s actions short of termination?

Over the ‘past twenty-seven years, First Amendment

retaliation cases in the Seventh Circuit can be categorized in

one of three ways:

(1) those cases holding that an “adverse employment

action” is an element of plaintiff's proof; See e.g. DeGuiseppe

v. Village of Bellwood, F.3d 187, 192 (7" Cir. 1995)

(2) those cases which that make actionable even “trivial

annoyances” provided they rise to the level of an “effective

deterrent to the exercise of First Amendment rights.” See

e.g. Bart v. Telford, 677 F.2d 622 (7th Cir. 1982); Pieczynski

v. Duffy, 875 F.2d 1331 (7th Cir. 1989); and

(3) cases seeking to harmonize the approaches of

categories (1) and (2). See e.g. Powers v. Summers, 226 F.3d

815, 820 (7" Cir. 2000); Mosely v. Board of Educ. of City of

Chicago, 434 F.3d 527 (7" Cir. 2006).

No case in any of the lines has, however, held that one

employee could be liable on Constitutional grounds for

harassing another, co-equal, employee. And this must be true

for at least two closely-related reasons, both of which are

cemented in the basic principle that only the government can

deprive a citizen of rights conferred by the Constitution:

First, co-employees cannot usually interact with one another

in such a way that one employee is acting - relative to

another, co-equal empioyee - as the alter ego of the

government employer. And second, co-employees do not act

“under color of state law” when interacting with one another.

The decision in the underlying case extends the 7"

Circuit’s public employment First Amendment retaliation

jurisprudence further than that of any other Circuit -

effectively permitting any public employee to be potentially

liabie for anything “likely to deter” another public employee’s

“exercise of free speech.”

And the holding serves to further highlight a split in

authority among the Circuits where public employment First

Amendment retaliation cases are involved. See Bohn,

Elizabeth J., Put On Your Coat, A Chill Wind Blows:

Embracing the Expansion of the Adverse Employment Action

Factor In Tenth Circuit First Amendment Retaliation Claims,

83 Denv. U. L. Rev. 867 (2006); Rosalie Berger Levinson,

Superimposing Title VII's Adverse Action Requirement on

First Amendment Retaliation Claims: A Chilling Prospect for

Government Employee Speech, 79 TUL. L. REV. 669, 694

(2005).

Four Circuits - the First, Fifth, Eighth and Eleventh -

explicitly limit public employment First Amendment

retaliation cases to those involving some type of a “materially

adverse change” in the terms or conditions of employment.

See e.g. Acosta-Orozco v. Rodriquez-de-Rivera, 132 F.3d 97,

101 n. 5 (1* Cir. 1997) [“unreasonably inferior” test]; Banks

v. East Baton Rouge Parish School Board, 320 F.3d 570, 580

(5" Cir. 2003) [“adverse employment action”}; Meyers v.

Starke, 420 F.3d 738, 744 (8 Cir. 2005) [{“adverse

employment action”]; Stavropoulos v. Firestone, 361 F.3d

610, 619 (11" Cir. 2004) [action affecting “important

condition of employment” J.

Unlike those four Circuits, Seventh Circuit jurisprudence

is unmoored to any consistent standard. See e.g. Bart v.

Telford, 677 F.2d 622 (7th Cir.1982); [“campaign of petty

harassments” may be actionable under Section 1983];

Pieczynski_ v. Duffy, 875 F.2d 1331 (7th Cir.1989)

{“Harassment of a public employee for his political beliefs

violates the First Amendment unless the harassment is so

trivial that a person of ordinary firmness would not be

deterred from holding or expressing those beliefs”]

DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 192 (7th

Cir. 1995) [holding that an “adverse employment action” is

an element of plaintiff's proof in the context of a First

Amendment retaliation claim]; Powers v. Summers, 226 F.3d

815, 820 (7th Cir. 2000) [defining “adverse employment

action” in terms of the Bart v. Telford/Peicynski v. Duffy

test]; Mosely v. Board of Educ. of City of Chicago, 434 F.3d

527 (7th Cir. 2006) [same].

The limitation imposed by an express requirement that the

plaintiff demonstrate a “materially adverse change” in the

terms or conditions of employment has two effects beneficial

to the administration of these types of claims: (1) it

necessarily limits the pool of defendants to those who can

affect conditions of employment (i.e. supervisory personnel);

and (2) it imposes some limitation on the scope of the cause

of action beyond that currently imposed in the Seventh Circuit

- the outer contours of which are delineated only be the legal

maxim de minimis non curat lex. See Bart v. Telford, 677

F.2d 622, 625 (7th Cir.1982).

It is axiomatic that only the government can deprive a

citizen of rights conferred by the Constitution. And one

public employee without the authority to affect the terms and

conditions of another public employee’s employment cannot

be said to “violate” the second public employee’s First

Amendment rights no matter whatever he or she does.

Hundreds of thousands of public employees reside within the

confines of the Seventh Circuit. And the holding in Fairley,

in combination with the Seventh Circuit’s standard-less First

Amendment retaliation jurisprudence, has the potential to

inundate the federal courts with, quite literally, thousands

upon thousands of employee-versus-employee claims.

B. The Seventh Circuit Has Yet to Conclusively

Resolve Whether The “Adverse Employment

Action” Standard or The “Reasonably Likely To

Deter” Standard is the Appropriate Standard to

Apply to a Public Employer’s Actions For Purposes

of a First Amendment Retaliation Claim.

The “adverse employment action” element found in

DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 192 (7"

Cir. 1995) and others would seem to have its roots in McGill

20.

v. Board of Education, 602 F.2d 774 (7" Cir.1979), a case in

which the Seventh Circuit extended Pickering’s holding - that

a public employee could not be terminated for exercising his

First Amendment rights —- beyond termination to a “retaliatory

transfer. McGill held that the standard to be applied to such

cases was “whether protected speech” was the motivating

factor “for the adverse action...” McGill 602 F.2d at 779

(emphasis added). The unstated logic underlying the

requirement would seem to lie in further extending, by

analogy, Pickering’s termination requirement to “adverse

action[s]” affecting public employment.

Another way of explaining the “adverse employment

action” construct is as a means of establishing a government

employer’s vicarious liability for the wrongful retaliatory

actions - specifically by way of the “aided in the agency

relation” rule found in Section 219(2){d) of the Restatement

(Second) of Agency. This “aided in the agency relation”

framework was settled upon by the Court in Burlington

Industries, Inc. v. Elierth, 524 U.S. 742, 118 S.Ct. 2257

(1998), as a means of explaining the closely analogous

“tangible employment action” in a Title VII context:

When a party seeks to impose vicarious liability based

on an agent’s misuse of delegated authority, the

Restatement’s aided in the agency relation rule... .

appears to be the appropriate form of analysis.

... Inasense, most workplace tortfeasors are aided

in accomplishing their tortuous objective by the

existence of the agency relation: Proximity and

regular contact may afford a captive pool of potential

victims. Were this to satisfy the aided in the agency

relation standard, an employer would be subject to

vicarious liability not only for all supervisor

harassment, but also for all co-worker harassment, a

result enforced by neither the EEOC nor any court of

appeals to have considered the issue. The aided in the

agency relation standard, therefore, requires the

existence of something more than the employment

relation itself.

At the outset, we can identify a class of cases where,

beyond question, more than the mere existence of the

employment relation aids in commission of the

harassment: where a supervisor takes a tangible

employment action against the subordinate. Every

Federal Court of Appeals to have considered the

question has found vicarious liability when a

discriminatory act results in a tangible employment

action. Although few courts have elaborated how

agency principles support this rule, we think it reflects

a correct application of the aided in the agency

relation standard.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 760, 118

S.Ct. 2257, 141 L.Ed.2d 633 (1998).

As the Ellerth Court made clear, only supervisors are in

position to take the types of actions that would bind the

employer under the Restatement analysis:

When a supervisor makes a tangible employment

decision, there is assurance the injury could not have

been inflicted absent the agency relation. . . . As a

general proposition, only a supervisor, or other

person acting with the authority of the [employer], can

cause this sort of injury. A co-worker can break a co-

worker’s arm as easily as a supervisor, and anyone

who has regular contact with an employee can inflict

psychological injuries by his or her offensive conduct.

But one co-worker (absent some elaborate scheme)

cannot dock another’s pay, nor can one co-worker

demote another. Tangible employment actions fall

within the special province of the supervisor.

Burlington Industries, Inc. v. Ellerth, 524 U.S. at 761-62

(emphasis added).

Practically, the situation has been no different in the

Seventh Circuit even in the sécond category of cases that do

not reference “adverse employment actions.” So in Bart v.

Telford, 677 F.2d 622 (7th Cir.1982), it was of undoubted

legal significance (though unanalyzed in the opinion) that the

allegation at issue was that it was the Mayor of Springfield

who “orchestrated a campaign of petty harassments” against

the plaintiff, a subordinate employee who had endorsed an

opposition candidate to succeed the current officeholder (after

dropping out of the race herself). And in Pieczynski v.

Duffy, 875 F.2d 1331 (7th Cir.1989), it was Pieczynski’s

superiors, retaliating against her because of her 10th Ward

political background, who removed her long distance line and

denied her vacation requests (among other things).

Application of the proper test has been confused further

still by this Court’s decision in Garcetti v. Ceballos, supra,

- which speaks of an “adverse employment action” as an

element of a §1983 retaliation claim - coupled with this

Court’s decision to adopt — three weeks later - the competing

“reasonably likely to deter” standard as the appropriate test

for Jitle VII retaliation claims. Burlington Northern and

Santa Fe Ry. Co. v. White, U.S. __, 126 S.Ct. 2405, 165

L.Ed.2d 345 (2006).

Qualified immunity dictates that government employees

“not become prey to every hypothesis of what the law might

have come to forbid had it eventually developed along certain

lines.” Dahm y. Flynn, 60 F.3d 253, 261(7th Cir. 1994)

(Easterbrook, J. dissenting). All this flux means that the

Seventh Circuit, or another, will eventually hold that fellow

employees are potentially liable to one another on

Constitutional grounds is indiscernible at this point. This case

presents a significant opportunity for this Court to resolve the

instability in the law surrounding this issue.

C. A State Employee Cannot be Said to be “Acting

Under Color Of State Law” When Interacting With

Other Co-Equal State Employees Unless He or She

is Explicitly Acting Pursuant to Powers Conferred

by the State.

“(T]he constitutional guarantee of free speech is a

guarantee only against abridgment by government, federal or

state.” Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47

L.Ed.2d 196 (1976). A private actor acting on his or her own

cannot deprive a citizen of First Amendment rights. See

Lansing v. City of Memphis, 202 F.3d 821, 828 (6" Cir.

2000).

The Seventh Circuit’s decision in Fairley effectively

ignores the distinction between private action and action under

color of state law. A result which is in conflict with decisions

of at least two other Circuits.

The Fourth Circuit distinguished private harassment

between fellow government employees in Hughes v. Halifax

County School Bd., 855 ¥.2d 183 (4th Cir.1988), cert.

denied, 488 U.S. 1042, 109 S.Ct. 867, 102 L.Ed.2d 991

(1989), a case involving county workers who staged a mock

hanging of plaintiff in alleged retaliation for plaintiff's

participation in a grand jury inquiry of the school board.

There, plaintiff argued that “he was assaulted, battered, and

subjected to intentional emotional distress under color of state

law because he was accosted by county employees with

retaliation in their eyes, on county land, with a county-owned

rope, during work hours.” The court concluded that

harassment by fellow school district employees was not

“under color of law” because defendants did not purport to

act under authority vested in them by the state. The Fourth

Circuit cautioned against a broad reading of “state action”

where “any employee of any state who commits a tort has

potentially violated §1983 ... [w]e cannot endorse this result.”

855 F.2d at 186.

The First Circuit arrived at the same conclusion in

Martinez v. Colon, 54 F.3d 980, 986 (1" Cir. 1995). In

Martinez, a police officer sued various of his fellow officers

after another fellow officer accidentally discharged his

firearm, maiming him. Entering summary judgment on the

constitutional claims, the First Circuit held that the plaintiff

had not produced any evidence tending to show that the

plaintiff's tormentor, when brandishing the firearm, was

exercising or purporting to exercise police power:

Here, the record is transpicuously clear that

throughout the course of Martinez’ ordeal Valentin did

not exercise, Or purport to exercise, any power (real

or pretended) possessed by virtue of state law. To the

contrary, Valentin was bent on a singularly personal

frolic: tormenting an acquaintance. Though on duty

and in uniform, Valentin’s status as a police officer

simply did not enter into his benighted harassment of

his fellow officer. Hazing of this sort, though

reprehensible, is not action under color or pretense of

law.

[Had the plaintiff] been a civilian rather than a fellow

officer, the significance of [defendant officer’s]

uniform and weapon for purposes of the color-of-law

determination might well have been greater. But

when the victim is himself a fellow officer and the

particular interaction between the two officers is of a

distinctively personal nature, it can generally be

assumed that the aggressor’s official trappings,

without more, will not lead the victim to believe that

the aggressor in acting with the imprimatur of the state

and, in turn, to forgo exercising legal rights.

Martinez, 54 F.3d at 987-88 n. 6:

“[W |hether a police officer is acting under color of state

law turns on the nature and circumstances of the officer’s

conduct and the relationship of that conduct to the

performance of his official duties.” Martinez v. Colon, 54

F.3d 980, 986 (1" Cir. 1995). “The key determinant is

whether the actor, at the time in question, purposes to act in

an official capacity or to exercise official responsibilities

pursuant to state law.” /d. Acting “under ‘color’ of law

means under ‘pretense’ of law.” Screws v. U.S., 325 U.S.

91, 111, 65 S.Ct. 1031, 1040 (1945). And “acts of officers

in the ambit of their personal pursuits are plainly excluded.”

Screws, 325 U.S. at 111, 65 S.Ct. at 1040.

The harassment at issue is wholly unrelated to the

performance of the defendant officers’ duties as state

employees. The Petitioners would have been just as capable

of the sexually-related “harassment;” drawing cartoons of

Gackowski or calling Fairley names if they were all

employees at a local McDonalds. The complained of

interactions arise merely from proximity - not any type of

state-conferred powers. By their very nature, they are

“private acts” rather than acts taken “under color of state

law.” Consequently, it cannot be said to have been “clearly

established” that petitioners, co-equal employees, were

potentially subject to suit under §1983.

