Petition for Writ of Certiorari — Andrews v. Fairley

OFFICE OF THE CLERK >

Jn Whe CLERK

Supreme Court of the United States

DENNIS ANDREWS, TIM KAUFMANN, SAUL WEINSTEIN,

NOBERTO BERCASIO, FRED COFFEY, EVAN FERMAINT,

RONALD PROHASKA AND EDWARD ByRNE,

Petitioners,

ROGER FAIRLEY AND RICHARD GACKOWSKI,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

MICHABLJ. HAYES, Sr. TerRRY E. JOHNSON

JOHN T. RoackE Counsel of Record

JOEL C. GRISWOLD DaNnieL P. Durry

K&L GATES PETERSON JOHNSON

THREE First NATIONAL PLAZA & MURRAY, S.C.

70 West Mapison Sr., Ste.3100 120 NortH LASALLE STREET

Cuicaco, IL 60602-4207 SUITE 2850

(312) 372-1121 Curicaco, IL 60602

(312) 782-7150

MatTHew P. WatsH II tiohnson@pjmlaw.com

STEVEN M. KLACZYNSK!

HINSHAW & CULBERTSON LLP

222 NortH LaSAtte St., Ste. 300

Cuicaco, IL 60601

(312) 704-3261

Counsel for the Petitioners

Becker Gallagher + Cincinnati, OH + Washington, D.C. - 800 90. SOO!

QUESTION PRESENTED

I. Whether the doctrine of Prior Restraint makes

actionable harassment or physical “threats of

punishment’ alleged to have been made to “discourage

future speech.”

1}

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 are Dennis Andrews, Tim

Kaufmann, Saul Weinstein, Noberto Bercasio. Fred

Coffey, Evan Fermaint, Ronald Prohaska and Edward

Byrne. Each was an appellee below.

The respondents here and appellants 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: Patrick Loizon, Gregory Ernst,

Gabriel Ochoa, Juan Diaz, Michael Sheahan, and Cook

County.

The Sheriff of Cook County, Thomas Dart, was an

appellee below, but is not a petitioner.

Ll]

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO 'THE PROCEEDING

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

I. Factual Background

Il. Proceedings Below

REASONS FOR GRANTING THE PETITION

L. THE DOCTRINE OF PRIOR RESTRAINT

DOES NOT MAKE ACTIONABLE, UNDER

THE FIRST AMENDMENT TO THE

UNITED STATES CONSTITUTION,

HARASSMENT OR PHYSICAL “THREATS

OF PUNISHMENT”

CONCLUSION

APPENDIX

Appendix A Seventh Circuit Opinion/

Judgment, dated August 20, 2009

Appendix B: District Court Memorandum

Opinion and Order (R.1012), dated September

26, 2007

Appendix C: District Court Minute Entry

(R.1013), dated September 26, 2007

Appendix D: District Court Judgment (R.1014),

dated September 26, 2007 48a

Appendix E: Seventh Circuit Order denying

rehearing, dated September 21, 2009 . o0a

TABLE OF AUTHORITIES

CASES

Alexander v. United States,

509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 44]

(1993) .... Geel is we core ‘ff

Babbitt v. United Farm Workers National Union,

442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895

(1979)

Fields v. Byrne,

No. 00 L 9339 (Cir. Ct. Cook County filed Aug.

Se, rer aa ee passim

Garcetti v. Ceballos,

547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689

(2006)

Cross v. FBL Financial Services, Inc.,

-- US. ---, 129 S.Ct. 2343, 174 L.Ed.2d 1

(2009)

Mt. Healthy Board of Education v. Doyle,

429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 4’

(1977)

United Public Workers v. Mitchell.

330 U.S. 75, 67 S.Ct. 556 (1947)

United States v. American Library Assn., [nc.,

539 U.S. 194 (2003)

STATUTES

28 U.S.C. § 1254(1)

28 U.S.C

28 U.S.C. §

42 U.S.C. §

OTHER AUTHORITIES

Kmerson, Thomas The Doctrine of Prior Restraint

20 LAW & CONTEMP. PROBS. 648 (1955)

M. Nimmer, Nimmer on Freedom of Speech, $4.03

(1984)

PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Seventh Circuit Court of Appeals

is reported at 578 F.3d 518(7™ Cir. 2009). App., infra,

la-l6ha

JURISDICTION

The district court had jurisdiction of this case

under 28 U.S.C. § 1331. The court of appeals held that

it had jurisdiction to review the district court’s order

under 28 U.S.C. § 1291. (578 F.3d at 522) The court

of appeals’ judgment was entered on August 20, 2009.

A timely petition for rehearing was filed on September

3, 2009. (App., infra, 50a) The petition was denied on

September 21, 2009. (/d.) The jurisdiction of this

Court ts 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 speech

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 hable to the party injured in an

action at law, suit in equity, or other

proper proceeding for redress .. .

STATEMENT OF THE CASE

Respondents, Roger ‘fairley and_ Richard

Gackowski, two former correctional officers at the

Cook County (Illinois) Department of Corrections,

claim that they were “compelled” to quit their jobs due

to on-the-job harassment they say was directed at (1)

preventing them from reporting to their superiurs

officer-on-inmate abuses they claim to have witnessed;

and (2) “discouraging” their future testimony in a

lawsuit that had been brought by present and former

inmates against various of their fellow officers.

Petitioners have denied the allegations and

contested their veracity at every stage of the litigation.

After a series of pre-trial rulings that they believed

adverse to their case, Respondents requested that

summary judgment be entered against them. The

appeal underlying this Petition followed, resulting in

the reversal of the district court’s judgment order “|t]o

the extent that it dismissed the [plainitffs’] prior

restraint claim.” 578 F.3d at 526.

“actual Background

Plaintiffs, Roger Fairley and Richard Gackowsk},

were formerly employed as correctional officers at th

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

ach of the Defendants were also employed in various

capacities at the Cook County Department of

Corrections. (R. 257)

Fairley and Gackowski both allege that they were

harassed, teased and physically assaulted while at

work by Petitioners Bercasio and Fermaint, two of

their fellow correctional officers. (/d.) Fairley alleges

that another of his former fellow correctional officers,

Petitioner Coffey, threatened “to beat him up” in “late

1998 or early 1999” and “warned” him in “October or

November 2002 . that officers who tell on other

officers ‘usually get met in the parking lot.” (Jd. at

149) Fairley further alleges that Petitioner Byrne

denied him paternity leave and overtime pay and

ignored a request for back up. (/d. at 443,50) and

that Petitioner Andrews, the Superintendent of the

Division, “failed to ensure [fhis] assignments were

being rotated properly.” (/d. at 1] 39, 43) Gackowski

alleges that Andrews “threatened to sue him for

slander” (/d. at J 56) and that Defendant Weinstein

“stalled fan] investigation” into his internal

complaints. (/d. at §| 57)

soth Fairley and Gackowski ascribe the motive for

the complained of actions as their having been witness

to officer-on-inmate violence, and their subsequent

willingness to testify in favor of certain inmate

plaintiffs in a civil lawsuit, Fields v. Byrne, No. 00 L

9339 (Cir. Ct. Cook County filed Aug. 16, 2000)

(hereafter “Fields”). Ud. at 19 37-51 52-62)

' Reference to “R.” is to the number assigned by the clerk on the

civil docket

The Fields case arose from an altercation between

correctional officers and inmates in a section of the jail

known as “Special Incarceration Unit 2,” or “SI-2." Ud

at 4 28) The resulting lawsuit named Petitioners

Fermaint, Bercasio and Byrne as defendants, together

with the Executive Director of the jail, the then

Superintendent of the Division housing “SI-2,” a

Correctional Captain, two Correctional Sergeants, and

twelve other correctional officers — none of whom are

parties to this suit. (Ud. at 4] 34)

In December 2002 Fairley received a subpoena to

testify in the Fields case. Later that month, Fairley

claims an inmate attacked him with a shank, cutting

him on the wrist. 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 claims that

Bercasio later remarked: “You see that, Fairley? You

*** with people, that’s how you get stabbed.” (578

Kk’ 3d at 520)

Prior to Fairley’s subpoenaed = deposition,

Gackowski testified that Petitioner Prohaska

threatened both he and Fairley, saying, “|I|f Fairley

goes into court on this SI-2

case ... and tells the truth,

he will **** everyone involved.... We always knew he

was a weak link and when a weak link can

everyone in the chain, then we have to bury the weak

link. It’s nothing personal. It’s just business.... Just

like with your complaint trying to **** fellow officers.”