CONCLUSION

For all the reasons set forth herein, the Petitioners

respectfully request that the petition for a writ of certiorari be

granted.

TERRY E. JOHNSON

Counsel of Record

DANIEL P. DUFFY

PETERSON JOHNSON & MURRAY, S.C.

30 North LaSalle Street, Suite 2900

Chicago, Illinois 60602

(312) 782-7150

, Counsel for Petitioners

June 18, 2007

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 06-2411

[Filed March 19, 2007]

ROGER FAIRLEY and RICHARD

GACKOWSKI,

Plaintiffs-Appellees,

VAN FERMAINT, NORBERTO

BERCASIO, and FRED COFFEY,

)

V. )

)

Defendants-Appellants. )

)

Appeal from the United States District Court

for the Northern District of llinois, Eastern Division.

No. 03 C 5207.

Amy J. St. Eve, Judge.

Before Hon. FRANK H. EASTERBROOK, Chief Judge,

Hon. RICHARD A. POSNER, Circuit Judge, Hon. DIANE

P. WOOD, Circuit Judge.

ORDER

Defendants-appellants filed a petition for rehearing and

rehearing en banc on January 3, 2007. All of the judges on

the panel have voted to grant rehearing and an opinion is

issued contemporaneously with this order. However, the

petition for rehearing en banc” is DENIED.

" Judge Flaum did not participate in the consideration of this matter.

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 06-2411

{Filed March 19, 2007]

ROGER FAIRLEY and RICHARD

GACKOWSKI,

Plaintiffs-Appellees,

Vv,

EVAN FERMAINT, NOBERTO

BERCASIO, and FRED COFFEY,

)

Defendants-Appellants. )

)

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 03 C 5207—Amy J. St. Eve, Judge.

ARGUED NOVEMBER 7, 2006—

DECIDED DECEMBER 20, 2006

ON REHEARING DECIDED MARCH 19, 2007

Before EASTERBROOK, Chief Judge, and POSNER and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. Two former guards at Cook

County Jail contend in this suit under 42 U.S.C. §1983 that

some of their ex-colleagues violated the Constitution’s first

amendment (applied to state actors via the fourteenth) by

vilifying and assaulting them because they stood up for

inmates’ rights. According to the complaint, the defendants

and their confederates bully and ostracize any guard who

plays by the rules; these strong arm tactics organize and

protect guards who beat inmates at whim and then lie about

their activities to their superiors, criminal investigators, and

judges in any suits that the prisoners may file. Plaintiffs’

allegations may or may not be true; this litigation has not

reached the point at which a judge or jury sifts fact from

fiction.

Defendants moved for summary judgment on the ground

of official immunity, and they have appealed from the order

denying this motion. Despite its interlocutory character, such

an order is appealable. But there is a wrinkle: defendants

asked the court to dismiss the complaint two years ago, before

discovery commenced, and did not appeal from the adverse

decision. They reply that Behrens v. Pelletier, 516 U.S. 299

(1996), allows successive interlocutory appeals at the

complaint and summary judgment stages, so it must logically

allow defendants to forego appeal at the complaint stage and

save their arguments for summary judgment.

Our initial decision in this case, 471 F.3d 826 (2006),

dismissed the appeal for want of jurisdiction. Relying on

Garvin v. Wheeler, 304 F.3d 628, 632-33 (7th Cir. 2002),

and the principle that the time for appeal cannot be extended

by seeking reconsideration of a district court’s order after the

30 days has lapsed, see Charles v. Daley, 799 F.2d 343, 347-

48 (7th Cir. 1986), we concluded that the defendants’ appeal

was untimely. They could have appealed from the order

denying their motion to dismiss the complaint. When they

failed to appeal from that decision, and then filed a motion for

summary judgment reiterating arguments that the district court

already had rejected, they were just attempting to extend the

time for appeal, we held. Our opinion implied some doubt

about the wisdom and scope of the decision in Garvin but

observed that defendants had not asked us to revisit the

subject, so we took circuit law as we found it.

Defendants’ petition for rehearing, with the support of

multiple amici curiae, has asked us to take a fresh look at the

subject. The request is not one we can dispatch with the

observation that it comes too late, for defendants’ position

turns out to have the support of language in 7Joeller v.

Wisconsin Department of Corrections, 461 F.3d 871, 873-74

(7th Cir. 2006), a decision that none of the parties cited to us

and that we did not consider independently. In dealing with an

interlocutory appeal that had been taken to assert a form of

sovereign immunity, 7oeller had this to say:

WDOC argues that this court has jurisdiction over the

district court’s order rejecting its defense, noting that

it is established that “States . . . may take advantage

of the collateral order doctrine to appeal a district

court order denying a claim of Eleventh Amendment

immunity.” Nanda v. Bd. of Trs. of Univ. of Ill., 303

F.3d 817, 821 (7th Cir. 2002) (quoting Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506

U.S. 139, 147 (1993)). Toeller acknowledges this

rule, but he argues that WDOC failed to file its notice

of appeal within the time permitted by Fed. R. App.

P. 4(a)—a step that is also required before this court

may entertain the appeal.

Toeller’s position, however, rests on the mistaken

premise that WDOC had one and only one opportunity

to take an interlocutory appeal on this issue. He

believes that this opportunity arose after the district

court’s initial denial of the State’s motion to dismiss,

which was docketed on December 23, 2003. But

Behrens v. Pelletier, 516 U.S. 299 (1999), held to the

contrary, in the closely-related area of interlocutory

appeals from denials of motions to dismiss on

qualified immunity grounds. See id. at 307. We see no

reason why the rationale of Behrens should not apply

with equal force to interlocutory appeals of Eleventh

Amendment immunity claims. From that standpoint,

WDOC’s notice of appeal easily satisfied Rule 4(a).

The district court denied WDOC’s motion for

summary judgment (which included its renewed

Eleventh Amendment defense) on September 29,

2005, and the State filed its notice of appeal

comfortably within the 30-day period allowed by the

rule, on October 17, 2005. We conclude that we have

jurisdiction over this appeal and thus may proceed to

the merits.

This passage says that, when Behrens allows an appeal

from both a decision denying a motion to dismiss a complaint

and a decision denying a motion for summary judgment, the

litigant’s appeal from the latter decision cannot be rejected as

an effort to extend the time to appeal from the former.

Just as our decision neglected Toeller, so the panel in

Toeller did not mention Garvin. Perhaps it did not need to do

so: unless the motions to dismiss and for summary judgment

in TJoeller were materially identical, then Garvin (as our panel

understood it) did not foreclose appeal from the denial of

summary judgment. A material difference between the

arguments made in the two stages is not, however, the ground

on which Toeller resolved the appeal. The stated rationales of

Garvin, Toeller, and the decision in this appeal are not

compatible. We need to bring harmony to the law of the

circuit, and to do so it is best to return to first principles. We

grant the petition for rehearing and proceed to decide this

appeal anew.

Mitchell v. Forsyth, 472 U.S. 511 (1985), held that a

defendant who claims qualified immunity is entitled to take an

interlocutory appeal. Mitchell used the approach of Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which

held that a decision is “final” (and thus appealable under 28

U.S.C. §1291) when it conclusively resolves an important

question that cannot be reviewed on appeal at the litigation’s

end. The Court concluded in Mitchell that qualified immunity

gives the defendant a right not only to prevail but also to

avoid entanglement in the litigation—sometimes dubbed a

“right not to be tried,” this entitlement includes a right to

avoid discovery if matters are sufficiently clear at the outset

of the suit. Behrens held that Mitchell logically implies a right

to appeal from either or both of an order refusing to dismiss

the complaint and an order denying a public official’s motion

for summary judgment, because each of these orders can

“conclusively resolve” an aspect of the qualified immunity

right: an order refusing to dismiss the complaint conclusively

rejects a defendant’s claim of freedom from discovery, and an

order denying a motion for summary judgment conclusively

rejects a defendant’s claim of freedom from trial. Each of

these decisions is “final” in the Cohen-Mitchell framework,

and §1291 allows the aggrieved party to appeal from every

final decision.

Once a “final” decision has been made, the clock for

filing a notice of appeal begins to run. It stops if a motion for

reconsideration is filed while time for appeal remains, see

United States v. Dieter, 429 U.S. 6 (1976) (holding that this

principle applies even if the order is interlocutory and no rule

specifically authorizes a motion for reconsideration), and

Starts anew once such a motion is denied. Fed. R. App. P.

4(a)(4). A motion for reconsideration filed outside the time

for appeal (or otherwise provided by rule for such a motion),

or a successive motion for reconsideration, does not affect the

time for appeal or reopen the window. See Charles v. Daley,

supra. When there are two “final” decisions in a case, the

time runs independently from each. This would be clear

enough if the first “final” decision were an order denying a

motion to dismiss the complaint, and the second were the final

decision after a trial. It is no less true when (as a result of

Behrens) multiple “final decisions” precede the single “final

judgment.” This is what Toeller said—correctly, we conclude.

Garvin could have been decided as a simple application of

these principles. The district court denied a public official’s

motion for summary judgment. After the time for appeal had

expired, defendant asked the district court to reconsider and

appealed from the order denying that motion. Instead of

applying the rule that an untimely motion for reconsideration

never extends or reopens the time for appeal, however, the

panel in Garvin stated that a motion making new legal or

factual arguments might reopen the time—but that because no

new arguments had been advanced in that case, the appeal

must be dismissed. That analysis led us to ask whether the

appellants in our case had made new arguments and, finding

that they had not, to dismiss their appeal. But the search for

new arguments is unsound. Once a final decision has been

made, and the time for appeal (or an authorized motion to

reconsider) has expired, it does not matter what arguments the

litigant adduces. The window for appeal cannot be reopened.

The right inquiry under Mitchell and Behrens is what the

court has done, not what arguments the litigant has made.

Once the judge has conclusively denied a motion to dismiss

the complaint or grant summary judgment, the time for appeal

begins to run. A tentative decision, by contrast, is not “final”

and does not start the time for appeal; the defendant is free to

make new arguments (or reiterate old ones) without

jeopardizing the opportunity to appeal once the district judge

turns the tentative resolution into a conclusive one. To the

extent that Garvin made appellate jurisdiction turn on the

arguments presented fo the judge, rather than the sort of

decision made by the judge, it is disapproved.’ We now hold,

in accord with Behrens and Toeller, that a public official may

appeal from an order conclusively denying a motion (based on

qualified immunity) seeking summary judgment, whether or

not the official has appealed from an order denying a motion

to dismiss the complaint, and whether or not the motion for

summary judgment rests on new legal or factual arguments.

But once a conclusive resolution has been reached at either

stage, a renewed motion for the same relief, or a belated

request for reconsideration, does not reopen the time for

appeal. Accord, Robbins v. Wilkie,433 F.3d 755, 762-63

(10th Cir. 2006); Vega v. Miller, 273 F.3d 460, 465-66 (2d

Cir. 2001); Grant v. Pittsburgh, 98 F.3d 116, 120 (3d Cir.

1996).

This conclusion relieves public officials from any pressure

to take what may be premature appeals from orders declining

" This opinion has been circulated to all active judges under Circuit

Rule 40(e). No judge requested a hearing en banc on the question

whether to change the legal analysis employed in Garvin. Circuit

Judge Flaum did not participate in the consideration or decision of

this case.

10a

to dismiss complaints. See Jacobs v. Chicago, 215 F.3d 758,

765 n.3 (7th Cir. 2000), id. at 775 (concurring opinion);

McMath v. Gary, 976 F.2d 1026, 1031 (7th Cir. 1992). It

also operates mechanically, a desirable feature in any

jurisdictional rule. See Budinich v. Becton Dickinson & Co..,

486 U.S. 196, 202 (1988) (“The time of appealability, having

jurisdictional consequences, should above all be clear.”).

Garvin and our initial opinion could send litigants and judges

on a tour of the record to determine whether and when a

public official is entitled to appeal. How much preferable it is

to have a rule that can be applied using only a copy of the

district court’s decision and a calendar.

Our conclusion that this appeal is timely does not mean,

however, that the defendants are home free. Defendants’

principal argument relies on Garcetti v. Ceballos, 126 S. Ct.

1951 (2006), which holds that, “when public employees make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and

the Constitution does not insulate their communications from

employer discipline.” /d. at 1960. Defendants invoke Garcetti

for the proposition that plaintiffs’ speech in the workplace is

not covered by the first amendment, so they are entitled to

prevail even though their reactions to that speech are asserted

to be extra-legal and reprehensible. Such responses may be

actionable under state law in the wake of Garcetti, defendants

allow, but cannot be treated as constitutional torts.

Plaintiffs maintain, however, that defendants reacted

adversely to two kinds of speech: not only statements made as

part of their duties at work (the kind of speech to which

Garcetti applies) but also to testimony that plaintiffs gave in

inmates’ suits. Assistance to prisoners and their lawyers in

litigation is not part of a guard’s official duties. To apply

Garcetti, therefore, we would need to determine whether

lla

defendants reacted to plaintiffs’ activities in litigation (they

say not) and which of defendants’ deeds can be traced to the

litigation as opposed to events at work. Piecing out the state

of the record, and drawing inferences from the evidence, is

not allowed on an interlocutory appeal based on a claim of

immunity. See Johnson v. Jones, 515 U.S. 304 (1995); Via v.

LaGrand, 469 F.3d 618 (7th Cir. 2006). The role of an

appeal under Mitchell and Behrens is to determine whether the

legal principles that apply to public officials were clearly

established at the time those officials acted; it is not to

determine what the officials did in fact, for that would

impinge on the jury’s task.

It was clearly established long before the events of which

plaintiffs complain that state actors may not assault witnesses

in federal litigation. That’s a crime, see 18 U.S.C.

§1512(a)(2), so no public official could think the conduct

proper. Still, an interlocutory appeal is not the forum for

resolving disputes about whether defendants did what

plaintiffs accuse them of. Nor is an interlocutory appeal a

means to obtain review of the question whether the suit is

barred by the statute of limitations. That subject has nothing

to do with official immunity. Defendants appear to believe

that all arguments of any stripe are open on an interlocutory

appeal under Mitchell, but as Jones shows that’s not so.

When entertaining an interlocutory appeal by a public

official who seeks the shelter of qualified immunity,

the threshold question is: “Taken in the light most

favorable to the party asserting the injury, do the facts

alleged show the [public official’s] conduct violated a

constitutional right?” Saucier vy. Katz, 533 U.S. 194,

201 (2001). See also, e.g., Brosseau v. Haugen, 543

U.S. 194, 197 (2004); Newsome v. McCabe, 319 F.3d

301, 303-04 (7 Cir. 2003). Only if the answer is

12a

affirmative does the court inquire whether the official

enjoys qualified immunity. “[I]f a violation could be

made out on a favorable view of the parties’

submissions, the next, sequential step is to ask

whether the right was clearly established.” Saucier,

533 US. at 20].

Hosty v. Carter, 412 F.3d 731, 733 (7th Cir. 2005) (en

banc)(bracketed material in original). Whether plaintiffs’ suit

is untimely does not bear on either of the questions identified

in Saucier and Hosty.

Defendants’ further argument that they are not state

actors, because all of the guards are on the same level of the

employment hierarchy, is self-defeating at this stage of the

litigation. For if they are not state actors, they also are not

entitled to take an interlocutory appeal. The premise of this

appeal is that the defendants are public officials sued on

account of their official conduct; by denying that premise and

insisting that they behaved in a private capacity on a private

frolic the defendants knock out appellate jurisdiction. See

Mitchell v. Aeolus, 872 F.2d 577,580 (4th Cir. 1989). Lack

of state action would be a reason why this suit belongs in state

court under state tort law, rather than in federal court under

§1983, but an argument along these lines does not assert a

right not to be tried; it just asserts a right to be tried in a

different forum, and such a contention does not justify an

interlocutory appeal. See Van Cauwenberghe v. Biard, 486

U.S. 517 (1988).

Perhaps the state-actor theme can be recast as an argument

that one public official’s misconduct toward another at the

same level of the bureaucracy cannot violate the Constitution.

So put, the argument is within the first step of immunity

analysis under Saucier. But so put the argument ts a loser.

13a

Suppose one police officer arrests another or searches his

house; that step, if taken without probable cause (and a

warrant, if required for the search), violates the fourth

amendment. See Acevedo v. Canterbury, 457 F.3d 721 (7th

Cir. 2006); Driebel v. Milwaukee, 298 F.3d 622, 649-50 (7th

Cir. 2902). Suppose the white guards at a prison mercilessly

harass the blackguards and make their lives miserable, or

suppose the men demean the women. Such misconduct may

be actionable under the Constitution. See, e.g., Bohen v. East

Chicago, 799 F.2d 1180 (7th Cir. 1986); Valentine v.

Chicago, 452 F.3d 670 (7th Cir. 2006). See also, e.g., Bart

v. Telford, 677 F.2d 622 (7th Cir. 1982) (campaign of

harassment against co-worker on account of speech can

violate the first amendment); Powers v. Summers, 226 F.3d

815 (7th Cir. 2000) (same).

In litigation under Title VII of the Civil Rights Act

of1964, one worker’s misconduct toward another does not

automatically lead to liability for the employer, because

liability under that statute is direct rather than vicarious. Only

employers are subject to the law’s commands, and employers

are responsible for what they do (or elect to tolerate), rather

than what everyone in the work force does. See Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v.

Boca Raton, 524 U.S. 775 (1998). Things are otherwise under

§ 1983. State agencies are not“persons” under §1983, see Will

v. Michigan Department of State Police, 491 U.S. 58 (1989),

and even units of local government are responsible only for

their policies rather than misconduct by their workers. Monell

v. New York City Department of Social Services, 436 U.S.

658 (1978). Liability falls on the misbehaving

employees—which of course is why they are keen to assert

immunities from suit. Whether defendants engaged in the

conduct of which plaintiffs accuse them—and, if so, whether

they did it to retaliate for plaintiffs’ constitutionally protected

14a

speech, or just because defendants have a mean streak—are

questions hat must be resolved at trial. Arguments based on

Garcetti, the state-action doctrine, and the statute of

limitations are preserved for decision on appeal from the final

judgment. See Kurowski v. Krajewski, 848 F.2d 767 (7th Cir.

1988). ,

AFFIRMED

A true Copy:

Teste:

/s/

Clerk of the United States Court of

Appeals for the Seventh Circuit

lSa

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 06-2411

[Filed December 20, 2006]

ROGER FAIRLEY and RICHARD

GACKOWSKI,

Plaintiffs-Appellees,

¥.

EVAN FERMAINT, NOBERTO

BERCASIO, and FRED COFFEY,

)

Defendants-Appellants. )

)

Appeai from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 03 C 5207—Amy J. St. Eve, Judge.

ARGUED NOVEMBER 7, 2006—

DECIDED DECEMBER 20, 2006

Before EASTERBROOK, Chief Judge, and POSNER and

WOOD, Circuit Judges.

EASTERBROOK, Chief Judge. Two former guards at

Cook County Jail contend in this suit under 42 U.S.C. §1983

l6a

that some of their ex-colleagues violated the Constitution’s

first amendment (applied to state actors via the fourteenth) by

vilifying and assaulting them because they stood up for

inmates’ rights. According to the complaint, the defendants

and their confederates bully and ostracize any guard who

plays by the rules; these strong-arm tactics organize and

protect guards who beat inmates at whim and then lie about

their activities to their superiors, criminal investigators, and

judges in any suits that the prisoners may file. Plaintiffs’

allegations may or may not be true; this litigation has not

reached the point at which a judge or jury sifts fact from

fiction.

Defendants moved for summary judgment on the ground

of official immunity, and they have appealed from the order

denying this motion. Despite its interlocutory character, such

an Order is appealable under the approach of Mitchell v.

Forsyth, 472 U.S. 511 (1985). But there is a wrinkle:

defendants asked the court to dismiss the complaint two years

ago, before discovery commenced, and did not appeal from

the adverse decision. They reply that Bahrainis v. Pelletier,

516 U.S. 299 (1996), allows successive interlocutory appeals

at the complaint and summary judgment stages, so it must

logically allow defendants to forego appeal at the complaint

stage and save their arguments for summary judgment.

The problem is not, however, the number of appeals but

timing. Litigants have only 30 days to appeal. See Fed. R.

App. P. 4(a)(1)(A). Having let the time pass, a litigant cannot

reopen the window by re-filing the same motion or its

functional equivalent and obtaining the same decision. See

Charles v. Daley, 799 F.2d 343, 347-48 (7th Cir. 1986). That

would be equivalent to abolishing the time limit. Thus we

held in Garvin v. Wheeler, 304 F.3d 628, 632-33 (7th Cir.

2002), that when an immunity-based motion for summary

l7a

judgment duplicates a motion already made and denied—when

no new facts or legal arguments are presented in support of

the new motion—an appeal from the order denying summary

judgment must be dismissed, because the maneuver is nothing

but an effort to get around the time limit. Cf. Vega v. Miller,

273 F.3d 460, 465-66 (2d Cir. 2001) (new arguments allow

a new appeal under Behrens).

In Bahrainis the successive motions rested on different

grounds; the Supreme Court noted these differences as part of

the justification for allowing multiple interlocutory appeals.

516 U.S. at 308-09. It was not possible to characterize the

second interlocutory appeal in Bahrainis as an effort to evade

the 30-day limit for filing a notice of appeal from the initial

decision. The holding of Behrens is that both an order

declining to dismiss the complaint and an order denying

summary judgment are “final” decisions under 28 U.S.C.

§1291 when the defendant invokes an immunity to discovery

or trial; the timing for permissible appeals did not arise. In

our case timing is everything, and the generally applicable

rule that the window for appeal cannot be reopened by filing

the same motion again covers this situation.

The rule that successive motions do not reopen the time

for appeal applies to all “final decisions”—and a decision

rejecting an immunity defense is “final” even though the

litigation continues. The independent “finality” of such

decisions is the linchpin of both Mitchell and Bahrainis. So it

will not help to assert that the doctrine does not concern

interlocutory decisions; an order rejecting an immunity

defense is “final” rather than “interlocutory” as the Supreme

Court draws that distinction.

Perhaps one could doubt the wisdom of Garvin because it

has the potential to encourage unnecessary protective appeals.

18a

Suppose that a public official prefers to avoid the cost and

delay associated with an appeal at the complaint stage,

confident that discovery either will foil plaintiffs’ claims on

the merits or fortify the basis of immunity. If discovery

(unexpectedly) does not turn up new evidence, then Garvin

means that the defendant cannot appeal from an order denying

summary judgment: the invocation of immunity will just

repeat the arguments made earlier, rendering the appeal

untimely. To avoid ensnaring even the wary litigant, a court

might instead say, as Bahrainis emphasized, that an order

denying a motion to dismiss the complaint, and an order

denying summary judgment, are independently “final” (for

purposes of Mitchell), so that each has its own 30-day period

for appeal no matter what arguments have been raised. Such

an approach would have the additional virtue of clarity and

mechanical application, much-desired qualities in any

jurisdictional doctrine. See Budinich v. Becton Dickinson &

Co., 486 U.S. 196 (1988). But this approach also would

require us to overrule Garvin, a step that defendants have not

proposed.

Garvin cannot be treated as limited to successive motions

for summary judgment and distinguished on the ground that

this case involved a motion to dismiss the complaint followed

by a motion for summary judgment. Behrens holds that an

interlocutory appeal is proper from any decision finally

rejecting a claim of official immunity. Both an order declining

to dismiss a complaint and an order denying a motion for

summary judgment fit that category, the Court held. There is

no basis in Bahratnis or its predecessors for saying that all

motions to dismiss must be sorted into one pile, and all

motions for summary judgment into a second, with one appeal

from each category of motion rather than from each order that

is a“ final decision” for the purpose of 28 U.S.C. §1291. So

it does not make any difference that Garvin involved

19a

successive requests under Rule 56, while this case entails one

request for relief under Rule 12 and a second under Rule 56.

What does matter is that in both Garvin and this litigation the

two motions were functionally identical, and entertaining an

appeal from the second decision would effectively extend the

time to appeal from the first.

One effect of this understanding will be to make

defendants more likely to appeal from the district court’s

order denying a motion to dismiss the complaint. Yet this is

not the only effect. Another is to reduce the incentive to file

premature motions; a defendant who refrains from filing a

doomed motion to dismiss does not jeopardize a later appeal.

A third effect is to induce defendants who do move to dismiss

the complaint, and lose, to do more legal and factual digging

before they file a motion for summary judgment. That effect

is all to the good, because it improves the accuracy of judicial

decision-making, and it is the sort of thing that Bahrainis

contemplated would occur. Finally, in some cases the effect

may be to postpone appellate review to the end of the

litigation, when immunity may no longer matter (and all facts

will be in focus if it still does matter). That cannot be

dismissed as a trivial benefit to the judicial system.

Defendants concede that their motion for summary

judgment replicated their motion to dismiss the complaint.

Only the caption differed. Nothing that turned up in discovery

mattered; no new legal argument was advanced.

Fortuitously, something changed after the district court

denied defendants’ renewed motion: 26 days later, the

Supreme Court decided Garceiti v. Ceballos, 126 S. Ct. 1951

(2006), which holds that, “when public employees make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and

20a

the Constitution does not insulate their communications from

employer discipline.” /d. at 1960. Defendants rely on

Garcetti for the proposition that plaintiffs’ speech in the

workplace is not covered by the first amendment, so they are

entitled to prevail even though their reactions to that speech

are asserted to be extra-legal and reprehensible. Such

responses may be actionable under state law in the wake of

Garcetti, defendants allow, but cannot be treated as

constitutional torts.

Although it is tempting to see in Garcetti the sort of

change that allows an appeal without offense to the rule that

repetitious arguments do not open a new 30-day period, things

are not so straight forward. Plaintiffs maintain that defendants

reacted adversely to two kinds of speech: not only statements

made as part of their duties at work (the kind of speech to

which Garcetti applies) but also to testimony that plaintiffs

gave in inmates’ suits. Assistance to prisoners and their

lawyers in litigation is not part of a guard’s official duties. To

apply Garcetti, therefore, we would need to determine

whether defendants reacted to plaintiffs’ activities in litigation

(they say not) and which of defendants’ deeds can be traced

to the litigation as opposed to events at work. Piecing out the

state of the record, and drawing inferences from the evidence,

is not allowed on an interlocutory appeal based on a claim of

immunity. See Johnson v. Jones, 515 U.S. 304 (1995); Via v.

LaGrand, No. 04-4011 (7th Cir. Nov. 17, 2006). The role of

an appeal under Mitchell and Behrens is to determine whether

the legal principles that apply to public officials were clearly

established at the time those officials acted; it is not to

determine what the officials did in fact, for that would

impinge on the jury’s task.

It was clearly established long before the events of which

plaintiffs complain that state actors may not assault witnesses

2la

in federal litigation. That’s a crime, see 18 U.S.C.

§1512(a)(2), so no public official could think the conduct

proper. Still, an interlocutory appeal is not the forum for

resolving disputes about whether defendants did what

plaintiffs accuse them of. Nor is an interlocutory appeal a

means to obtain review of the question whether defendants

were engaged in state action in doing whatever they may have

done; that issue is unrelated to legal uncertainty and thus to

the doctrine of official immunity.

If the defendants ultimately lose this litigation, they will

be entitled to raise their immunity defenses on appeal from the

final decision. See Kurowski v. Krajewski, 848 F.2d 767 (7th

Cir. 1988). All we hold today is that, while Garvin stands,

public officials cannot use a motion for summary judgment in

order to reopen the time to take an interlocutory appeal from

an order declining to dismiss the complaint. Although

Garcetti might have allowed an appeal based on new legal

arguments, Johnson v. Jones blocks that route given the

material factual disputes, resolution of which is beyond the

scope of any interlocutory appeal. This appeal is dismissed for

want of jurisdiction.

POSNER, Circuit Judge, dissenting. The majority opinion

remarks:

Perhaps one could doubt the wisdom of Garvin [v.