(578 F.3d at 521)

On January Y, 2003, Gackowski submitted a

written complaint to IAD concerning Prohaska’

alleged threat. (RK. 25/ at § 61) On January LO, 2003

Gackowski was offered a transfer anywhere on the jail

compound. (R. 553-1) Gackowski declined the transfer

offer and intormed IAD investivators that he

leaving the CCDOC. Ud

fairley last worked a shift at the CCDOC in

January 2003, prior to his : ubpoenaed deposition R

553-1) Guackowski worked his last shifl in January

2003. as well. Ud.) 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. Ud

(;ackowski sat. for a deposition in the Fields ca

after his resignation from the CCDOC. (Kh. 448)

Plaintiffs concede that none of the Petitioners — nor

anyone else associated with the Cook County

Department of Corrections — did anything to prevent

either of them from testifying on their appointed day

(R. 447-1]

On July 25, 2003, Fairley and Gackowski filed th

underlying lawsuit it. ]

|

June of 2005. (R. 420) Both Fairley and Gackowski

testified for the plaintiffs. (R. 462-1, R. 465-1) The

jury returned a verdict in favor of all of the defendant

he /'telds case was tried before a jury in May and

correctional officers, including Fermaint, Bercasio and

>) rne, after deliberating for Ik than on hour it

+Z0))

il. Proceedings Below

After the close of discovery, but before tmal, the

district court issued a number of rulings on the parties’

motionsindimine. Plaintiffs sought reconsideration of

one of the rulings, or in the alternative for a stay of the

trial and u certification of the question to the Seventh

Circuit Court of Appeals. The motion was denied

(App., infra, 19a -44a) Plaintiffs then filed a pleading

that requested the district court enter summary

judgment against them in order to pursue an appeal!

(R.1011-1). The district court granted the motion and

entered judgment in favor of the defendants. (R.1014

’

(on appeal, the Seventh Cuircuit construe the

leme ‘der as a “conse lgment’ and held that

judgment order asa consent judgment and held tha

it had jurisdiction to consider the merits of the appeal!

(578 F.3d at 522)

The panel held that Garcetti v. Ceballos, 547 U.S

410, 1268.Ct. 1951, 164 L.fhd.2d 689 (2006), served to

bar the plaintiffs’ cause of action insofar as it was

based on intra-jail reporting, but found that, to the

extent the claims were based on an alleged effort to

prevent the plaintiffs future testimony in the Fields

cuse, that the plaintiffs could “recover trom any

defendants” who made “threats of punishment

designed to discourage future speech.” 578 F.3d at

IZ)

the panel imposed two “additional requirement

First, “Plaintiffs must show that their potential

testimony, not their internal complaints, caused the

assaults and threat 578 F.3d at 525 Thi

iccording to the panel, “mean: but-for causation ld

ry

(citing Gross v. FBL Financial Services, Inc., --- U.S

----, 129 S.Ct. 2348, 174 L.Ed.2d 119 (2009); Mt.

Healthy Board of Education v. Doyle, 429 U.S. 274, 97

S.Ct. 568, 50 L.Ed.2d 471 (1977)). Second, the panel

required “proof of damages” be shown. The panel

posited the “largest item” of damages “will be lost

income, if plaintiffs can establish that the threats

caused them to quit.” 578 F.3d at 526. But held that

“(lesser threats, defamation, and battery ... alsocan

lead to damages, if these are the sort of harms that

would cause a reasonable person to keep quiet.” Jd.

Petitioners filed a Motion for Rehearing and

Rehearing En Banc. The Motion was denied. (App.,

infra, 50a)

REASONS FOR GRANTING THE PETITION

By way of an expansive reading of the doctrine of

“Prior Restraint,” the Seventh Circuit opinion at issue

effectively transforms the most basic of juvenile,

schoolyard threats -- “if you tell on me, I'll beat you up”

into a prima facie federal cause of action. The only

allegation necessary to achieve a trial on the merits in

federal court — other than the allegation of the “threat”

itself — is that the “threat” involve state or federal

employees rather than schoolchildren.

The panel decision imports the doctrine of “prio:

restraint” into the area of public employment law in an

unprecedented manner and impermissibly expands the

reach of a doctrine that this Court has, heretofore,

expressly confined to state actions that rise to a “legal

impediment ... to... expressive activity.” See

Alexander v. United States, 509 U.S. 544, 551, 113

|

S.Ct. 2766, 125 L.Ed.2d 441 (1993). The opinion

8

promises to — quite literally — make a federal case (by

the legion) out of what would otherwise be run-of-the-

mill workplace frictions between public employees that

should, in practice, be resolved within the workplace

instead of federal court.

The opinion makes actionable any on-the-job

statement or act alleged to have been “designed to

discourage future speech.” 578 F.3d at 525. Further,

under the construction adopted by the panel, the

offending statement or act is actionable without regard

to whether it actually discouraged or prevented

whatever “future speech” may be at issue. Instead, the

test is objective, permitting the award of damages if it

is determined that the offending statement or act

“would cause a reasonable person to keep quiet.” Id.

To equate an allegation of harassment or a physical

“threat of punishment” made on the job between two

state employees with administrative censorship, an

injunction, or a gag order for purposes of the doctrine

of prior restraint Is to trivialize the First Amendment.

It would, too, serve to lower the bar of justiciability

beyond the threshold required by Article III.

To permit — as the decision at issue does — everyday

workplace frictions to be re-cast as federal lawsuits

couched in the First Amendment promises both to

diminish the import of the First Amendment and

inundate the federal court system.

9

THE DOCTRINE OF PRIOR RESTRAINT

DOES NOT MAKE ACTIONABLE, UNDER

THE FIRST AMENDMENT TO THE UNITED

STATES CONSTITUTION, HARASSMENT OR

PHYSICAL “THREATS OF PUNISHMENT”

“Prior restraint” has traditionally described

“administrative and judicial orders forbidding certain

communications when issued in advance of the time

that such communications are to occur.” Alexander v.

United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125

L.Ed.2d 441 (1993) (quoting M. Nimmer, Nimmer on

Freedom of Speech, §4.03, p. 4-14 (1984). “Temporary

restraining orders and permanent injunctions — /.e.,

court orders that actually forbid speech activities -- are

classic examples of prior restraints.” Alexander, 509

U.S. at 550.

In Alexander, the United States Supreme Court

held that a court order for forfeiture of assets — issued

as punishment for violations of the Racketeering

Influenced and Corrupt Organizations Act — did not

qualify as a prior restraint because “it does not forbid

petitioner from engaging in any expressive activities in

the future, nor does it require him to obtain prior

approval for any expressive activities.” Alexander, 509

U.S. at 550-51. The Court concluded that “[{u]nlike

(an] injunction|| .. . the forfeiture order in this case

imposes no legal impediment to -- no prior restraint on

petitioner's ability to engage in any expressive

activity he chooses.” Id.

In setting out the history of the prior restraint

doctrine, the Court noted that it “expanded this

doctrine to include not only licensing schemes

requiring speech to be submitted to an administrative

10

censor for prepublication review, but also injunctions

against future speech issued by Judges.” Alexander,

550 U.S. at 553, n. 2. “Quite obviously, however, we

have never before countenanced the essentially

limitless expansion of the term that petitioner

proposes.” Id.

More recently, the Court expressly refused to

expand the doctrine of “prior restraint” to encompass

public libraries’ collection decisions. See United States

vy. American Library Assn., Inc., 539 U.S. 194, 209 n. 4

(2003) (rejecting Justice Stevens’s argument, in

dissent, that would have “mistakenly extend[ed] prior

restraint doctrine to the context of public libraries’

collection decisions”)

The panel’s decision below — treating workplac

harassment as a potential “prior restraint” — would

lead to an unprecedented and “essentially limitless

expansion” of the prior restraint doctrine far beyond

that disapproved in Alexander.

Here, for sake of example, the sum and substance

of the claim against one of the Petitioners, former

correctional officer Fred Coffey, is that he threatened

“to beat up” Fairley in “late 1998 or early 1999” and,

on a separate occasion at least three years later

“warned Plaintiff Fairley... that officers who tell on

other officers ‘usually get met in tne parking lot.” (R.

257-12) Fairley did not report the alleged “threats”

(which Coffey denies making in the first instance) to

his superiors or seek to resolve his issue with Coffey

otherwise (through his union, for example). He

instead quit his job and sued Coffey for a “violation” of

his putative First Amendment rights for allegedly

“discouraging” him from later testifying in a pending

1]

lawsuit —a lawsuit to which neither Fairley nor Coffey

was a party.

Under the panel’s decision, Fairley’s claim against

Coffey is actionable despite the fact that the alleged

“threats” were both unfulfilled and did nothing, in

reality, to discourage Fairley’s eventual testimony —

Fairley having admitted that neither Coffey (nor any

of the other defendants), did anything to prevent him

from testifying at any of the sessions he submitted to

depositions in the Fields case, or at trial.

The “threats,” used in the context of prior restraint

jurisprudence, have been — heretofore — confined to

“threats” that a regulation, law or decree would be

enforced. In United Public Workers v. Mitchell, 330

U.S. 75, 67 S.Ct. 556 (1947), for example, the Court

analyzed the effect of the Hatch Act on federal

employees’ First Amendment rights. Considering, in

the first instance, whether the underlying suit was

actionable, the Court analyzed whether there had been

a justiciable injury, setting out a continuum ranging

between a “general threat by officials to enforce those

laws which they are charged to administer” and a

“direct threat of punishment against a named party for

a completed act.” Mitchell, 330 U.S. at 88. The Court

held only an action alleging the latter satisfied the

“case or controversy” requirement of Article II] and

that “a general threat of possible interference with

[First Amendment! rights by the Civil Service

Commission under its rules, if specified things are

done by appellants, does not make a justiciable case or

controversy.” Mitchell, 330 U.S. at 89. See also

Babbitt v. United Farm Workers Nattonal Union, 442

U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979),

(“credible threat” of criminal prosecution under statute

12

at issue satisfied case or controversy requirement of

Article If).