Wheeler, 304 F.3d 628 (7th Cir. 2002)], because it

has the potential to encourage unnecessary protective

appeals. Suppose that a public official prefers to avoid

the cost and delay associated with an appeal at the

complaint stage, confident that discovery either will

foil plaintiffs’ claims on the merits or fortify the basis

of immunity. If discovery (unexpectedly) does not

turnup new evidence, then Garvin means that the

22a

defendant cannot appeal from an order denying

summary judgment: the invocation of immunity will

just repeat the arguments made earlier, rendering the

appeal untimely. To avoid ensnaring even the wary

litigant, a court might instead say, as Bahrainis [v.

Pelletier, 516U.S. 299 (1996)], emphasized, that an

order denying a motion to dismiss the complaint, and

an order denying summary judgment, are

independently “final”, . . . so that each has its own

30-day period for appeal no matter what arguments

have been raised. Such an approach would have the

additional virtue of clarity and mechanical application,

much-desired qualities in any jurisdictional

doctrine. . . . But this approach also would require us

to overrule Garvin, a step that defendants have not

proposed.

The defendants have not proposed that we overrule Garvin for

the excellent reason that Garvin is readily distinguishable

from the present case. So if my colleagues think it should be

overruled, they should not refrain from overruling it just to

punish the defendant’s lawyer for obtuseness in having failed

to ask us to overrule it. He was not obtuse. They have over

read the case.

Garvin was a Case of two successive motions for summary

judgment on immunity, so that by appealing from the denial

of the second motion but not from the denial of the first the

defendant could be thought to have tried to extend the time to

appeal beyond the 30-day limit for taking an appeal. (I don’t

think that’s an accurate characterization, but | accept it for the

moment.) In our case, a motion to dismiss was denied,

discovery ensued, a motion for summary judgment was made

and denied, and it was from that denial that the defendants

appeal. As my colleagues acknowledge in the passage I

23a

quoted, it makes sense for a defendant not to appeal from the

denial of his motion to dismiss if he thinks discovery will

strengthen his case for immunity. He will balance the cost of

the appeal against the cost of discovery, having regard also

for the possible effect of discovery in turning a losing

immunity defense into a winner and for the danger that losing

an appeal from the denial of the motion to dismiss would

reduce his chances of winning the subsequent appeal.

Garvin did not mention this argument, let alone reject it.

It did point out that the additional discovery that the defendant

conducted after the denial of the first motion for summary

judgment did not turn up any facts favorable to his immunity

defense. But that observation was consistent with a rule that

in the absence of exceptional circumstances you cannot file

identical successive motions for summary judgment on

immunity and be permitted to appeal from any or all of them.

That could inundate the courts of appeals with multiple

appeals in the same case. You can appeal from the denial of

your motion to dismiss and from the denial of your first

motion for summary judgment, but that’s it. (An alternative,

more lenient rule, which would require overruling Garvin but

is not necessary for the sound decision of this case, would

permit one appeal from denial of summary judgment without

specifying that it must be.taken from the denial of the first

motion for summary judgment, if as in Garvin there is more

than one such motion; for why should we care which denial

the defendant appeals from?)

The concern with inundation is the opposite in this case:

if failing to appeal the denial of a motion to dismiss blocks a

subsequent appeal from denial of a motion for summary

judgment, then courts of appeals could be inundated by

protective appeals from denials of motions to dismiss. This

point was made in Vega v. Miller, 273 F.3d 460, 465-66 (2d

24a

Cir. 2001), which my colleagues cite, and also in Robbins v.

Wilkie, 433 F.3d 755, 763-64 (10th Cir. 2006), and Grant v.

City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996).

Allowing the appeal in this case would not be inconsistent

with the dismissal of the defendant’s appeal in Garvin. But to

see this we need to understand that whether a decision can be

distinguished, in order to avoid its having precedential force

in a Subsequent case, or must be overruled to have that effect,

depends on the breadth of its holding, and that often there is

a choice as to how broadly a holding should be understood.

The choice is made by courts in later cases, the cases in

which the decision is argued to be a precedent. Garvin can be

read narrowly to hold that denials of second or successive

motions for summary judgment on grounds of immunity

cannot be appealed unless there has been some important

change since the first denial, or broadly to hold (with the

same “unless” qualification) that the denial of a motion for

summary judgment cannot be appealed if a motion for

summary judgment or a motion to dismiss was denied

previously. It is our choice. The panel majority, in the

“Perhaps” passage that I quoted earlier, explained why the

narrower reading is superior, yet unaccountably it chooses the

broader reading.

Well, not quite unaccountably. For later in its opinion the

majority has second thoughts, and suggests two reasons why

the broader reading might be preferable after all: that it would

reduce the incentive to file doomed motions to dismiss, and

that it would encourage more discovery. As to the latter point,

the last thing the federal courts need is more discovery. As to

the former, “doomed” motions to dismiss do not take up

much time of a district judge.

25a

I said that that one way to describe an appeal from the

denial of a successive motion for summary judgment that is

identical to the first motion is as an attempt to extend the time

for appealing from the initial denial. The panel majority

embraces that interpretation as the linchpin of its decision,

saying (citations omitted):

Litigants have only 30 days to appeal. Having let the

time pass, a litigant cannot reopen the window by

refiling the same motion or its functional equivalent

and obtaining the same decision. That would be

equivalent to abolishing the time limit . . . . [I]t does

not make any difference that Garvin involved

successive requests under Rule 56, while this case

entails one request for relief under Rule 12 and a

second under Rule 56. What does matter is that in

both Garvin and this litigation the two motions were

functionally identical, and entertaining an appeal from

the second decision would effectively extend the time

to appeal from the first.

Two things are overlooked in this passage: the difference

between appeals from final judgments and interlocutory

appeals, and the difference between motions to dismiss and

motions for summary judgment.

Suppose a final judgment is rendered and the losing party

does not appeal within the 30 or 60 days or whatever time is

allowed for filing the appeal, but later thinks better of his

decision, files a Rule 60(b) motion to vacate the judgment,

appeals from the denial, and argues in the appeal that the

judgment was wrong. That would indeed be a case of using an

appeal from the denial of a motion as a means of extending

the time for appealing an earlier ruling, and it would be

objectionable because it would deny finality to the litigation.

26a

The defendants in this case are not trying to reopen a

completed litigation. When they filed their motion to dismiss

there was no final judgment; when they filed their motion for

summary judgment there was no final judgment; and there

still is no final judgment. It made and makes no difference to

anyone whether they appealed from the denial of their motion

to dismiss, or passed and appeal instead from the denial of

their motion for summary judgment. The only effect of

today’s decision will be to engender the filing of protective

appeals. What is the point? To honor stare decisis? But read

narrowly, for the reason that the panel majority itself suggests

in the “Perhaps” passage, Garvin does not control the present

case; and it is entirely legitimate to read it narrowly. Courts

read precedents broadly or narrowly depending on what the

courts have learned subsequent to the precedents.

The other difference that the panel majority overlooks is

the difference between a motion to dismiss and a motion for

summary judgment. Defendants are entitled to immunity if

their “conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As

the Court explained in Bahrainis v. Pelletier, supra, 516 U.S.

at 309 (emphasis in original),“the legally relevant factors

bearing upon the Harlow question will be different on

summary judgment than on an earlier motion to dismiss. At

that earlier stage, it is the defendant’s conduct as alleged in

the complaint that is scrutinized for ‘objective legal

reasonableness.’ On summary judgment, however, the

plaintiff can no longer rest on the pleadings, see Fed. Rule

Civ. Proc. 56, and the court looks to the evidence before it

(in the light most favorable to the plaintiff) when conducting

the Harlow inquiry.” If a motion to dismiss on immunity

grounds fails, it is natural for the defendant to decide that he

had better try to find some evidence rather than take an appeal

27a

that he may be quite likely to lose. But he cannot know before

discovery begins how productive discovery will be. There is

no reason why, if he strikes out in discovery, as in this case,

he should be denied an appellate determination as to whether

the case should have been dismissed because he satisfied the

Harlow standard. This approach is a natural extension of

Bahrainis,; it is consistent with Garvin; and it harms no

one—its only effect being to head off protective appeals. We

have jurisdiction of the appeal, and should proceed to the

merits.

A true Copy:

Teste:

/s/

Clerk of the United States Court of

Appeals for the Seventh Circuit

28a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 03 C 5207

[Filed May 4, 2006]

ROGER FAIRLEY and RICHARD GACKOWSKI,

Plaintiffs,

¥x

)

| )

SUPT. DENNIS ANDREWS, LT. EDWARD )

BYRNE, SGT. PATRICK LOIZON, OFC. EVAN _ )

FERMAINT OFC. NOBERTO BERCASIO, OFC. _ )

FRED COFFEY, OFC. RONALD PROHASKA, )

INVESTIGATOR GREGORY ERNST, FORMER _ )

CHIEF INVESTIGATOR SAUL WEINSTEIN, )

CHIEF INVESTIGATOR TIM KAUFMANN, )

OFC. GABRIEL OCHOA, CHIEF INVESTIGATOR )

JUAN DIAZ, in their individual and official )

capacities, SHERIFF MICHAEL SHEAHAN, in his)

official capacity, and COOK COUNTY, )

Defendants. )

)

JUDGES: AMY J. ST. EVE, United States District Court

Judge.

29a

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiffs Roger Fairley and Richard Gackowski filed a

Second Amended Complaint alleging that Defendants violated

their First Amendment rights to the United States Constitution

in violation of 42 U.S.C. § 1983. Before the Court are

Defendants’ Motions for Summary Judgment pursuant to

Federal Rule of Civil Procedure 56(c). For the reasons

discussed in detail below, the Court grants in part and denies

in part Defendant Sheriff Michael Sheahan’s Motion for

Summary Judgment. The Court grants in part and denies in

part Defendant Edward Byrne’s and Defendant Dennis

Andrews’ Motions for Summary Judgment. Further, the

Court grants in part and denies in part Defendants Evan

Fermaint’s, Noberto Bercasio’s, Fred Coffey’s and Ronald

Prohaska’s Motion for Summary Judgment. The Court also

grants Defendant Juan Diaz’s, Defendant Patrick Loizon’s

and Defendant Gregory Ernst’s Motions for Summary

Judgment in their entirety. Finally, the Court grants in part

and denies in part Timothy Kaufmann’s and Saul Weinstein’s

Motions for Summary Judgment.

30a

BACKGROUND’

I. The Parties

Plaintiffs Roger Fairley and Richard Gackowski are

former correctional officers at the Cook County Department

of Corrections (“CCDOC”), who resigned from the CCDOC

on February 4, 2003. (R. 447-1, Defs.’ Joint Local Rule

56.1(a)(3) Stmt. Facts. 94 1, 2; R. 553-1, Pls.’ Corrected

Rule 56.1(b)(3) Stmt. Add’! Facts ¢ 420.) During the relevant

time period, Defendant Dennis Andrews was _ the

superintendent of Division ], Defendant Edward Byrne was a

correctional officer with the rank of lieutenant, and Defendant

Patrick Loizon was a correctional officer with the rank of

sergeant at the CCDOC. (/d. 44 3-5.) Defendants Evan

Fermaint, Noberto Bercasio, Fred Coffey, and Ronald

Prohaska were all correctional officers at the CCDOC during

' The Court derives the background facts from the parties’ Northern

District of Illinois Local Rule 56.1 statements. The majority of

Defendants’ objections to Plaintiffs’ Rule 56.1(b)(3) Statement of

Facts are based on hearsay, although Defendants do not explain

how or why each challenged statement is inadmissible hearsay. See

Fed.R.Evid. 801(c) (“‘Hearsay’ is a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”); see also

Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997)

(“hearsay is inadmissible in summary judgment proceedings to the

same extent that it is inadmissible in a trial.”). Witnesses, however,

may testify to their observations and give opinions based on their

own personal knowledge. See Fed.R.Evid. 602, 701; United States

v. Joy, 192 F.3d 761, 767 (7th Cir. 1999) (“Because most

knowledge is inferential, personal knowledge includes opinions and

inferences grounded in observations or other first-hand

experiences. ”).

31a

the pertinent time period. (/d. ¢{ 6-9.) Defendant Gregory

Ernst was an investigator with the Internal Affairs Division

(“IAD”) of the CCDOC and Defendant Saul Weinstein and

Juan Diaz served as Chief Investigators at IAD. (/d. 4§ 10,

11, 14.) Defendant Timothy Kaufman was an investigator

with the Cook County Sheriff's Police Department and

Defendant Michael Sheahan served as the Sheriff of Cook

County. (/d. F{ 12, 15.) Cook County and Gabriel Ochoa are

no longer Defendants in this lawsuit. (/d. § 13.)

Ii, CCDOC Training Academy

Fairley attended the CCDOC Training Academy from

October 31, 1994 until January 27, 1995. (/d. | 55; Pls.’

Stmt. Add’l Facts § 1.) At his deposition, Fairley testified that

while on a visit to Division II of the CCDOC with his training

academy class, he witnessed a correctional officer take a pool

stick and hit an inmate who was using crutches. (Pls.’ Stmt.

Add’l Facts ¢ 2; Defs.’ Ex. 8, Fairley Dep. at 448-66.)

Fairley further testified that the next day during class, an

academy cadet complained about the incident. (/d. J 4, Defs.’

Ex. 8, Fairley Dep. at 463.) After that, Fairley stated that an

academy instructor told Fairley’s class that the cadets stick

together and that they should not make bad remarks about

anyone because “unity is the key.” (/d. 4 6, Defs.” Ex. 8,

Fairley Dep. at 462-63.)

Gackowski began training at the CCDOC Training

Academy on June 12, 1995 and was part of the Class of 95-4.

(Defs.’ Stmt. Facts 4 43; Pls.’ Stmt. Add’] Facts ¢ 7.) At his

deposition, Gackowski testified that he and his training

academy class visited the Cook County Jail and witnessed

officers throw a handcuffed inmate face-first into a bench.