Until now, every actionable prior restraint has

presented some legal impediment to speech before it

occurred — and presented a circumstance by which

speaking in the face of the legal impediment subjected

the speaker to some type of penalty, most commonly a

fine or arrest. See Emerson, Thomas The Doctrine of

Prior Restraint, 20 LAW & CONTEMP. PROBS. 648, 648

(1955).

The Court has never had cause to consider physical

threats in a public workplace as a de facto prior

restraint actionable under the United States

Constitution. And the extension approved by the

Seventh Circuit in the opinion at issue carries with it

the very real prospect of inundating the courts here

with new First Amendment-related employment

litigation.

Hundreds of lawsuits are filed by inmates and

detainees at the Cook County jail annually. Many

hundreds are also disposed of at various stages, as

well, but at any given time, dozens upon dozens of

Cook County correctional officers are mamed

defendants in one or more pending state and federal

civil cases. Dozens upon dozens more are witnesses (or

potential witnesses) to the various claims. (In the

Fields case at issue here the plaintiffs named -- as

party defendants -- nearly 40% of the jail’s correctional

staff on duty in the division at the time of the

incident). Very nearly any correctional officer could

attempt to attribute a fellow correctional officer's

action or inaction as having been motivated by an

attempt to influence potential testimony in one of the

_

whe

hundreds of pending suits. And under the Seventh

Circuit’s formulation of “prior restraint,” that action or

inaction would itself become the basis for yet another

lawsuit if it could be claimed that such action or

inaction would “cause a reasonable person to keep

quiet.”

The Seventh Circuit’s extension of the doctrine of

prior restraint is unprecedented and should not be

permitted to stand.

CONCLUSION

Kor all the reasons set forth herein, the Petitioners

respectfully request that the petition for a writ of

certiorari be granted.

14

Respectfully submitted,

TERRY E. JOHNSON

Counsel of Record

Daniel P. Duffy

PETERSON, JOHNSON & MURRAY, S.C

120 North LaSalle Street, Suite 2850

Chicago, Illinois 60602

(312) 782-7150

tiohnson@pjmlaw.com

Matthew P. Walsh II

Steven M. Klaczynski

HINSHAW & CULBERTSON LLP

222 North LaSalle Street, Suite 300

Chicago, Illinois 60601

(312) 704-3261

Michael J. Hayes, Sr

John T. Roache

Joel C. Griswold

K&L GATES

Three First National Plaza

70 West Madison Street, Suite 3100

Chicago, Illinois 60602-4207

(312) 372-1121

Counsel for Petitioner:

December 21, 2009

APPENDIX

APPENDIX

TABLE OF CONTENTS

Appendix A\ Seventh Circuit Opinion/

Judgment, dated August 20, 2009

Appendix B: District Court Memorandum

Opinion and Order (R.1012), dated September

26, 2007 19:

Appendix C: District Court Minute Entry

( K 1013), dat« d September 26, 2007 49a

Appendix D: District Court Judgment (R.1014),

dated September 26, 2007 AS:

\ppendix E: Seventh Circuit Order denying

rehearing, dated September 21, 2009 50:

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3343

[Filed August 20, 2009]

ROGER FAIRLEY AND

RICHARD GACKOWSKI.

Plaintiffs-Appellant

DENNIS ANDREWS, et al

Defendants-Appelle

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Divisio:

No. 083 C 5207—Amy J. St. Eve, Judg:

ARGUED MAY 6, 2009—DECIDED

AUGUST 20, 2009

Before EASTERBROOK, Chief Judge, and PO

WOOD, Circuit Judges

EASTERBROOK, Chief Judge. Roger Fairley and

Richard Gackowski worked as guards at the Co

County Jail in Chicago. After their peers threatencd t

kill them, they quit and sued the other guards,

complaint handlers, the sheriff, and the County. (In

saying that death threats were made, and throughout

the opinion, we present the evidence in the light most

favorable to plaintiffs. Defendants deny many of

plaintiffs’ principal contentions.)

Cuards at the Jail regularly beat prisoners without

justification. The harm plaintiffs complain of, however,

is not the injuries suffered by prisoners but how other

guard reacted when plaintiffs opposed the

maltreatment. For example, in April 2000 Gackowski

objected when Fred Coffey struck inmate Brown

Gackowski followed up with an internal complaint

Coffey and other guards responded by taunting

Gackowski, calling him a “snitch” who “had no heart

Four months later a fight broke out in Special!

Incarceration Unit 2, which holds the Jails most

dangerous inmates. After the prisoners had been

subdued and shackled, guards Evan Fermaint,

Noberto sETCASIO, and Edward Byrne beat them

airley told them to stop. Byrne snapped: “They want

to hurt my officers [K]ill ‘em. They deserve to die.”

byrne later told Gackowski (who had not seen the

altercation) that he had twisted and jumped on an

inmate's leg but couldn't get the bones to break. Byrne

told Fairle yY not to file an incident report Ber: 1S10 and

Fermaint tagged Fairley “inmate lover

Though the Department of Corrections General

Orders require guards to report any misconduct by

their peers, plaintiffs say that this does not reflect

reality; according to them, the Jail’s real rule is a ban

on reporting misconduct—-a “code of silence.” At the

training academy, instructors told cadet:

together and aon t ay any bad remark Abo

inybody ” This attitude pe rvaded the Jail

Tensions mounted when the inmates involved in

the incident in Special Incarceration Unit 2 filed suit

Fields v. Byrne, No. 00 1. 9339 (Cir. Ct. Cook County

filed Aug. 16, 2000). Fairley and Gackowski told other

guards that, if subpoenaed, they would tell the truth

about what they had seen and heard. Fields’s lawyer:

ent an investigator to Fairley’s home, but Fairley said

he hadn’t seen anything. Fairley informed hi:

uperiors about the visit. They obtained a court orde:

restricting Fields’s access to guards and told th

ruards not to talk to anyone about what happened

Plaintiffs’ willingness to testify in Fields infuriated

the other guards. Bercasio and Fermaint forcefully

‘dry humped” plaintiffs by grabbing them from behind

and simulating anal intercourse. Bercasio posted on

the Jail’s bulletin boards pornographic cartoon

featuring Gackowski. Supervisors repeatedly assigned

plaintiffs to Special Incarceration Unit 2 without

idequate supplies; other guards refused to let them

ut to use the restroom. Byrne denied Fairley's request

for paternity leave and refused to pay plaintiffs for

overtime they had worked. The taun inmate lover

ind “social worker’ flew treel)

(;ackow ski submitted if) internal iffall cf mplaint

bout the bullying in August 2002. two vears afte

Fields was filed. In December Fields served a

ubpoena on Farley Late that month inmati

Lipscomb attacked Fairley with a shank, cutting him

yn the wrist. Bercasio remarked You see that

rairlevy? You fuck with per ple that how you Pret

tabbed Piaintill do not illege Lnat fuard

furnished Lipscomb with the shank.) Internal

investigators dragged their heels. Ronald Prohaska

told Gackowski, “|I|f Fairley goes into court on this

SI-2 case and tells the truth, he will fuck everyone

involved We always knew he was a weak link and

when a weak link can fuck everyone in the chain, then

we have to bury the weak link. It’s nothing persona!

[t's just business Just like with your complaint

trying to fuck fellow officers.’

earing further attacks, plaintills used all accrued

leave time and then quit on February 4, 2003. Fairley

had given his deposition in Fields a few weeks earlier;

Gackowski was deposed in mid-February. Both

testified at trial. The jury returned a defense verdict

fairley and Gackowski seek relief under 42 U.S.C

$1983. They contend that defendants violated thei:

speech rights by assaulting and threatening them fo1

reporting abuse to Jail supervisors and for their

willingness to testify truthfully in Fields. They also

contend some of the defendants violated their rights by

preventing their complaints from moving up the chain

of command

Belore reaching the merits vv ¢ must addre

appellat lurisdiction. Shortiy belore trial was to

begin, the court granted a motion to exclude all

evidence of events that took place before Fairley and

Gackowski gave their depositions. 2007 U.S. Dist

LIMAIS 70539 (ND. | sept. 24, 2007) (denyiny

plaintiffs’ motio msideration). Plaintiffs call

their theory “retal ve ll consider later whether

thats a helpful wor ind the district judge believed

that retahatio! must follow protected pee

Because ellects cant precede their cause evervthins

5a

before the depositions must be irrelevant. (The district

judge had already dismissed the claim alleging

punishment for filing internal complaints.) Plaintiffs

contested this decision but acknowledged that, given

the ruling, they could not prove their case, since the

assaults and threats all occurred before the

depositions. The judge responded: “[IJf you are still

saying that you concede that you cannot prove

causation in your case based on the Court’s rulings,

then I will grant judgment for the defendants on that

issue, and you can take it all up to the Seventh

Circuit.”

Oddly, the court’s docket entry states that

plaintiffs’ response to defendants’ motion for summary

judgment “is converted to a motion by Plaintiff [to]

dismiss.” (A docket entry is an improper substitute for

a judgment. Fed. R. Civ. P. 58 requires a document

separate from the statement of reasons supporting the

relief granted in the judgment.) Defendants seize on

this language, arguing that it shows that the court

dismissed the case pursuant to Fed. R. Civ. P. 41(a)(1)

(voluntary dismissal by the plaintiff). And defendants

read cases such as Chavez v. Illinois State Police, 251

F.3d 612 (7th Cir. 2001), to bar appeals from actions

terminated under Rule 41{a)(1).

Defendants are mistaken. The only prerequisites to

appellate jurisdiction are a final judgment and a

timely notice of appeal. 28 U.S.C. §1291. Whether a

party consented to that judgment (and which

particular rule of civil procedure the district court

invoked) is irrelevant. McMillian v. Sheraton Chicago

Hotel & Towers, 567 F.3d 839 (7th Cir. 2009); Downey

v. State Farm Fire & Casualty Co., 266 F.3d 675 (7th

6a

Cir. 2001). The judgment here is final and the notice

timely, so we have jurisdiction.

That said, if plaintiffs consented to the entry of

judgment against them, we must affirm. Litigants

aren’t aggrieved when the judge does what they want.

Nashville, Chattanooga & St. Louis Ry. v. United

States, 113 U.S. 261 (1885). Piaintiffs contend that

they accepted dismissal as inevitable only after the

district court gutted their case. This matches the

district judge’s description. Cf. Katz v. Gerardi, 552

F.3d 558, 563 (7th Cir. 2009). Acknowledging that a

case 1s hopeless, given a prior ruling (which the party

believes to be unsound), is a far cry from abandoning

the suit. McMillian and Downey hold that a party who

asks for a final judgment in order to appeal an

antecedent ruling is entitled to contest the merits of

that issue on appeal. Chavez illustrates this principle.

After the district court dismissed some of plaintiffs’

claims, they requested the entry of judgment against

them. We reviewed claims rejected by the court but

refused to consider claims that were still live when

plaintiffs asked for judgment. The rule is simple: if

plaintiff loses on A and abandons B in order to make

the judgment final and thus obtain immediate review,

the court will consider A, but B is lost forever. See also

Pollution Control Industries of America, Inc. v. Van

Gundy, 979 F.2d 1271 (7th Cir. 1992).

On to the merits. Fairley and Gackowski present

two theories of recovery under the first amendment:

first, that defendants punished them for defying the

code of silence by reporting fellow guards’ misconduct;

second, that defendants bullied them to keep them

from testifying in Fields.

Va

Garcetti v. Ceballos, 547 U.S. 410 (2006), holds that

the first amendment does not protect statements made

as part of one’s job. Ceballos, a deputy district

attorney, discovered what he believed were material

misrepresentations in an affidavit that had been used

to support a search warrant. He wrote a memo to his

superior suggesting that the case be dismissed. When

the supervisor disagreed, Ceballos pressed his view.

The supervisor responded by transferring Ceballos to

another office and refusing to promote him; Ceballos

sued. The ninth circuit concluded that the first

amendment applies to speech that is part of a worker’s

responsibilities. Ceballos v. Garcetti, 361 F.3d 1168,

1174~—75 (9th Cir. 2004). The Justices reversed, holding

that the first amendment does not regulate the way in

which a public employee’s job is performed. The

Constitution does not restrict a public employer’s

ability to manage the workplace, whether the

bureaucracy’s tasks entail speech or action.

The Jail’s General Orders thus pose a problem for

plaintiffs’ first theory. Since the General Orders

require guards to report misconduct by their

colleagues, the guards’ reports are not part of the

freedom of speech— and how the sheriff responds is a

question for statutes, regulations, and _ wise

management rather than the Constitution. Ceballos

reported that his co-workers had likely broken the law;

his superior thought that the memo displayed bad

judgment and acted accordingly. See also Vose uv.

Kliment, 506 F.3d 565 (7th Cir. 2007). So here,

plaintiffs reported what they deemed illegal conduct by

co-workers, and that speech is not protected.

Plaintiffs try to avoid Garcett: by arguing that the

Jail’s actual rule is the opposite of what’s in the

Sa

manual: a guard must not report a co-worker’s

misconduct. Since they did not have an official duty to

complain, Garcetti is inapplicable, plaintiffs maintain.

(Another reason they advance this “code of silence”

theory is to establish that the Jail has an official policy

of punishing guards who speak out. See Monell v. New

York Department of Social Services, 436 U.S. 658

(1978). In response, the sheriff has agreed to accept

liability if any of the guards is found liable; this does

not affect analysis under Garcetti.)

Alaska v. EEOC, 564 F.3d 1062 (9th Cir. 2009) (en

banc), supports plaintiffs’ position. Lydia Jones, an

aide to the Governor of Alaska, asserted that she had

been sexually harassed at work. A second aide,

Margaret Ward, corroborated the accusations in a

workplace interview and press conference. The

governor fired both of them. The ninth circuit held that

Garcetti does not apply unless the employer has

officially assigned to the employee a task of making

particular speech, requiring the worker to act precisely

as she did. Because Ward had not been commanded to

file internal complaints or issue press releases, her

suit could go forward. Jd. at 1070-71 & n.7.

Yet Garcetti is not limited to tasks officially

assigned to an employec. Ceballos himself did not have

a duty to make the report, or include the accusations,

that got him into trouble; communicating with his

superiors was simply within the general ambit of his

job. The Justices have distinguished between public

and private speech by asking about the employer's real

rules and expectations, not just official requirements

contained in a manual or formal directive. Garcettz,

547 U.S. at 424-25. See also Alaska, 564 F.3d at

1074-76 (O’Scannlain, J., dissenting). See also Riley v.

Qa

Blagojevich, 425 F.3d 357 (7th Cir. 2005) (explaining

why written job descriptions are not conclusive for

identifying policy-making or discretionary jobs for

which politics are an appropriate consideration).

Garcetti applies to job requirements that limit, as

well as those that require, speech. Suppose the Jail put

a guard in charge of maintaining a bulletin board,

instructing him to post only materials that relate to

workplace safety. If the guard puts up something on a

different topic, or fails to put up anything, the

management may discipline the guard without

encountering an objection under the first amendment.

See Guardian Industries Corp. v. NLRB, 49 F.3d 317,

319-20 (7th Cir. 1995); cf. Mayer v. Monroe County

Community School Corp., 474 F.3d 477 (7th Cir. 2007)

(school may discipline teacher for conducting an

anti-war demonstration during class time).

And Gareetti can’t be limited to “good” workplace

requirements, as the ninth circuit supposed in Alaska.

Ceballos was fired for reporting conduct that he

believed was illegal. The Justices did not praise the

district attorney’s response; they held instead that

state law rather than the federal Constitution

determines whether a public work force is being well

managed. If an employer has instructed the workers to

keep their mouths shut during working hours on

questions related to performance of their (and

co-workers’) jobs, the first amendment does not

prevent the employer from enforcing that requirement.

Whistle-blower protection statutes or labor law might

provide a remedy (particularly if an employee is

punished for reporting illegal acts), but the

Constitution does not.

10a

The purported code of silence is a ban on filing

complaints about guard-on-inmate violence. Such a

policy might be foolish; it might expose the County to

other lawsuits; but it does not offend the first

amendment, because what one guard says about

another through the grievance system is part of the

job, and the employer can discipline a guard for poor

performance of work-related tasks. See Mayer, 474

F.3d at 479. Compare Garcetti with Rankin ov.

McPherson, 483 U.S. 378 (1987), and Givhan uv.

Western Line Consolidated School District, 489 U.S.

410 (1979). We disapprove Alaska v. EEOC to the

extent that decision rests on a belief that Garcetti

applies only to speech expressly commanded by an

employer. See also Winder v. Erste, 566 F.3d 209 (D.C.

Cir. 2009); Haynes v. Circleville, 474 F.3d 357 (6th Cir.

2007); Thomas v. Blanchard, 548 F.3d 1317 (10th Cir.

2008); Abdur-Rahman v. Walker, 567 F.3d 1278 (11th

Cir. 2009).

Bercasio, Fermaint, and the other guards are not

plaintiffs’ employer, however. Whether Garcetti

protects their actions is a novel question. To recover

under the first amendment, a plaintiff must prove,

among other things, both that his speech was

“protected” and that the government’s (more

accurately, a given state actor’s) justification for

curtailing the speech was inadequate. Garcetti appears

to address the first question, but its reasoning focuses

on the justification of a particular defendant: the

government employer. Thus it is conceivable that the

Court might hold the same speech “not protected”

vis-a-vis the employer, but “protected” vis-a-vis

co-workers.

lla

This case illustrates the importance of properly

characterizing Garcetti’s holding. If plaintiffs’ speech

is categorically not protected, any state actor can

punish plaintiffs in any way he wishes without

incurring liability under the first amendment. But if

the Justices instead dealt with the justification of a

particular state actor, the acts of one defendant (the

sheriff) might be justified, while the acts of others

(fellow guards) might not, for guards cannot assert the

same interest in maintaining smooth operations as the

Jail’s administrators. Imagine that Cook County’s

in-house counsel, furious about the snitching, beat up

Fairley after work. Why should the County’s need for

flexibility in running its Jail insulate the actions of all

state actors? Though we have treated Garcetti as

dealing with the question whether speech is protected,

see, e.g., Chaklos v. Stevens, 560 F.3d 705, 711-12 (7th

Cir. 2009); Renken v. Gregory, 541 F.3d 769, 773-75

(7th Cir. 2008), we have never considered how it

applies to a non-employer.