(Pls.” Stmt. Add’! Facts 4 8; Defs.’ Ex. 1, Gackowski Dep.

at 131.) Gackowski further testified that while in training, a

32a

sergeant illustrated how to speed cuff inmates and that it was

possible to shatter the inmate’s bones in doing so. (/d. § 15,

Defs.’ Ex. 1, Gackowski Dep. at 126.) According to

Gackowski, the sergeant then joked that the reporting officer

would never know how the bones became shattered. (/d. 4 16,

Defs.” Ex. 1, Gackowski Dep. at 126-27.) Further,

Gackowski testified that a training sergeant told them after an

Internal Affairs class that the IAD investigators were not their

friends, but instead they were there to “trip up” the

correctional officers. (id. § 25, Defs.’ Ex. 1, Gackowski

Dep. at 117-18.) The sergeant further explained to the cadets

that they should be careful when they write their reports and

that they should not “set each other out.” (/d.)

Former correctional officer, Ricky Rodriguez, who started

at the Training Academy in June of 1996, testified that:

The code of silence is brought up to us and I believe

it’s brought up to us in the Redman training, that we

are the officers, they are the inmates, we are the good

guys, they are the bad guys. If you expect your fellow

officers to back you up, you need to back them up, so

basically what goes on in the jail stays in the jail.

(Id. 44 18, 19, Pls.’ Ex. 33, Rodriguez Dep. at 211.)

III. Division I Incidents

After their academy training, both Fairley and Gackowski

worked in Division I of the Cook County Jail during part of

the relevant time period and became friends. (Defs.’ Stmt.

Facts ¥{ 21, 26, 35-38.) Fairley testified that while working

in Division I in late 1998 or early 1999, he witnessed

Defendant Coffey and another correctional officer hit two

inmates. (Pls.” Simt. Add’l Facts 4 46, Defs.’ Ex. 8, Fairley

33a

Dep. at 507-09.) Fairley then told another officer to get a

supervisor. (/d. 4 47, Defs.’ Ex. 8, Fairley Dep. at 509-10.)

After the incident, Fairley testified that he told a sergeant

about it, after which Coffey called Fairley a snitch and

threatened to beat him up. (/d. ¥§ 48, 50, Defs.’ Ex. 8,

Fairley Dep. at 510-13.)

Gackowski testified that on April 1, 2000 he witnessed

Coffey punch and kick inmate Rodney Brown. (/d. § 51,

Defs.’ Ex. 1, Gackowski Dep. at 295-96.) After Brown fell

to the floor, Gackowski testified that Coffey continued to kick

Brown. (/d., Defs.’ Ex. 1, Gackowski Dep. at 296.)

According to Gackowski, he yelled at Coffey while Coffey

was beating Brown and told Coffey not to include him as a

witness in his report. (/d. 4 53, Defs.’ Ex. 1, Gackowski

Dep. at 286.) After the Brown incident, Gackowski testified

that he told his supervising sergeant about the beating. (/d.

q 54, Defs.’ Ex. 1, Gackowski Dep. at 296-97.) Coffey

subsequently told Gackowski that he was not “part of the

team.” (/d. 4 57, Defs.’ Ex. 1, Gackowski Dep. at 183.) Also

after this April 2000 incident, Gackowski testified that

Defendant Fermaint started calling him a snitch. (/d. 4 58,

Pls.’ Ex. 19, Gackowski Dep. at 207-08.) Similarly,

Defendants Coffey, Fermaint, and Bercasio started calling

Gackowski a “social worker.” (/d. 4 59, Defs.’ Ex. 1,

Gackowski Dep. at 403-04.)

IV. The July 29, 2000 Incident

Fairley testified at his deposition that on July 29, 2000 he

saw Fermaint and another correctional officer abuse inmates,

including Nathson Fields and James Scott, in the SI-2 (Special

Incarceration Unit Two), which is the maximum security tier

located in the basement of Division I. (Defs.’ Stmt. Facts

qq 64, 65; Pls.” Stmt. Add’l Facts 4 71.) Fairley testified that

34a

other officers, including Bercasio, also beat some inmates

while they were handcuffed and shackled. (Pls.’ Stmt. Add’!

Facts { 72; Defs.’ Ex. 8, Fairley Dep. at 691, 922-23.)

Further, Fairley stated that he told the officers to stop beating

the inmates and subsequently reported the beating to his

supervisors. (/d. {4 76, 93.) Also, Fairley testified that after

the incident, Lieutenant Byrne told him not to write up a

report and that [AD would interview him, yet no investigator

from IAD ever interviewed Fairley in connection with the

incident. (/d. {{ 79, 80.) Defendant Superintendent Andrews

was also informed about the altercation in Division I on July

29, 2000. (/d. ¢ 81.) Furthermore, Fairley told Gackowski

along with other correctional officers about the beating he had

witnessed on July 29, 2000. (Pls.’ Stmt. Add’! Facts 94 91,

98.)

Gackowski did not witness any of the events on July 29,

2000 in the SI-2 because he was assigned to Division VIII,

which houses the Cermak Hospital Emergency Room. (/d.

{ 82; Defs.’ Stmt. Facts ¢4 66-70.) He nonetheless heard

about the incident from officers in Division VIII. (Pls.’ Stmt.

Add’! Facts { 83.) At the emergency room, Gackowski saw

some of the injured officers and inmates, including inmate

Scott, who were involved in SI-2 altercation. (/d. § 84; Defs.’

Stmt. Facts {¢ 72, 73.) Although Gackowski saw Scott very

briefly, he testified at his deposition that Scott’s face was

swollen and that he was bleeding. (Pls’ Stmt. Add’! Facts

¢ 85; Defs.’ Stmt. Facts 4 71, 73.)

Gackowski was transferred back to Division I in August

2000. (/d. 4 86.) He testified at his deposition that on the day

he returned to Division I, he talked to Byrne about the SI-2

incident and Byrne explained that some of the inmates had

tried to jump the correctional officers. (/d. § 87, Defs.’ Ex.

1, Gackowski Dep., at 768-69; Defs.’ Stumt. Facts ¢ 85.) The

35a

parties dispute whether Byrne told Gackowski that Byrne had

tried to break one of the inmate’s legs. (/d. | 89.)

In August 2000 after the SI-2 incident, certain inmates

filed a lawsuit in state court known as the “Fields Litigation,”

which named Lieutenant Byrne as one of the defendants. (/d.

qq 104, 105.) The Fields Litigation received a significant

amount of publicity in the Chicago area. (/d. {4 106-123.) In

addition, correctional officers and other staff in Division I

discussed the Fields Litigation. (/d. 4 91, 93, 94, 124.) In

April 2001, a letter from the Sheriff's Office informed the

Division I correctional officers about the Fields Litigation.

(id. 44 165-172.) Superintendent Andrews discussed this

letter with the correctional officers who received it, including

Fermaint and Byrne. (/d. {4 169-171.) In the interim,

Gackowski testified that he told correctional officer Rodriguez

that he was going to tell the truth about the SI-2 incident. (/d.

¢{ 97.) Similarly, Fairley told a number of correctional

officers that he was not going to lie about the SI-2 incident.

(Id. ¢ 103.)

Eventually, Fairley and Gackowski gave deposition

testimony in the Fields Litigation. (/d. 4 401; Defs.’ Stmt.

Facts 4 101.) Prior to Fairley’s testimony, a private

investigator went to Fairley’s residence, after which Fairley

reported the investigator’s visit to Superintendent Andrews.

(Id. 44 147, 157.) After his conversation with Fairley,

Andrews contacted IAD, the CCDOC’s Executive Director’s

Office, and Sheriff Sheahan’s Chief Legal Counsel to inform

them that an investigator had been to Fairley’s house. (/d.

q 161.)

36a

V. Alleged Harassment and Retaliation After the July 29,

2000 Incident

After the July 29, 2000 incident, Fairley testified that

Fermaint refused to provide enough lunches and other

supplies for the SI-2 inmates which caused the inmates to

become irate and yell at Fairley. (/d. 4§ 252, 253.) Fairley

also testified that Fermaint and Bercasio would “dry hump”

him -- meaning that they would physically grab him by the

waist and imitate anal intercourse. (Jd. 949 254, 256.)

Moreover, Fairley testified that Fermaint and Bercasio also

harassed him by failing to unlock the security door to the SI-2

Unit to allow Fairley to use the restroom, in addition to

calling him an “inmate lover.” (/d. 44 240, 251.) Evidence in

the record also reveals that Byrne assigned Fairley difficult

assignments and denied him paternity leave. (/d. 44 214, 216,

221, 224, 228.) According to Fairley, Defendant Loizon

assigned him to the difficult task of escorting inmates to

Cermak hospital at the end of his shift. (/d. § 222, Defs.’ Ex.

8, Fairley Dep. at 847-48.)

Further, Bercasio drew sexually explicit cartoons of

Gackowski and had them posted around Division I. (/d.

qq 257, 258; Defs.’ Stmt. Facts § 121.) Gackowski also

testified that from late 2000 through May or June 2002,

Bercasio and Fermaint “dry humped” him by physically

grabbing him and imitating anal intercourse. (Pls.’ Stmt.

Add’l Facts ¢ 262; Defs.’ Stmt. Facts 4 121.) The record

contains undisputed evidence that Gackowski reported the

correctional officers’ harassment to Byrne. (Defs.’ Stmt.

Facts ¢ 112.)

37a

VI. Gackowski’s Complaint to Internal Affairs

On June 14, 2002, Gackowski told Superintendent

Andrews that he might file a complaint with Internal Affairs

concerning the officers’ harassment. (Defs.’ Stmt. Facts.

¢ 116.) Gackowski also testified that on June 15, 2002, he

told Lieutenant Byrne that he was going over Superintendent

Andrews’ head and would report the various officers’

harassing conduct to Internal Affairs. (/d. ¢§ 91, 117; Pls.’

Stmt. Add’l Facts 44 264, 269.) Gackowski testified at his

deposition that Byrne told him that if he did go to Internal

Affairs, repercussions would follow. (Pis.’ Stmt. Add’ Facts

¢ 266.) Moreover, Gackowski stated that he informed other

Defendants that he was going to go to Internal Affairs with his

complaints. (/d. {4 267, 268.) Also, in or about June or July

2002, Gackowski, by giving an investigation statement, told

Defendant Gregory Ernst of Internal Affairs that certain

officers were harassing him. (/d. § 270; Defs.” Ex. 20,

Gackowski’s 2002 Internal Affairs Stmt.)

On July 9, 2002, Gackowski submitted a written

complaint to Internal Affairs alleging that he was the subject

of harassment by other correctional officers. (/d. § 272;

Defs.” Stmt. Facts ¢ 119.) Saul Weinstein, the Chief

Investigator of IAD, did not initiate an investigation into

Gackowski’s allegations, but instead forwarded Gackowski’s

complaint back to Division I and Superintendent Andrews.

(Pls.’ Stmt. Add’l Facts 4274.) Gackowski testified that when

he went to Andrews’ office, Andrews berated him for

submitting the IAD complaint. (/d. ¢ 280.) In addition,

Andrews told Gackowski that he would sue Gackowski for

slander because of the statements Gackowski made in the IAD

complaint. (R. 454-1, Def. Andrews Rule 56.1(a)(3) Stmt.

Facts § 11.) Nevertheless, Andrews contacted Weinstein and

told him that he was sending Gackowski’s complaint back to

38a

IAD because it was a “conflict of interest” for Andrews to

investigate a complaint in which he was a named subject.

(Pls.’ Stmt Add’l Facts € 282.)

After Gackowski’s complaint was returned to IAD,

Investigator Gregory Ernst was assigned*to the case and

interviewed Gackowski about his allegations. (/d. {{ 303,

304.) In his statement to Ernst, Gackowski identified officers

who had harassed him, including Fermaint and Bercasio, and

described the harassment -- including physical grabbing,

sexually suggestive cartoons, and degrading and sexual

comments about his wife. (/d. § 305, Defs.’ Ex. 20,

Gackowski’s 2002 Internal Affairs Stmt.) Gackowski told

Ernst that he believed he had been singled out for harassment

because he did not “smack inmates around for no reason.”

(Id. 4 306.) Further, Gackowski explained to Ernst that he

had witnessed Fermaint, Byrne, and Coffey abuse inmates and

specifically described the Rodney Brown incident. (/d.

q{ 308, 314.) There is also evidence in the record that other

correctional officers knew that Gackowski had made a report

to the IAD, especially because a Division I Chief spoke tc

everyone identified in Gackowski’s IAD complaint. (/d.

q{ 291, 316, 321-326.)

On September 20, 2002, Ernst reported to the Chief of

IAD, Saul Weinstein, that Gackowski had filed a complaint

with the Illinois Human Rights Department and Weinstein

advised Ernst to put the investigation into Gackowski’s IAD

complaint on hold until the completion of the Human Rights

investigation. (/d. J§ 327, 328.) Gackowski contends that no

one ever told him that his IAD investigation was put on hold.

(Id. { 335.)

39a

VII. Lipscomb Incident

On December 20, 2002, there was an altercation between ,

inmate Keon Lipscomb and Fairley, as well as other

correctional officers. (Defs.’ Stmt. Facts 4214.) On that date,

Fairley was scheduled to transport Lipscomb for his “medical

movement.” (Pls.’ Stmt. Add’! Facts 4§ 337-339; Defs.’ Stmt

Facts 4 216.) After Lipscomb’s “medical movement” was

cancelled, Lipscomb would not follow Fairley’s orders. (Pls.’

Stmt. Add’! Facts ¢ 342; Defs.’ Stmt Facts § 220.)

Thereafter, Bercasio, Byrne, and Loizon came to Fairley’s

assistance. (Defs.’ Stmt. Facts § 223.) Lipscomb attacked

Fairley, Bercasio tackled Lipscomb from behind, and Fairley

fell back during which Fairley sustained a cut to his wrist.

(Pls.’ Stmt. Add’l Facts 44 348, 349.) After that, other

correctional officers helped subdue Lipscomb. (/d. ¢ 350.)

Thereafter, the Sheriff's Office Investigator, Timothy

Kaufmann, began his investigation of the Lipscomb incident.

(Id. { 361; Defs.’ Stmt. Facts ¢ 233.) Kaufmann interviewed

Fairley as well as other the officers involved. (Defs.’ Stmt.

Facts ¢ 237.) An Assistant States Attorney, Bumjoon Park,

also conducted a felony review into the Lipscomb incident and

interviewed Fairley and the officers. (/d. 44 238, 240, 246.)