Unfortunately for Fairley and Gackowski, their

Monell argument---that the Jail has a policy forbidding

complaints about guards who abuse inmates—links

the guards’ fates to the sheriff's. If a code of silence is

the rule, then the guards were merely enforcing the

Jail’s policy. Although the guards’ conduct might have

been tortious or even criminal, see 720 ILCS 5/32-4

(witness tampering), plaintiffs do not want tort

damages. They have framed their case in a way that

can yield one of only two results: either everyone is

liable under the first amendment or no one is liable.

Since the first amendment does not support a claim

against the sheriff, all defendants win.

12a

lairley and Gackowski might have contended that

the General Orders, rather than an unwritten code of

silence, were the official rule. As this argument would

go, some guards set out to violate the Orders by

punishing anyone who informs on another guard. The

Jail’s employment policies would be out of the picture,

and we would have to decide whether Garcetti shields

non-employer state actors who try to subvert the

employer’s policies. But plaintiffs argue only the

inverse—that the Jail’s policy is silence, and that

guards enforce this through threats condoned, if not

commanded, by management—so this theory is off the

table. We reserve the question how Garcetti applies to

punishments meted out by non-employers. (We

emphasize that we express nu opinion on the legality

of defendants’ conduct. We merely reject the argument

that prohibiting guards from complaining to

supervisors violates the first amendment.)

Plaintiffs’ second theory is that they were bullied

and threatened in order to deter them from testifying

in Fields. This claim falls outside Garcetti. The Jail

likely requires guards to testify on its behalf and pays

them for time at court. Testifying against the Jail

might not be part of the job, but that doesn’t matter.

Even if offering (adverse) testimony is a job duty,

courts rather than employers are entitled to supervise

the process. A government cannot tell its employees

what to say in court, see 18 U.S.C. §1512, nor can it

prevent them from testifying against it.

Defendants’ only contention is that no one

“retaliated” against plaintiffs for testifying, because

the insults, assaults, and threats all preceded

plaintiffs’ depositions in Fields. This misapprehends

the nature of plaintiffs’ claim. The Constitution

L3a

prevents governmental actors from forbidding, or

penalizing, speech that is protected under the first

amendment. Penalties that follow speech are

forbidden. This includes, but certainly is not limited to,

reactions to what has already been said. E.g..

Milwaukee Deputy Sheriff's Association v. Clarke, No.

08-3298 (7th Cir. July 21, 2009); Crue v. Aiken, 370

F.3d 668 (7th Cir. 2004); Ridpath v. Marshall

University, 447 F.3d 292, 319-20 (4th Cir. 2006). (Of

course, the sanction or threat must be serious enough

to deter an ordinary person from speaking. Bart uv.

Telford, 677 F.2d 622 (7th Cir. 1982).) But threats of

penalties also are forbidden. That’s why it can be

misleading to speak of “retaliation” as the basis of a

suit. The word implies that threats don't matter, and

the district court here was misled.

Threatening penalties for future speech goes by the

name “prior restraint,” and a prior restraint is the

quintessential first-amendment violation. Nebraska

Press Association v. Stuart, 427 U.S. 539, 559 (1976)

(Gudicial gag order); Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546, 552-53 (1975) (executive

censorship). Indeed, for a time it appeared that prior

restraints were the only actions forbidden by the first

amendment. See Schenck v. United States, 249 U.S. 47

(1919). Later cases have held that penal ties for

completed speech also violate the Constitution, but

this development does not suggest that only post-

speech penalties now matter.

The word “retaliation” has the potential, realized

here, to divert attention from the rule that both

threats designed to deter future speech and penalties

for past speech are forbidden. “Retaliation” as a legal

theory comes from employment-discrimination suits

l4a

See, e.g., 31 U.S.C. §3730(h); 42 U.S.C. §12203. We

have borrowed the word in cases where an employer

punishes an employee on account of speech. E.g.,

Chaklos, 560 F.3d at 711. Using one word for two

kinds of claim has the potential to confuse. Cf. Krolnik

v. Prudential Insurance Co. of America, 570 F.3d 841]

(7th Cir. 2009). Because only a subset of viable

first-amendment claims involves retaliatory discharge,

it is generally best to avoid the word.

The first amendment protects speakers from

threats of punishment that are designed to discourage

future speech. Fairley and Gackowskican recover from

any defendants who made such threats—-though there

are two additional requirements.

One is proof of causation. Plaintiffs must show that

their potential testimony, not their internal

complaints, caused the assaults and threats. This

means but-for causation. See Gross v. FBL Financtal

Services, Inc., 129 S. Ct. 2343 (2009); Mt. Healthy

Board of Education v. Doyle, 429 U.S. 274 (1977).

Some decisions (Matrisciano v. Randle, 569 F.3d 723

(7th Cir. 2009), is the latest) say that a plaintiff just

needs to show that his speech was a motivating factor

in defendant’s decision. These decisions do not survive

Gross, which holds that, unless a statute (such as the

Civil Rights Act of 1991) provides otherwise,

demonstrating but-for causation is part of the

plaintiffs burden in all suits under federal law. The

record has evidence from which a reasonable jury

could find causation; no more is necessary at this

stage, but the instructions at trial must reflect the

holding of Gross

Lda

The second requirement is proof of damages. The

largest item will be lost income, if plaintiffs can

establish that the threats caused them to quit. Cf

Pennsylvania State Police v. Suders, 542 U.S. 129

(2004). Lesser threats, defamation, and battery (the

dry humping) also can lead to damages, if these are

the sort of harms that would cause a reasonable

person to keep quiet. Bart, 677 F.2d at 625. But

because Garcetti covers the intra-Jail complaints,

actions that occurred before the altercation in Special

Incarceration Unit 2, such as the taunting that

followed Gackowski’s defense of inmate Brown, are not

an appropriate source of damages.

One final observation. [Plaintiffs pleaded a

conspiracy claim under 42 U.S.C, §1985(3), but it’s

superfluous. The function of §1985(3) is to permit

recovery from a private actor who has conspired with

state actors. See Dennis v. Sparks, 449 U.S. 24 (1980);

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). All

defendants are state actors, so a §1985(3) claim does

not add anything except needless complexity. Plaintiffs

appear to think that the §1985(3) claim expands the

scope of admissible evidence. But Fed. R. Evid

801(d)(2)(E) (statement of coconspirator is not hearsay)

applies whether or not the defendants are formally

charged with a conspiracy. The rule making one

conspirator’s statements admissible against another

rests on a theory of agency, not on the allegations in

the complaint. If plaintiffs can show that the

defendants acted in concert, then Rule 801(d)(2)(E)

will apply. And the judge, not the jury, makes this

decision. See Fed. R. Evid. 104(a); United States

Martinez de Ortiz, 907 F.2d 629 (7th Cir. 1990) (en

banc)

iva

The judgment is affirmed to the extent that the

district court dismissed plaintiffs’ “code of silence’

claim and the conspiracy claim. To the extent that 1

dismissed the prior-restraint claim, the judgment 1:

reversed, and the case is remanded for further

proceedings consistent with this opinion

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Kverett McKinley Dirksen United States Courthou

| épr7eypetyD

NoomM 41BG 219 » Dearborn Stree I

Chicago, Illinois 60604

ISEALI

()ttice o! thi Cle rk

iPhone S12) 435-5850

VvWw.ca/.uscourts.

FINAL JUDGMEN'

FRANK H. FAS'TERBROOK. ¢

RICHARD A. POSNER, Circuit Jud

DIANE P. WOOD. Circuit Jud

ROGER FAIRLEY and RICHARD

GACKOWSKI..

Plaintiff Appella

DENNIS ANDREWS. et a

Defendant Appelle:

Originating Cause Information

| District Court No: 1:03-cv-05207

Northern District of Illinois, Eastern Divisio:

|

| District Judge Amy J. St. Eve

The judgment of the district court is AFFIRMED to

the extent that the district court dismissed plaintifl

“code of silence” claim and the conspiracy claim. T’o th

extent that it dismissed the prior-restraint claim, the

judgment is REVERSED, and the case |

REMANDED for further proceedings consistent with

the opinion. The above is in accordance with thi

decision of this court entered on this dat \ppcllant

hall recover their costs

lorm name: c7_FinalJudgment (form ID: 132

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS EASTERN DIVISION

No. 03 C 5207

[Filed September 26, 2007]

ROGER FAIRLEY and RICHARD

GACKOWSKI,

Plaintiffs,

SUPT. DENNIS ANDREWS, LT.

EDWARD BYRNE, SGT. PATRICK

LOIZON, OFC. EVAN FERMAINT

OFC. NOBERTO BERCASIO, OFC.

FRED COFFEY, OFC. RONALD

PROHASKA, FORMER CHIEF

INVESTIGATOR SAUL WEINSTEIN,

CHIEF INVESTIGATOR TIM

KAUFMANN, CHIEF INVESTIGATOR

JUAN DIAZ, in their individual and

official capacities, and SHERIFF

MICHAEL SHEAHAN, in his

official capacity,

Defendants.

20a

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Before the Court is Plaintiffs’ motion for

reconsideration of the Court’s September 11, 2007

ruling granting Defendants’ motion in limine #8. In

the alternative, Plaintiffs move to stay the trial

scheduled to commence on October 9, 2007 — and to

certify a question of law for interlocutory appeal

pursuant to 28 U.S.C. § 1292(b). The Court held a

hearing on Plaintiffs’ motion and the parties have

briefed the relevant issues. The Court presumes

familiarity with its prior orders and the Seventh

Circuit decision in Fairley v. Fermaint, 482 F.3d 897

(7th Cir. 2007). For the following reasons, the Court

denies Plaintiffs’ motion for reconsideration and for

certification for interlocutory appeal pursuant to

Section 1292(b).

I. Motion for Reconsideration

A. Legal Standard

Because the Court’s September 11, 2007, Minute

Order granting Defendants’ motion in limine #8 did

not dispose of this case in its entirety, the Court

reviews Plaintiffs’ motion for reconsideration pursuant

to Federal Rule of Civil Procedure 54(b). Under Rule

54(b), the Court may exercise its inherent authority to

reconsider its interlocutory orders because such orders

are “subject to revision at any time before the entry of

judgment adjudicating all the claims.” See

Fed.R.Civ.P. 54(b); see also Moses H. Cone Mem. Hosp.

v. Mercury Const. Corp., 460 U.S. 1, 12, 103 S.Ct. 927,

74 L.Fd.2d 765 (1983) (“every order short of a final

Z1a

decree is subject to reopening at the discretion of the

district judge”). Accordingly, under Rule 54(b), the

Court may correct any manifest errors of law or fact in

its September 11, 2007 minute order. See Zurich

Capital Mkt., Inc. v. Coglianese, 383 F. Supp. 2d 1041,

1045 (N.D. fl. 2005) (citation omitted).

B. Procedural Background

On July 25, 2003, Plaintiffs Roger Fairley and

Richard Gackowski, two former correctional officers

who worked at the Cook County Jail, brought the

present lawsuit alleging First Amendment retaliation

and conspiracy claims, among others, against the

Sheriff of Cook County and eight correctional officers,

supervisors, and Sheriff's Office employees.’

On May 4, 2006, the Court granted Defendants’

motion for summary judgment regarding Plaintiffs’

conspiracy claim, namely, that Defendants conspired

to deprive them of their constitutional right to free

speech. The Court, however, denied Defendants’

summary judgment motion concerning Plaintiffs’ First

Amendment retaliation claim and attendant Monell

claim.

On May 30, 2006, the Supreme Court decided

Garcetti v. Ceballos, U.S. , 126 S.Ct. 1951, 164

L.Ed.2d 689 (2006). The Garcettit Court held 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

' This case was reassigned to the Court on March 17, 2006

from employer discipline.” Jd. at 1960. On June 9,

2006, Defendants Dennis Andrews, Edward Byrne,

Ronald Prohaska, Tim Kaufmann, Saul Weinstein, and

Michael Sheahan filed a Joint Motion for Summary

Judgment based on Garcetti.

Meanwhile, on May 18, 2006, Defendants Evan

Fermaint, Noberto Bercasio, and Fred Coffey filed an

interlocutory appeal with the Seventh Circuit based on

the Court’s denial of summary judgment on their

qualified immunity defense. On December 20, 2006,

the Seventh Circuit issued its opinion dismissing the

appeal for want of jurisdiction. See Fairley v.

Fermaint, 471 F.3d 826, 829 (7th Cir. 2006). On

January 3, 2007, Fermaint, Bercasio, and Coffey filed

a Petition for Rehearing and Petition for Rehearing En

Banc to the Seventh Circuit.

On March 19, 2007, the Seventh Circuit granted

Defendants’ Petition for Rehearing. See Fairley v.

Fermaint, 482 F.3d 897 (7th Cir. 2007). In doing so,

the Seventh Circuit concluded that Defendants’ appeal

was timely, and thus reached the merits of

Defendants’ qualified immunity defense. The Seventh

Circuit then concluded that Defendants’ qualified

immunity defense relicd upon questions of fact to be

resolved at trial. 7d. at 902. In making its

determination, the Seventh Circuit stated:

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. 195]

(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.” Jd.

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 Garcett:, 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 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. 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

24a

did in fact, for that would impinge on the jury’s

task.

ld.

On April 16, 2007, the Court denied Defendants’

Second Motion for Summary Judgment based on

Garcettt and demied Defendants’ motion for

reconsideration on May 7, 2007. The Court concluded

that there were genuine issues of material fact for trial

whether: (1) Plaintiifs assisted in the Fields litigation

prior to their 2003 Fields depositions; and (2)

Defendants retaliated against Plaintiffs based on such

assistance. (R. 826-1, May 7, 2007, Minute Order at 2.)

C. The Effect of Garcetti

The Supreme Court’s opinion in Garcetti has had a

significant impact on Plaintiffs’ case. When Plaintiffs

filed this lawsuit, they premised their First

Amendment retaliation claims on speaking out while

at work against alleged physical abuse of inmates by

correctional officers at the CCDOC. Three years later,

Garcetti “significantly limitiled] First Amendment

protection of public employees’ speech.” Salas uv.

Wisconsin Dep't of Corrections, 493 F.3d 913, 925 (7th

Cir. 2007). In Garcetti, the Supreme Court held that

public employees who make statements pursuant to

their official duties “are not speaking as citizens for

First Amendment purposes, and the Constitution does

not insulate their communications from employer

discipline.” Garcetti, 126S.Ct. 1951, 1960. Because the

majority of Plaintiffs’ allegations pertained to speech

made as part of their official duties, such claims are no

longer viable under the First Amendment. ‘The only

speech in this case that remains protected after

25a

Garcetti pertains to speech and expressions regarding

Plaintiffs “[a]lssistance to prisoners and their lawyers

in litigation ....” Fairley v. Fermaint, 482 F.3d 897, 902

(7th Cir. 2007). Because Plaintiff Fairley’s first

deposition in the Fields Litigation took place shortly

before he resigned and his second deposition occurred

months after his resignation and because Plaintiff

Gackowski’s depositions in the Fields Litigation took

place after he resigned, Plaintiffs’ case is significantly

narrowed.

Given the limits Garcetti has imposed, Plaintiffs

now seek to expand their theory of the case to cover

claims that the Seventh Circuit does not recognize.

Plaintiffs’ counsel argues that this new theory is an

“outgrowth” of Garcetti. Specifically, Plaintiffs claim

that from July 2000 — the date of the Fields incident at

the CCDOC which subsequently resulted in the Fields

Litigation — any harassment of Plaintiffs by

Defendants was an effort to intimidate them and chill

any future speech that is covered under the First

Amendment, namely, any assistance to the plaintiffs

in the Fields Litigation, even though Plaintiffs had not

engaged in any protected speech at that time.

D. Minute Order of September 11, 2007

Defendants motion in limine #8 sought to preclude

the admission of a hand written memorandum written

by Plaintiff Fairley. In addressing the motion, the

Court stated:

Plaintiffs correctly note that “the conduct at

issue not only involves actions after Plaintiffs’

depositions in the Fields Litigation, but also any

adverse conduct related to Plaintiffs’ overal]

26a

assistance to the Fields Litigation.” Instead of

setting forth any such adverse conduct related

to the memorandum, Plaintiffs argue that

Defendants “attempted to silence plaintiff

Fairley (and plaintiff Gackowski) by

intimidating them, so they would not reveal

during the course of the Fields litigation what

they knew about incidents of excessive force,

specifically including the July 29, 2000 beating

in the SI-2 Unit.” According to Plaintiffs,

because the memorandum contains speech that

Defendant attempted to suppress through

“intimidating and harassing Fairley from as

early as 2000” is it relevant and admissible.

Plaintiffs go too far.

It isclear that the First Amendment protects

a public employee’s right to speak as a citizen

about matters of public concern under certain

circumstances. Garcetti v. Ceballos, _ TS.

,___, 126 8.Ct. 1951, 1957, 164 L.Ed.2d 689

(2006). As the Seventh Circuit recently noted,

Garcetti made it clear that public employces

have no cause of action for First Amendment

retaliation unless they were disciplined for

speaking as citizens about a matter of public

concern. 126 S.Ct. at 1958, 1960. When

public employees make statements pursuant

to their official duties, they are not speaking

as citizens and “the Constitution docs not

insulate their communications’ from

employer discipline.” Jd. at 1960. In other

words, if Spiegla’s statements to Schrader

were made pursuant to her official duties as

a correctional officer, it was not protected

Zila

speech and she has no claim for First

Amendment retaliation.