In the course of the investigation, Fairley told Kaufmann and

Park that he believed he was being set up in retaliation for

speaking the truth about the July 29, 2000 incident and his

upcoming testimony in the Fields Litigation. (Pls.’ Stmt.

Add’| Facts 4 364, Pls.’ Ex. 25, Kaufman Dep. at 51, Pls.’

Ex. 30, Park Dep. at 69.) Kaufmann’s final report of the

Lipscomb incident stated that he and Assistant States Attorney

Park concluded that charges against Lipscomb were not

warranted because of Fairley’s inconsistent statements. (/d.

q 367.) Park, however, testified at his deposition that he did

not tell Kaufmann that the States Attorney's Office would not

oe re A ame RE

40a

approve felony charges or that he found Fairley to be

incredible. (Jd. 44 368, 369, Pls.’ Ex. 30, Park Dep. at 27,

63-64.) The States Attorney’s Office never brought criminal

charges against Lipscomb regarding his assault on Fairley.

(Id. 4 375; Defs.’ Stmt. Facts 9 253.)

VIII. Prohaska Threat

Shortly after the Lipscomb incident, Gackowski testified

that he encountered Defendant Prohaska in Division I, after

which Prohaska asked Gackowski about Fairley’s testimony

in the Fields Litigation. (Pls.’ Stmt. Add’! Facts 44 382-384.)

During their encounter, Gackowski asserts that Prohaska

stated that Fairley was a weak link and that they had to

“bury” the weak link. (/d. 4 384.) Also, Gackowski asserts

that Prohaska made disparaging remarks about him. (/d.

q 385.) On January 9, 2003, Gackowski filed a IAD

complaint regarding the Prohaska threat. (Defs.’ Stmt. Facts

q 168.)

SUMMARY JUDGMENT STANDARD

Summary judgment is proper when “the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed.R.Civ.P.

56(c). A genuine issue of material fact exists only if “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202

(1986). The party seeking summary judgment has the burden

of establishing the lack of any genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). In determining whether a

4la

genuine issue of material fact exists, the Court construes the

facts in a light most favorable to the non-moving party and

draws all reasonable inferences in favor of that party.

Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The

existence of a factual dispute alone is not sufficient to defeat

a summary judgment motion, instead the non-moving party

must present definite, competent evidence to rebut the

summary judgment motion. Butts v. Aurora Health Care,

Inc., 387 F.3d 921, 924 (7th Cir. 2004).

ANALYSIS

I. First Amendment Retaliation Claim -- Count I

The First Amendment protects freedom of speech and

expressive conduct and generally prevents the government

from proscribing such activities. RAV v. City of St. Paul,

Minnesota, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120

L.Ed.2d 305 (1992). “It is by now well established that the

government may not arbitrarily silence the constitutionally-

protected speech of its employees. Government workers do

not forfeit their First Amendment rights simply by accepting

public sector employment.” Wernsing v. Thompson, 423 F.3d

732, 750 (7th Cir. 2005). Although public sector employees

retain their First Amendment rights to free speech, a public

employee does not possess unlimited rights of speech and

expression on matters related to official responsibilities.

Sullivan v. Ramirez, 360 F.3d 692, 697 (7th Cir. 2004)

(citing Pickering v. Board of Educ. of Twp. High Sch. Dist.

205,391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811

(1968)); see also Connick v. Myers, 461 U.S. 138, 146, 103

S.Ct. 1684, 75 L.Ed.2d 708 (1983) (employee's speech may

be protected if matter of public concern).

42a

In determining a Section 1983 claim for retaliation in

violation of a public employee’s First Amendment rights, the

Court conducts a three-step inquiry: (1) the Court first

determines whether the employee’s speech was

constitutionally protected under the Connick - Pickering test;

(2) Plaintiffs then must show that their speech was a

substantial or motivating factor in the retaliation; and (3)

Defendants may rebut Plaintiffs’ contentions by establishing

that Defendants would have taken the same action in the

absence of Plaintiffs’ protected speech. Ashman v. Barrows,

438 F.3d 781, 784 (7th Cir. 2006); Sullivan v. Ramirez, 360

F.3d at 697-98. Plaintiffs have the burden of establishing the

first two prongs because they constitute the prima facie

elements of a First Amendment retaliation claim. Carreon v.

Iilinois Dep’t of Human Servs., 395 F.3d 786, 791 (7th Cir.

2005). “If the plaintiff establishes these elements, the burden

shifts to the defendant to prove by a preponderance of the

evidence that it would have taken the same action in the

absence of the protected speech.” /d.

A. Connick-Pickering Test

Defendants do not address whether Gackowski’s and

Fairley’s speech was a matter of public concern under

Connick, nor do they discuss the balancing test as required

under Pickering. Because the Connick-Pickering test is a

prima facie element of Plaintiffs’ retaliation claim, the Court

addresses this first step for the sake of completeness.

1. Matter of Public Concern

Under Connick, the Court must determine whether each

Plaintiff spoke “as a citizen upon matters of public concern.”

Connick, 461 U.S. at 147. To do so, the Court examines “the

content, form, and context of a given statement, as revealed

_— rr TT OT

43a

by the whole record.” /d. at 147-48. The Connick public

concern element must relate to a community concern, and

thus cannot relate to an employee’s personal grievance.

Carreon, 395 F.3d at 791; see also Cygan v. Wisconsin Dep't

of Corr., 388 F.3d 1092, 1099 (7th Cir. 2004) (speech must

be matter of political, social, or other community concern).

Looking to the content, form, and context of Plaintiffs’

speech, it involved other correctional officers physically

abusing inmates at the Cook County Jail. Plaintiffs’ speech

took the form of complaints and statements to other

correctional officers, supervisors, and investigators about this

alleged excessive force, as well as their testimony in the

Fields Litigation. Such speech is not a mere personal concern,

but pertains to a social and public concern as required under

Connick. See Glass v. Dachel, 2 F.3d 733, 741 (7th Cir.

1993) (“speech that focuses on police departments (and

ultimately police protection and public safety) involve matters

of great public concern”); see also Kinney v. Weaver, 367

F.3d 337, 356 (Sth Cir. 2004) (en banc) (“plaintiff’s

testimony regarding the use of excessive force by police

officers was unquestionably a matter of public concern”).

2. Balancing Interests

Under the Pickering prong, the Court balances the

interests of the employee “as a citizen, in commenting upon

matters of public concern” against “the interest of the State,

as an employer, in promoting the efficiency of the public

services it performs through its employees.” Pickering, 391

U.S. at 568. In other words, governmental units may restrict

a public employee’s speech if the government can show that

its interest in promoting effective and efficient public service

outweighs the employee’s interest as a citizen commenting on

44a

matters of public concern. Carreon, 395 F.3d at 791 (citing

Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002)).

Although an employer’s concern regarding the disruptive

nature of an employee’s speech is important in the context of

law enforcement, when an employee reports illegal conduct,

such speech is necessarily protected. See McGreal v. Ostrov,

368 F.3d 657, 678 (7th Cir. 2004) (citation omitted).

Therefore, the CCDOC’s need to perform efficient public

service does not outweigh Plaintiffs’ interests as citizens

commenting on inmate abuse and the alleged excessive force

at the Cook County Jail. See Carreon, 395 F.3d at 791.

B. Substantial or Motivating Factor

The next element of Plaintiffs’ prima facie case is whether

Plaintiffs’ protected speech was a substantial or motivating

factor in the alleged retaliation and harassment. See Ashman

v. Barrows, 438 F.3d at 784; see also Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct.

568, 50 L.Ed.2d 471 (1977). The “motivating factor does not

amount to a but-for factor or to the only factor, but is rather

a factor that motivated the defendant’s actions.” Spiegia v.

Hull, 37) F.3d 928, 942 (7th Cir. 2004).

Defendants contend that their conduct was not a

motivating factor in the retaliation and harassment because

they did not know of Plaintiffs’ protected speech in the first

instance. Defendants base their argument on Stagman v. Ryan,

176 F.3d 986, 999 (7th Cir. 1999), in which the Seventh

Circuit concluded that to establish the “motivating factor”

element, plaintiffs must demonstrate that defendants knew of

plaintiff's constitutional activities. In Stagman, the Seventh

Circuit concluded that the plaintiff had failed to raise a

genuine issue of material fact regarding whether his

45a

supervisor knew of his constitutionally protected union

activities. See id. The Court thus turns to whether the

individual Defendants knew of Plaintiffs’ constitutional

activities.

1. Correctional Officers and Supervisors’

Defendants Fermaint, Bercasio, Prohaska, Coffey,

Loizon, Byrne, and Andrews argue that they were unaware of

Plaintiffs’ constitutional activities, namely, that Plaintiffs

engaged in protected speech. Plaintiffs’ protected speech

involved speaking out against inmate abuse and excessive

force at the Cook County Jail. As Judge Castille explained in

denying Defendants’ qualified immunity claim, a “reasonable

person in Defendants’ position would have known that

retaliating and harassing someone because of something they

* Defendants Fermaint, Bercasio, Prohaska, Coffey, and Loizon

contend that they cannot be found liable on Plaintiffs’ First

Amendment retaliation claim because only supervisors can take

adverse employment actions. Further, Superintendent Andrews

argues that he took no actions against Plaintiffs that can be

considered adverse employment actions. Defendants’ arguments are

without merit because Section 1983 lawsuits do not require an

adverse employment action within the meaning of the anti-

discrimination statutes, such as Title VII. Spiegla v. Hull, 371 F.3d

928, 941 (7th Cir. 2004). Instead, any deprivation that is likely to

deter the exercise of free speech is actionable. /d.; see also

DeGuiseppe v. Village of Bellwood, 68 F.3d 187, 192 (7th Cir.

1995) (“Under the law of this Circuit, retaliation need not be

monstrous to be actionable under the First Amendment; it need

merely create the potential for chilling employee speech on matters

of public concern.”).

said or wanted to say was unconstitutional.” Fairley v.

Andrews, 300 F.Supp.2d 660, 668-69 (N.D. Ill. 2006).’

Despite Defendants’ argument, Plaintiffs have set forth

competent evidence establishing a genuine issue of material

fact that they openly spoke out against the inmate abuse and

excessive force at the Cook County Jail, especially concerning

the SI-2 incident that resulted in the Fields Litigation, and that

these Defendants were aware of this protected speech. Fairley

testified that he told Fermaint and Bercasio to stop beating

inmates during the SI-2 incident and that he told many of his

fellow correctional officers about this incident. Plaintiffs also

testified that they told other correctional officers they would

not lie about the SI-2 incident.

Evidence also exists that other correctional officers and

supervisors were put on notice of Plaintiffs’ protected speech

and the SI-2 incident. For example, in April 2001, the

Sheriff's Office sent a letter to Division I correctional officers

about the Fields Litigation and Superintendent Andrews

discussed this letter with the correctional officers who

received it, including Fermaint and Byrne. Also, Fairley

> Judge Castillo already ruled that Defendants did not establish

qualified immunity because Plaintiffs’ right to free speech under the

circumstances was clearly established. Fairley v. Andrews, 300

F.Supp.2d 660, 668-69 (N. D. Ill. 2006) (citing Connick v. Myers,

461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).

Because this ruling is the law of the case, the Court will not reopen

this issue unless the decision is “clearly erroneous and would work

a manifest injustice.” Moriarty v. Svec, 429 F.3d 710, 722-23 (7th

Cir. 2005) (citation omitted). Defendants fail to give any

compelling reasons for the Court to conclude that this previous

ruling was clearly erroneous and would result in a manifest

injustice, thus the Court will not revisit Judge Castillo’s ruling.

8 gi eae arcane

testified that after the SI-2 incident, Lieutenant Byrne told him

not to write up a report and that IAD would interview him,

yet no investigator from IAD ever interviewed Fairley in

connection with the incident. Furthermore, Gackowski

testified that Byrne told him about his actual involvement in

the SI-2 incident.

As far as Gackowski’s IAD complaint, Gackowski told

Superintendent Andrews that he might file a complaint with

Internal Affairs concerning the officers’ harassment and told

Lieutenant Byrne that he was going over Superintendent

Andrews’ head and would report the various officers’

harassing conduct to Internal Affairs. Thereafter, Byrne told

Gackowski that if he went to Internal Affairs, repercussions

would follow. The record also reveals that other correctional

officers knew of Gackowski’s IAD compliant, especially

because a Division [ Chief spoke to everyone identified in

Gackowski’s IAD complaint that included Byrne, Fermaint,

Bercasio and Coffey.

Similarly, there is competent, definite evidence that the

CCDOC Defendants retaliated or harassed Plaintiffs after

Plaintiffs engaged in protected speech, including evidence that

Gackowski told Byrne and Andrews that he was reporting

officer harassment to [AD in 2002 and Andrews subsequently

berated and threatened to sue Gackowski about statements

made in this IAD report. In addition, Fairley testified that

Byrne told him not to fill out a report about the SI-2 incident,

and thereafter assigned Fairley difficult tasks and refused his

request for paternity leave. Also, Plaintiffs have presented-

evidence that in reference to the Fields Litigation, Prohaska

threatened Fairley and Gackowski by saying that they needed

to “bury” the weak link.

48a

Moreover, Fairley testified that after he witnessed Coffey

hit two inmates in late 1998 or early 1999 and reported the

incident to a sergeant, Coffey started calling him a snitch and

threatening to beat him up. Gackowski testified that after he

witnessed Coffey punch and kick inmate Rodney Brown and

asked Coffey to stop, he later reported the incident to the

supervising sergeant. After the Brown incident, Coffey told

Gackowski that he was not part of the team and Fermaint

started calling him a snitch. Further, Coffey, Fermaint, and

Bercasio mocked Gackowski by calling him a “social

worker,” and Fermaint and Bercasio “dry-humped” both

Gackowski and Fairley on several occasions after these

incidents.

Construing this evidence and all reasonable inferences in

a light most favorable to Plaintiffs -- as the Court must do at

this procedural posture -- there is a genuine issue of material

fact that Fermaint, Bercasio, Prohaska, Coffey, Byrne, and

Andrews knew of Plaintiffs’ constitutional activities --

namely, their speech against inmate abuse and excessive force

at the Cook County Jail -- and thereafter either retaliated or

harassed Plaintiffs.

Meanwhile, although Plaintiffs identify evidence that

Sergeant Loizon assigned Fairley undesirable tasks, Plaintiffs

fail to point to any specific evidence that Sergeant Loizon

knew of Plaintiffs’ protected speech. In fact, in their legal

memorandum, Plaintiffs do not argue that it is reasonable to

conclude that Loizon knew about the Fields Litigation. (See

R. 553-2, Pls.” Corrected Resp. at 39.) Accordingly, without

more definite, competent evidence to rebut Loizon’s summary

judgment motion, Plaintiffs’ claim against Loizon must fail.

See Butts, 387 F.3d at 924; see also Fed. R. Civ. P. 56(e)

(adverse party must set forth specific facts showing that there

49a

is genuine issue for trial). The Court grants Loizon’s Motion

for Summary Judgment as to Count I.

Finally, the Court rejects the correctional officers’

argument that their conduct was not under the “color of state

law” for purposes of Section 1983 liability. Judge Castillo’s

prior ruling on Defendants’ motion to dismiss rejected this

precise argument, see Fairley v. Andrews, 300 F.Supp.2d

660, 665-66 (N.D. Ill. 2006), and Defendants provide no

basis to revisit it. See Moriarty v. Svec, 429 F.3d 710, 722-23

(7th Cir. 2005) (courts will not reopen already decided issues

unless decision is “clearly ¢rroneous and would work a

manifest injustice”); see also Power v. Summers, 226 F.3d

815, 820 (7th Cir. 2000) (“Any deprivation under color of

law that is likely to deter the exercise of free speech, whether

by an employee or anyone elsé, is actionable”).

2. IAD and Sheriff's | Office Investigators

a. Timothy Kaufmann‘

Fairley’s First Amendment claim against Sheriff's Office

Investigator Timothy Kaufmann is premised on Kaufmann’s

investigation into the Lipscomb assault. More specifically,

Fairley contends that his protected speech concerning the SI-2

incident was a motivating factor behind Kaufmann’s

retaliation of falsifying the Lipscomb investigation report.

Fairley supports his argument with evidence that Kaufmann

falsely stated in his final report that the Assistant States

Attorney informed Kaufmann that he would not pursue felony

* Because there is no evidence that Defendant Kaufmann harassed

Gackowski, Gackowski voluntarily dismisses Kaufmann from Count

50a

charges against Lipscomb based on Fairley’s inconsistent

statements. (See Defs.’ Stmt. Facts ¢ 302.) Construing the

facts and all reasonable inferences in a light most favorable to

Fairley, Fairley has presented competent evidence in the form

of Kaufmann’s and Park’s deposition testimony that Fairley

informed them of his suspicion that he was being retaliated

against for the July 29, 2000 incident. Fairley also has

presented Assistant States Attorney Park’s deposition

testimony in which Parks denied that he said that the States

Attorney would not bring charges against Lipscomb based on

Fairley’s inconsistent statements. This evidence creates a

genuine issue of material fact that Fairley’s protected speech

about the SI-2 incident was a motivating factor behind

Kaufmann falsifying the Lipscomb report. See Spiegla v.

Hull, 371 F.3d at 942. Finally, Kaufmann’s argument that

Fairley does not have a constitutional right to a police

investigation into the Lipscomb assault does not save the day

because Fairley’s present constitutional claim is based on his

protected speech under the First Amendment and not

Kaufmann’s failure to properly perform a police investigation.

b. Saul Weinstein’

Next, Gackowski contends that his protected speech was

a motivating factor behind Weinstein’s _ retaliation,

specifically, Weinstein’s alleged efforts to hinder the

investigation into Gackowski’s [AD complaint. Gackowski

claims that there was no reason for Weinstcin to put his IAD

complaint on hold pending the Illinois Human Rights

Department’s investigation into his sexual harassment

> Because there is no evidence in the record that Defendant

Weinstein harassed Fairley, Fairley voluntarily dismisses Defendant

Weinstein from Count I. /

Sla

complaint. In support, Gackowski points to evidence that

Weinstein sent his IAD complaint back to Andrews even

though Andrews was one of the subjects of the complaint.

Gackowski also presents competent evidence that Andrews

berated him and threatened to sue him after Weinstein

returned the IAD complaint to him. Finally, Weinstein’s

argument that he was not aware of Gackowski’s

constitutionally protected speech is rebutted by the fact that

Weinstein received and reviewed Gackowski’s IAD complaint

which included such information. As such, viewing the

evidence in favor of Gackowski, there is a genuine issue of

material fact that Gackowski’s protected speech was a

motivating factor behind Weinstein’s delaying the LAD

investigation and Weinstein’s returning the [AD complaint to

Andrews. Accordingly, the Court denies Weinstein’s Motion

for Summary Judgment as to Count I of the Second Amended

Complaint.

c. Gregory Ernst

Last, Plaintiffs fail to develop their conclusory allegation

that their protected speech was a motivating factor in Internal

Affairs Investigator Ernst’s harassment or retaliation.

Specifically, Plaintiffs argue that Ernst did not protect them

after they reported inmate abuse and the resultant harassment,

but instead lied, intimidated Gackowski, and generally

hindered Plaintiffs’ efforts to speak out. Plaintiffs, however,

do not point to facts in the record supporting these allegations.

Further, Plaintiffs argue that Ernst falsely reported to

Weinstein that Gackowski filed a harassment complaint with

the Illinois Human Rights Department, but in fact, Gackowski

did file such a complaint and also a charge of discrimination

with the EEOC. (Pisy Stmt. Add’l Facts 44 327-30; Defs.’

Stmt. Facts ¢ 159.) Simply put, Plaintiffs do not point to

definite, competent evidence supporting their argument that

52a

their protected speech was the motivating factor behind

Ernst’s alleged retaliation. See Butts, 387 F.3d at 924; see

also Corley v. Rosewood Care Center, Inc. of Peoria, 388

F.3d 990, 1001 (7th Cir. 2004) (court will not root through

thousands of pages of record to make case for plaintiffs).

Considering the evidence and all reasonable inferences in a

light most favorable to Plaintiffs, they have not established a

genuine issue of material fact as to their claim against Ernst.

Therefore, the Court grants Ernst’s Motion for Summary

Judgment as to Count I.

C. Defendants’ Rebuttal

In their initial briefs, Defendants do not argue that they

would have taken the same action in the absence of Plaintiffs’

protected speech, and thus Defendants have waived this

argument for purposes of their summary judgment motions.°

See Doherty v. City of Chicago, 75 F.3d 318, 324 (7th Cir.

1996) (“Given our adversary system of litigation, it is not the

role of this court to research and construct the legal arguments

open to parties, especially when they are represented by

counsel.”) (citation omitted); see also Estate of Moreland v.

Dieter, 395 F.3d 747, 759 (7th Cir. 2005) (“Perfunctory or

undeveloped arguments are — >

° In his reply brief, Weinstein contends that he would have acted

identically in the absence of Gackowski’s protected speech,

although Weinstein does not address the issue of returning the IAD

complaint to Andrews, a named subject in Gackowski’s complaint.

In any event, arguments raised for the first time in a parties’ reply

brief are waived because the non-movant has had no opportunity to

respond. See Kelso v. Bayer Corp., 398 F.3d 640, 643 (7th Cir.

2005).

53a

Because Plaintiffs’ speech is protected under the Connick-

Pickering test and Plaintiffs have presented competent,

specific evidence creating a genuine issue of fact regarding

their speech being the motivating factor in the alleged

retaliation and harassment, the Court denies Andrews’,

Byrne’s, Coffey’s, Prohaska’s, Bercasio’s, Fermaint’s,

Weinstein’s, and Kaufmann’s Summary Judgment Motions as

to Count I of the Second Amended Complaint. The Court

grants Loizon’s and Ernst’s Motions for Summary Judgment

as to Count I.

I]. Plaintiffs’ Monell Claim Against Sheriff Sheahan

Plaintiffs contend that the “code of silence” at the

CCDOC is a deeply ingrained, unwritten mandate that

CCDOC correctional officers do not report other employees’

misconduct, especially concerning allegations of excessive

force and inmate abuse. As such, Plaintiffs assert that

violators of the code of silence are subject to harassment and

intimidation ranging from name calling to physical threats.

Based on the code of silence, Plaintiffs contend that Sheriff

Sheahan, in his official capacity, is liable for their

constitutional injuries.’

’ Plaintiffs’ First Amendment claims against the individual

Defendants in their official capacities are actually claims against the

Sheriff's Office as a local governmental unit. See Kentucky v.

Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d

114, 121 (1985) (citing Monell v. Dep't of Soc. Servs., 436 U.S.

658, 690, n.55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). In other

words, official capacity suits brought against individuals are

“another way of pleading an action against an entity of which an

officer is an agent.” Kentucky v. Graham, 473 U.S. at 165 (citation

omitted). Accordingly, Sheriff Sheahan is the only proper

Defendant in Plaintiffs’ Monell claim.

54a

To establish liability against Sheriff Sheahan in his official

capacity under 42 U.S.C. § 1983, Plaintiffs must show that

(1) they suffered 2 deprivation of a federal right,*® (2) as a

result of either an express municipal policy, widespread

custom, or deliberate act of a decision-maker with final

policy-making authority, which (3) proximately caused their

constitutional injuries. Ovadal v. City of Madison, 416 F.3d

531, 535 (7th Cir. 2005). Under the second requirement,

Plaintiffs must establish that an official custom or policy

caused the deprivation of their constitutional rights. Monell v.

Dep't of Soc. Serv:., 436 U.S. 658, 690-91 98 S. Ct. 2018,

56 L. Ed. 2d 611 (1978). To show that an official custom or

policy caused the violation of such rights, Plaintiffs must

establish one of tke following scenarios: (1) there was an

express policy tha!, when enforced, causes a constitutional

deprivation; (2) there was a widespread practice that, although

not authorized by written law or express policy, is so

permanent and well-settled that it constitutes custom or usage

within the force of law; or (3) a person with final

policymaking authority caused the constitutional injury.

Calhoun v. Ramsey, 408 F.3d 375, 379 (7th Cir. 2005).

A. Widespread Practice

Plaintiffs contend that the code of silence was so

permanent and well-established that it constituted custom or

usage within the force of law under the second Monell prong.

Because Plaintiffs bear the burden of proving the code of

* Sheriff Sheahan makes no arguments as to whether Plaintiffs

suffered a deprivation of a federal right. The Sheriff has therefore

waived any such argument. Estate of Moreland v. Dieter, 395 F.3d

747, 759 (7th Cir. 2005) (“Perfunctory or undeveloped arguments

are waived.”).

55a

silence at trial, Plaintiffs must set forth specific facts showing

that there is a genuine issue of material fact regarding the

existence of the code of silence. See Palmer v. Marion

County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986)). “When a plaintiff chooses to challenge

a municipality’s unconstitutional policy by establishing a

widespread practice, proof of isolated acts of misconduct will

not suffice; a series of violations must be presented to lay the

premise of deliberate indifference.” Palmer, 327 F.3d at 595-

96 (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-

24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). Thus, under the

Monell widespread practice theory, Plaintiffs must establish an

unconstitutional pattern of conduct, including incidents other

than ones involving them, to give rise to the inference that an

unconstitutional custom, policy, or practice exists. See Tabor

v. City of Chicago, 10 F.Supp.2d 988, 993 (N.D. Ill. 1998);

see also Palmer, 327 F.3d at 595-96 (plaintiff failed to set

forth sufficient proof of widespread practice based on failure

to present evidence other than incident in which he was

involved).

Here, Plaintiffs assert that “there is overwhelming

evidence to support the inference of a widespread custom of

concealing mistreatment of prisoners and harassing officers

who are perceived to be or who actually refuse to participate

in the concealment of the mistreatment of prisoners.” (R. 549-

1, Pls.” Resp. to Sheahan’s Mot. Summ. J. at 1.) Sheahan, on

the other hand, contends that Plaintiffs have not set forth facts

establishing that the correctional officers subjected other

CCDOC employees to harassment or retaliation pursuant to

the code of silence.

Besides Plaintiffs’ evidence concerning their own

experiences with the code of silence, Plaintiffs have also

56a

produced specific, competent evidence establishing a genuine

issue Of material fact regarding the existence of the code of

silence as applied to other correctional officers. Plaintiffs, for

example, present the deposition testimony of Charles Holman,

who was an Investigator in the Internal Affairs Department

from 1993 to 2003. (Pls.’ Stmt. Add’l Facts § 423). The

pertinent part of Holman’s deposition states:

Q: Are you aware of any officers who have filed

Claims of harassment with IAD where they’re claiming

that they were harassed for reporting other officers?

A: Yes.

Q: Wha officers?

A: I’ve done over 400 investigations. I can’t think of

everybody’s name. But it’s a common occurrence.

When you have witnesses that go against the grain and

testify truthfully in these statements and in their

investigations, they’re routinely harassed by

supervisors, by other officers.

(Pis.’ Stmt. Add’l Facts 44 423, 424, Pls.” Ex. 22, Holman

Dep. at 461-62.) Holman then remembered that he personally

investigated a specific incidence and individual who

experienced such harassment and gives an explanation of the

situation. (/d., Pls.” Ex. 22, Holman Dep. at 462-65.)

Although Defendants assert that Holman’s testimony amounts

to inadmissible hearsay, speculation, and opinion, and argues

that it lacks a proper foundation, Defendants fail to explain

why Holman’s testimony is such. Nevertheless, although

hearsay is inadmissible at summary judgment as well as trial,

see Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.

1997), Holman’s testimony is based on his own personal

S7a

knowledge of incidents that he investigated, as well as his ten

years working as an IAD investigator. See Fed.R.Evid. 602

(“A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has

personal knowledge of the matter.”); see also United States v.

Joy, 192 F.3d 761, 767 (7th Cir. 1999) (“Because most

knowledge is inferential, personal knowledge includes

opinions and inferences grounded in observations or other

first-hand experiences.”). While the individuals’ comments to

Holman during the course of his investigations may not be

admissible for the truth of the matter, Holman’s investigative

activity and lay person opinions based on such activity would

be admissible. Therefore, Defendants’ evidentiary objections

fail.