Spiegla v. [ull 481 F.3d 961, 963-64 (7th Cir. 2007).

The protection applies to speech, not to future speech

See Wernsing v. Thompson 423 F.3d 732, 752 (7th Cir.

2005) (“11 the retaliation context, speakers simply may

not invoke the protections of the First Amendment

based on unexpressed viewpoints or un-uttered

thoughts”); Remus v. Sheahan 2006 WL 418654, at *5

n.11(N.D. Ill. 2006) (citing Wernsing, 423 F.3d at 752-

53) (“Plaintiff also alleges that Ryan and Sheahan

were motivated by their expectation that plaintiff

would not lie about having requested a_ full

investigation. SAC {J 47, 53. Plaintiff, however, does

not allege that he actually spoke out about there being

a coverup. The retaliation claim cannot be based on

speech that never actually occurred”). Further, an

essential element of Plaintiffs’ Section 1983 retaliation

claim is that their speech was a substantial or

motivating factor in the retaliation. See Ashman uv.

Barrows, 438 F.3d 781, 784 (7th Cir. 2006). Plaintiffs

have not identified any case law — and the Court has

found none — to support their theory that the First

Amendment protects silence. While this memorandum

is the type of speech that could be protected under

Garcetti because it involves Plaintiff Fairley’s

assistance in ongoing litigation, Plaintiffs have not

argued the necessary link between it and Defendants.

Because Plaintiffs have failed to identify any evidence

that Defendants knew of this memorandum and that

it was a motivating factor in their alleged retaliated

against Plaintiffs, the memorandum is not admissible

The Court is granting the motion without prejudice. If

25a

Plaintiffs can establish this evidentiary link at trial,

they can ask the Court to revisit this issuc.

(R. 970-1, Sept. 11, 2007, Minute Order, at 3-4.)

E. Plaintiffs’ Arguments

In their motion for reconsideration, Plaintiffs argue

that the Court’s in limine ruling was a manifest error

of law because the Court concluded that Plaintiffs’

silence prior to Defendants’ alleged retaliatory conduct

was not protected speech. See Wernsing v. Thompson,

423 F.3d 732, 873 (7th Cir. 2005) (“In the retaliation

context, speakers simply may not invoke the

protections of the First Amendment based on

unexpressed viewpoints or un-uttered thoughts.”).

Plaintiffs’ reconsideration motion goes beyond the

Court’s ruling on Defendants’ in limine motion,

however, and to the heart of Plaintiffs’ theory of the

case — a theory that Plaintiffs admittedly have had to

modify since Garcetti. Plaintiffs now define their

theory of the case as such: “[T]he First Amendment

protects speech on matters of public concern which

defendants had reason to believe plaintiffs would utter

during their Fields testimony, and that the First

Amendment therefore prohibited defendants from

taking adverse actions against plaintiffs to prevent

them from engaging in that protected speech.” (RK.

1000-1, Pls.” Mot. Recons. Reply, at 5.) Although

Plaintiffs acknowledge that First Amendment

retaliation claims require that a public employee's

protected speech must precede a_ defendant's

retaliatory conduct, they contend that this First

Amendment claim is not a traditional retaliation

claim. Instead, Plaintiffs are attempting to bring a

derivative First Amendment retaliation claim based on

29a

the chilling of their protected speech without showing

that any protected speech preceded Defendants’

retaliatory harassment and intimidation

In support of this novel theory, Piaintiffs rely on

Fourth Circuit case law:

A chilling claim is essentially the derivative of

a retaliation claim: if a public employer cannot

fire, demote, or similarly punish a_ public

employee for engaging in protected speech, the

employer also cannot intimidate the employee

into silence by threatening impermi: sible

retribution

Ridpath v. Board of Governors Marshall Univ., 447

* 3d 292. 319 (4th Cir. 2006); see also Edwards v. City

of Goldsboro, 178 F.3d 231, 246 (4th Cir. 1999) (“a

public employer is prohibited from threatening to

discharge a public employee in an effort to chill that

employee’s rights under the First Amendment.”).’

Plaintiffs admit that “[a]lthough it is true that in both

these [Iourth Circuit] cases, the defendants knew or

anticipated that the plaintiffs would engage in future

protected speech because of previous related protected

speech which had been retaliated against by

defendants, nothing in the Court of Appeal’s rationale

suggests that a defendant's knowledge of a plaintiff's

* Plaintiffs have called their proposed derivative claim more than

one name. In their proposed jury instructions, Plaintiffs labeled

this claim a “First Amendment Intimidation Reyarding Fields

Case Testimony.” (R. 887-3, Pls.’ Proposed Jury Instruction #36.)

At the hearing on the present motion, Plaintiffs called their claim

an “anticipatory” claim based on “intimidation of future speech

(Hr'e Tr Sept 18, 2007.)

30a

prior protected speech is a prerequisite for a First

Amendment ‘chilling claim.” (R. 984-1, Pl.’s Mot

Recons.. at 3.)

To establish a First Amendment retaliation claim,

“a public employee must present evidence that: (1) his

speech was constitutionally protected, (2) he has

suffered a deprivation likely to deter free speech, and

(3) his speech was at least a motivating factor in the

employer's action.” Massey v. Johnson, 457 F.3d 711,

716 (7th Cir. 2006) (citing Sptegla v. Hull, 371 F.3d

928, 935, 940-41 (7th Cir. 2004)). Meanwhile, although

the Seventh Circuit has not recognized a separate,

discrete claim for intimidation or chilling under the

First Amendment, it recognizes that “harassment just

as much as a furmal discharge, may be actionable if it

is designed to deter a public employee's free speech’

and that “|glovernment retaliation tends to chill an

individual’s exercise of his First Amendment rights.”

he Court notes that last year a Colorado federal! district court

rejected a plaintiff's First Amendment “chilling” claim

'o the extent the Amended Complaint could be read to

allege separate claims for retaliation and chilling, I not

that the parties focus on retaliation in their written

arguments on the motion to dismiss. Further, | observe

that Spagnuolo has not pointed to any Tenth Circuit o1

Supreme Court law clearly establishing a chilling claim

separate and apart from a public employee retaliation

claim. Cf. Ridpath v. Bd. of Governors Marshail

University, 447 F.3d 292, 319 (4th Cir. 2006) (“A chilling

claim is essentially the derivative of a retaliation claim: if

a public employer cannot fire, demote, or similarly punish

a public employee for engaging in protected speech, thi

employer alsocannot intimidate the employee into silence

by threatening impermissible retribution”

dla

Massey, 457 F.3d at 720; see also Pickering v. Board of

Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d

811 (1968) (“threat of dismissal from _ public

employment” is “a potent means of inhibiting speech”)

Nevertheless, the Seventh Cuircuit has never

recognized a First Amendment public employee clairn

whether you call it retaliation or not — in which the

plaintiffs protected speech need not precede a

defendant's actionable conduct

Although Plaintiffs argue that whether theu

protected speech comes before or after Defendants’

retaliatory conduct is irrelevant, they rely on cases

where the protected speech occurred before the

defendant's actionable conduct in support of their

theory.’ Plaintiffs, for exampie, rely on Bart v. Telford

677 F.2d 622, 625 (7th Cir. 1982). in which the

protected speech involved a_ public employee's

allegation that she was reprimanded for endorsing a

candidate for public office. More specifically,

subsequent to the plaintiff's endorsement of a political

candidate, the defendants allegedly pursued a

campaign of petty harassments. /d. In analyzing the

plaintiff's First Amendment claim, the Seventh Circuit

stated

x - ; LAT

7 , ”

7

2594484, at »>n.10(D. Colo rept 11], 200

‘In the two unpublished Northern District of Illinois cases upon

vhich Plaintiffs rely, the defendant reacted to plaintiff!

protected speech that occurred first. See Munoz v. Chicago Sch

Reform, 99 C 4723, 2000 WL 152138 (N.D. Ill. Feb. 4, 2000

Klipfel v. ATF, No. 94 C 6415, 1996 WI. 566452 (N_D. Ill. Sept

}QUsn

It is true that a certain air of the ridiculou

hangs over the harassment allegations, in

particular the allegation that we quoted earlier

regarding the birthday cake. But we cannot sa\

1s a matter of law that the exercise of First

Amendment rights by public employees cannot

be deterred by subjecting employees who

exercise them to harassment and ridicul

through selective enforcement ot work rule

he effect on freedom of speech may be small

but since there is no justification for harassing

people for exercising their constitutional right

it need not be great in order to be actionable

Yet even in the field of constitutional torts d

ninimis non curat lex. Section 1983 1s a tort

tatute. A tort to be actionable requires injury

[t would trivialize the First Amendment to hold

that harassment for exercising the right of fre

peech was always actionable no matter how

unlikely to deter a person of ordinary firmins

trom that exercis that if the Mayor of

Springheld had frowned at Miss bart for

running for public office he would be lable for

lamages (unprovable, of course) under sectio!