Plaintiffs also present deposition testimony of a former

correctional officer, Ricky Rodriguez, who worked in

Division I from 1998 to 2003. (Pls.’ Stmt. Add’l Facts 4 41.)

Rodriguez’s deposition testimony states in relevant part:

Q: Have you ever reported any instance of an officer

using excessive force on an inmate?

A: No, I haven’t.

Q: Why not, if you witnessed it?

A: One of the things that they teach us is that we as

officers, we are the men in blue, the officers in blue,

and the inmates are in brown. We have to stick with

our own kind. Basically you can’t go against us

because they are going to go against you anyway, so

there is that kind of like code of silence.

58a

Q: Who taught you this kind of code of silence that

_ you just testified to?

A: This code of silence, it’s taught in the Academy.

Q: I thought when we went through the general

orders, the general orders provide that if you see a

correctional officer using excessive force on an

inmate, you are ethically obligated to report it. Do you

recall reviewing a general order providing that??

A: Yes, I did.

Q: Do you recall you testifying you abided by the

general orders when you were a correctional officer?

A: I said that. But if any officer within the jail sees a

beating, nobody is going to tell about it, or if not a

beating, they will witness an inmate getting slapped,

sucker punched, even while he is cuffed and shackled.

It may not be an aggressive beating. Everybody

witnesses and nobody talks about it.

(/d., Pis.” Ex. 33, Rodriguez Dep., at 208-09.)

” Sheriff Sheahan argues that the CCDOC General Orders’

requirement that all correctional officers must report other officers’

misconduct refutes Plaintiffs’ argument that the code of silence

existed. The Sheriff's argument is baseless because courts look to

a governmental unit’s actual practice, as opposed to its written

policy, when determining whether a widespread practice exists

under the second Monell scenario. See Woodward v. Corr. Med.

Servs. of lll., Inc., 368 F.3d 917, 927 (7th Cir. 2004).

59a

Despite Defendants’ arguments to the contrary,

Rodriguez’s comments are based on his own personal

experience at the CCDOC Training Academy and as a

correctional officer at the CCDOC. See Fed.R.Evid. 602; see

also United States v. Joy, 192 F.3d at 767. As the Seventh

Circuit has explained “inferences reached from a witness’s

observations need not reach the level of absolute certainty to

be admissible. Rather, the key question for the trial court is

whether a reasonable trier of fact could believe that a witness

had personal knowledge of the facts about which he testified.”

Joy, 192 F.3d at 767 (internal citation omitted).

Meanwhile, Plaintiffs have set forth competent evidence

of additional incidences to support their theory that the

widespread practice of the code of silence existed, including

Sergeant Arthur Perry reporting a separate incident of inmate

abuse and the resultant harassment. (Pls.’ Stmt. Add’! Facts

qq 126-129, 135, 138; Defs. Stmt. Facts 44 294-96.) The

Court need not discuss the details of these additional instances

because considering the facts and all reasonable inferences in

Plaintiffs’ favor, Rodriguez’s and Holman’s testimony

sufficiently establishes that there is a genuine issue of material

fact for trial concerning the existence of the code of silence.

See Palmer, 327 F.3d at 595.

B. Force of Law

Next, the Court must determine whether the code of

silence had the “force of law.” There are two routes Plaintiffs

may take to establish that the code of silence has the force of

law. See Woodward v. Corr. Med. Servs. of Ill., Inc., 368

F.3d 917, 927 (7th Cir. 2004); Gable v. City of Chicago, 296

F.3d 531, 538 n.3 (7th Cir. 2002). First, municipal customs

have the force of law if the custom itself is unconstitutional.

Woodward, 368 F.3d at 927; Gable, 296 F.3d at 538 n.3.

60a

Second, Plaintiffs may indirectly establish that the custom or

policy has the force of law “by showing a series of bad acts

and inviting the court to infer from them that the

policymaking level of government was bound to have noticed

what was going on and by failing to do anything must have

encouraged or at least condoned, thus in either event

adopting, the misconduct of subordinate officers.” Woodward,

368 F.3d at 927 (citing Estate of Novack ex rel. v. County of

Wood, 226 F.3d 525, 530 (7th Cir. 2000) (citation omitted)).

Plaintiffs choose the second route, and therefore, must

establish that Sheriff Sheahan was deliberately indifferent to

the fact that the code of silence’s known or obvious

consequences would result in the deprivation of a

constitutional right. Gable, 296 F.3d at 537-38 (citing Board

of County Comm’rs v. Brown, 520 U.S. 397, 406-07, 117

S.Ct. 1382, 137 L.Ed.2d 626 (1997)); see also City of Canton

v. Harris, 489 U.S. 378, 388-89, 109S. Ct. 1197, 103 L. Ed.

2d 412 (1989). In other words, this “culpability” standard

requires a showing of the Sheriff's conscious disregard of the.

policy’s known or obvious dangers. Armstrong v. Squadrito,

152 F.3d 564, 577 (7th Cir. 1998); West v. Waymire, 114

F.3d 646, 651 (7th Cir. 1997). In Waymire, the Seventh

Circuit explained that “a deliberate choice to avoid an obvious

danger ... is actionable under 42 U.S.C. § 1983 if the choice

results in harm to a protected interest, even though the

defendant obtusely lacks actual knowledge of the danger.” /d.

at 651. Thus, Plaintiffs need not show that Sheziff Sheahan

had actual knowledge of the danger concerning the code of

silence to establish their claim under Monell. See id.

In support of their argument that Sheriff Sheahan was

deliberately indifferent to the fact that the code of silence’s

known or obvious consequences would result in the

deprivation of a constitutional right, Plaintiffs have presented

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evidence concerning the inadequacy of the reporting

mechanisms within CCDOC, First, they have presented

evidence creating a genuine issue of material fact that Sheriff

Sheahan did not properly supervise investigations of officer

misconduct. Plaintiffs base their argument on Sheriff

Sheahan’s deposition testimony that he never reviewed IAD

investigations as required under General Order 4.1. (Pls.’

Stmt. Add’ Facts 44 449, 450.) Under General Order 4.1, the

IAD is under the direction of the Sheriff of Cook County. (/d.

4 443.) Aliso pursuant to this General Order, after an

investigator conducts an independent investigation and

“sustains” the allegations, IAD sends the Sheriff copies of the

investigation. (/d. 4 444-46.) Despite General Order 4.1,

Sheriff Sheahan testified at his deposition that he has never

received any reports of excessive force allegations or written

reports from IAD containing information regarding their

investigations, except for recommendations regarding

termination. (/d. 44 449, 450.) Although Defendants counter

with the fact that the Undersheriff and Inspector General

review all investigations, Plaintiffs have presented Sheriff

Sheahan’s deposition testimony that he did not receive any

written reports from the Inspector General about such

investigations. (Jd. § 451.)

Also, Plaintiffs set forth additional evidence creating a

genuine issue of material fact concerning the inadequacy of

the reporting mechanisms within the CCDOC. Plaintiffs, for

example, have presented evidence that officers routinely failed

to report various incidents at the CCDOC and that IAD

supervisors sometimes requested IAD investigators to change

their findings. (Jd. (4 470, 474; Pls.’ Ex. 22, Holman Dep.

at 170-71.) Viewing the facts and all reasonable inferences in

favor of Plaintiffs, there is a genuine issue of material fact that

Sheriff Sheahan was deliberately indifferent that the code of

silence’s known or obvious consequences would result in the

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deprivation of a constitutional right based on the inadequacy

of the reporting mechanisms within the CCDOC.

As the Supreme Court explained in Board of County

Comm'rs v. Brown, “[i]f a program does not prevent

constitutional violations, municipal decisionmakers may

eventually be put on notice that a new program is called for.

Their continued adherence to an approach that they know or

should know has fatled to prevent tortious conduct by

employees may establish the conscious disregard for the

consequences of their action -- the “deliberate indifference’ --

necessary to trigger municipal liability.” /d. at 407. Here,

Plaintiffs have set forth competent evidence to create a

genuine issue of material fact that the CCDOC’s inadequate

reporting mechanisms failed to prevent its correctional

officers from committing constitutional torts.

C. Causal Link

Finally, Plaintiffs must establish a direct causal link

between the alleged code of silence and their constitutional

injuries, namely, that the code of silence was the “moving

force” behind their constitutional deprivation. Canton v.

Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1208-09, 103

L.Ed.2d 412 (1989); Arlotta v. Bradley Ctr., 349 F.3d 517,

522 (7th Cir. 2003). “Moving force” is “when execution of

a government’s policy or custom ... inflicts the injury that the

government as an entity is responsible under § 1983.” Estate

of Novack, 226 F.3d at 531 (quoting Monell, 436 U.S. at

694): see also Woodward, 368 F.3d at 928.

Construing the evidence and all reasonable inferences in

a light most favorable to Plaintiffs, they have presented

definite, competent evidence creating a genuine issue of

material fact that they were harassed and retaliated against for

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breaking the code of silence. Fairley, for example, testified

that on July 29, 2000 he saw correctional officers beat inmates

in SI-2 and consequently told the officers to stop beating the

inmates. After these inmates filed a lawsuit in state court,

Plaintiffs informed other correctional officers and Division I

personnel that they would tell the truth if asked about the July

29, 2000 incident. Both Fairley and Gackowski testified that

after the July 29, 2000 incident, certain correctional officers

and supervisors harassed and retaliated against them by “dry

humping” them, calling them inmate lovers, physically

threatening them, and falsifying reports about them.

Accordingly, Sheriff Sheahan has failed in his burden of

establishing the lack of any genuine issue of material fact as

to Plaintiffs’ Monell claim. See Celotex Corp. v. Catrett, 477

U.S. at 323. The Court thus denies Sheriff Sheahan’s Motion

for Summary Judgment.

It. Civil Conspiracy Claim -- Count I

Finally, Plaintiffs allege that Defendants conspired to

deprive them of their constitutional right to free speech. To

establish a Section 1983 claim through a civil conspiracy

theory, Plaintiffs must demonstrate that (1) Defendants had an

express or implied agreement to deprive Plaintiffs of their

constitutional rights, and (2) Plaintiffs were deprived of their

constitutional rights by Defendants’ overt actions in

furtherance of the agreement. Williams v. Seniff, 342 F.3d

774, 782 (7th Cir. 2003); Scherer v. Balkema, 840 F.2d 437,

442 (7th Cir. 1988). “To be liable as a conspirator you must

be a voluntary participant in a common venture, although you

need not have agreed on the details of the conspiratorial

scheme or even know who the other conspirators are. It is

enough if you understand the general objectives of the

scheme, accept them, and agree, either explicitly or

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implicitly, to do your part to further them.” Jones v. City of

Chicago, 856 F.2d 985, 992 (7th Cir. 1988).

Defendants contend that Plaintiffs have failed to set forth

any evidence creating a genuine issue of material fact that

Defendants reached an agreement to deprive Plaintiffs of their

First Amendment rights. The Court agrees. Although

Plaintiffs may establish a conspiracy through circumstantial

evidence, such evidence cannot be speculative. Seniff, 342

F.3d at 785. As such, a civil conspiracy claim cannot survive

summary judgment if the arguments and supporting evidence

are “vague, conclusionary and include no overt acts

reasonably related to the promotion of the alleged

conspiracy.” Amundsen v. Chicago Park Dist., 218 F.3d 712,

718 (7th Cir. 2000) (citation omitted).

Here, Plaintiffs’ entire conspiracy argument consists of

one paragraph, in which they make the following conclusory

statement: “Accepting plaintiffs’ facts as true, which the

Court must do on summary judgment, there is no option but

to find sufficient evidence of a conspiracy to engage in actions

calculated to hinder plaintiffs’ efforts to speak out and to

discredit them when they did.” (R. 553-2, Pls.” Corrected

Resp. at 46.) This argument alone does not raise a genuine

issue of material fact as to Plaintiffs’ conspiracy claim.

Therefore, the Court grants the Defendants’ Motion for

Summary Judgment as to Count II of the Second Amended

Complaint.

CONCLUSION

For these reasons, the Court grants in part and denies in

part Defendant Sheriff Michael Sheahan’s Motion for

Summary Judgment. [R. 435-1.] The Court grants in part and

denies in part Defendant Edward Byrne’s and Defendant

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Dennis Andrews’ Motions for Summary Judgment. [R. 429-1,

450-1.] Further, the Court grants in part and denies in part

Defendants Evan Fermaint’s, Noberto Bercasio’s, Fred

Coffey’s and Ronald Prohaska’s Motion for Summary

Judgment. [R. 449-1.] The Court grants Defendant Juan

Diaz’s, Defendant Patrick Loizon’s, and Gregory Ernst’s

Motions for Summary Judgment in their entirety. [R. 432-1,

433-1, 456-1.] Last, the Court grants in part and denies in

part Defendant Timothy Kaufmann’s and Saul Weinstein’s

Motion for Summary Judgment. [R. 434-1, 436-1.]

Date: May 4, 2006

ENTERED

/s/

AMY J. ST. EVE

United States District Court Judge

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APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE Northern District of [Ninois

Eastern Division

Case No.: 1:03-cv-05207

[Filed May 4, 2006]

Roger Fairley, et al. )

Plaintiff, )

)

Vv. )

)

Dennis Andrews, etal. )

Defendant. )

)

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Thursday, May

4, 2006:

MINUTE entry before Judge Amy J. St. Eve :Defendant

Sheriff Michael Sheahan’s Motion for Summary Judgment

[435] is granted in part and denied in part. Defendant Edward

Byrne’s and Defendant Dennis Andrews’ Motions for

Summary Judgment [429] [450] are granted in part and denied

in part. Defendants Evan Fermaint’s, Noberto Bercasio’s,

Fred Coffey’s and Ronald Prohaska’s Motion for Summary

Judgment [449] are granted in part and denied in part.

67a

Defendant Juan Diaz’s, Defendant Patrick Loizon’s, and

Gregory Ernst’s Motions for Summary Judgment [432] [433]

[456] are granted. Last, the Court grants in part and denies in

part Defendant Timothy Kaufmann’s and Saul Weinstein’s

Motion for Summary Judgment [434] [436]. Mailed

notice.(tmh, )

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