1983. However, more is alleged here — an entiré

impaign ol harassment which though trivial tu

letail may have been substantial in gross. It

1 question of fact whether the campaig!

iched the threshold of actionabilitv unde:

tion LYS

Toe eat | rie do Tal pute if iT 1 { LETip det A |

ira ment ictionable under the First Amendment

Bart inst Ci and Vlaintifts certainly allegs

than petty or trivial harassing and intimidating

conduct on the part of Defendants. See Spiegla, 371

F.3d at 941 (“a § 1983 case does not require an adverse

employment action within the meaning of the

antidiscrimination statutes, such as Title VII of the

Civil Rights Act of 1964. Rather, “/aJ/ny deprivation

that is likely to deter the exercise of free speech ... is

actionable.”) (emphasis in original) (citations omitted).

Nevertheless — as in the Fourth Circuit cases — the

Bart plaintiffs protected speech occurred first after

which the defendants reacted. See id.; see also

Andrekus v. Board of Educ. Dist. U-46, 02 C 3960,

2004 WL 2535274, at *7 (N.D. Ill. Sept. 28, 2004) (“To

establish First Amendment retaliation, a_ plaintiff

must show that she engaged in constitutionally

protected speech and that that speech was a

substantial or motivating factor in the defendant’s

retaliatory action. By definition, the defendant’s

retaliatory actions must be in response to, t.e., follow,

’

the plaintiff's exercise of her constitutional rights.”)

Plaintiffs also attempt to distinguish Wernsing v.

Thompson, 423 F.3d 732 (7th Cir. 2005), which the

Court relied upon in its 1n limine ruling. See id. at 752

(“plaintiffs are actually referring to speech which has

not yet occurred, which, for First Amendment

retaliation purposes, is no speech at all.”). In

Wernsing, employees at the Illinois Office of the

Inspector General (“OIG”) in the Department of

Human Services (“DHS”) sent two e-mails in

November 2000 to the Inspector General, Odell

Thompson, stating that they had concerns about the

appointment of the OIG’s Southern Bureau Chief and

wanted to meet with Thompson. Jd. at 737-38.

Thompson did not respond to the plaintiffs’ e-mails. Jd.

at 738. In December 2000, however, Thompson sent a

34a

letter to the e-mail signatories that the OIG staff was

not authorized to communicate about the office’s

polices or operations directly to the DHS Secretary, to

the press, or to any external agent except with the

Inspector General’s approval and consent. fd. at 738

This directive was repeated in a second communication

that Thompson sent to all OIG employees. Jd. In

January 2001, one of the plaintiffs called Thompson

about the directives after which he yelled at her and

told her she was “walking down the road to getting

fired.” /d. at 739. Thereafter, the Inspector Genera!

attended a meeting of the Southern Bureau staff

where he met with the e-mail signatories and asked

them about their concerns. /d. at 739. They explained

their concerns about the appointment of an individual

for the Southern Bureau Chief. Jd.

The Wernsing plaintiffs alleged that on the heels of

the e-mails and correspondence with ‘Thompson, he

committed several acts of retaliation for their inquiries

and requests for a meeting. Jd. In addition, the

plaintiffs alleged a claim of unlawful prior restraint on

speech based on Thompson’s directive prohibiting

unapproved discussions of OIG business. /d. at 740

The district court granted the plaintiffs’ summary

judgment motion on their prior restraint claim. Id. at

741. Furthermore, the district court denied the

Inspector General’s motion for summary judgment on

the plaintiffs’ retaliation claim concluding that the

plaintiffs’ e-mails to the Inspector General were

constitutionally protected speech and there were

material questions of fact remaining for trial whether

the plaintiffs’ protected speech was a motivating factor

in the retaliatory conduct. /d. The district court also

denied the Inspector General’s qualified immunity

claim concluding that it was clearly established that

35a

Thompson’s alleged actions restricting and retaliating

against the plaintiffs’ speech on matters of public

concern violated the plaintiffs’ constitutional rights.

Id. Tnereafter, the Inspector General appealed the

qualified immunity ruling. Jd.

On appeal, the Seventh Circuit held that the

Inspector General was entitled to qualified immunity

on the plaintiffs’ prior restraint claim because “it was

not clearly established, at the time the pre-clearance

directive was first issued (December 5, 2000), that

such a directive constituted an unlawful prior restraint

on speech.” Jd. at 747. The Wernsing court reasoned

that

while the constitutional limits of restraints

applicable to the general public are well-settled,

and while the Supreme Court has struck down

formal statutory bans of certain speech activity

by government employees, the prerogatives of a

government supervisor in managing the

communications of his own staff are far less

clear. We emphasize that our analysis of

qualified immunity here is focused specifically

and exclusively on this kind of relatively

informal supervisory directive aimed at close

subordinates

ld. at 748 Gnterna!l citation omitted)

The Wernsing court then turned to the Inspector

General’s qualified immunity defense concerning the

plaintiffs’ First Amendment retaliation claim and

addressed whether the plaintiffs had established a

deprivation of a constitutional right. The court

analyzed the plaintiffs’ claims under the Connick

36a

Pickering test, concluding that the plaintiffs had failed

to demonstrate that they engaged in speech on a

matter of public concern. Jd. at 751. Specifically, the

Seventh Circuit concluded that because the plaintiffs’

November 2000 e-mails did not articulate a particular

viewpoint, grievance, or complaint — but instead just

requested a meeting with the Inspector General — the

e-mails did not constitute speech on a matter of public

concern. Id. at 752. The Wernsing court further

rejected the plaintiffs’ argument that the court should

consider the content of what the plaintiffs desired to

communicate to the Inspector General, and that the

court should focus its inquiry on the underlying speech

that plaintiffs sought to bring to the Inspector

General’s attention, namely, their specific concerns

involving the appointment of the Southern Bureau

Chief. Jd. The Wernsing panel reasoned

This line of argument 1s nonsensical. In their

references to “underlying speech” that

“sought” to be expressed, plaintiffs are actually

referring to speech which has not yet occurr

which, for First Amendment retaliatio

purposes, is no speech at all. This Court

precedents instruct that the content of

speech is the most important fact

determining the public concern element

inchoate intentions or views that. t

privately holds

In the retaliation context, speak

not invoke the protection r ti

Amendment based on unexprs

or un-uttered thoughts. Gover

are not mind readers. The fact that n

the OIG wanted to meet with t! |

ofa

General about the rumored appointment of an

unspecified person does not, by itself, constitute

a matter of concern to the public.

Id. at 752-53 (internal citations omitted) (emphasis in

original). The Seventh Circuit further noted that

“otherwise unprotected speech does not suddenly

attain protected status simply because it is animated

by a viewpoint which, if actually expressed, might

itself merit First Amendmc«t protection.” Jd. at 752.

Although the content of Plaintiffs’ speech is not at

issue here, the Wernsing decision is instructive to this

Court’s analysis of Plaintiffs’ argument that their

inexpressed speech prior to Defendants’ intimidating

or retaliatory conduct constitutes a violation of the

First Amendment. Simply put, this Court cannot

ignore the Seventh Circuit’s conclusion that for First

Amendment retaliation purposes “speech which has

not yet occurred ... iS no speech at all.” ld. at 152: See,

g., Gross v. Town of Cicero, No. 03 C 9465, 2006 WL

288262, at *10 n.3 (N.D. Ill. Feb. 1, 2006) (simply

being named as a potential witness in the Moreno case

ild not constitute protected speech. See Wernsing,

123 F.3d at 752 (speech that has not occurred, ‘for

First Amendment retaliation purposes, is no speech at

' Furthermore, Plaintiffs have not given this

iny compelling reason to ignore this precedent

untiffis alsocontend that Wernsing supports their

ve intimidation/chilling claim because “the

enth Circuit recognized that a § 1983 action would

public employee’s future protected speech is

by governmental supervisors, characterizing

1 claim as a ‘prior restraint claim.” (R. 984-1,

Mot. Recon it 5.) At the hearing on this motion,

38a

Plaintiffs’ argued that Wernsing considered a “prior

restraint harassment claim.” (Hr’g. Tr. Sept. 18. 2007).

Plaintiffs’ argument is misplaced for several

reasons, especially because the language they rely

upon concerns the Inspector General’s argument on

appeal “that plaintiffs lack standing to challenge his

pre-clearance directive since they have not

demonstrated any ‘actual injury or any imminent

threat of injury due to the directive.” Jad. at 743. More

specifically, on appeal the Inspector General claimed

that “in order to make out a concrete ‘injury in fact’ for

standing purposes, plaintiffs must have _ sought

permission te speak, been denied, spoken out anyway

and been subject to discipline.” Jd. The Seventh Circuit

rejected the Inspector General’s argument “the

hypothetical chain of events outlined by Thompson

describes a First Amendment retaliation case

involving post-hoc punishment for disfavored speech,

not a prior restraint which seeks to limit expressive

activity before it occurs.” Id

lirst and foremost, the Wernsing decision did not

characterize an action pertaining to a public

employee's future protected speech as a “prior

restraint harassment claim.” Instead, the Seventh

Circuit was analyzing the Wernsing plaintiffs’ prior

restraint speech claim based on the _ Inspector

General’s internal e-mails. As the court explained

We note at the outset that the plaintiffs, in

challenging an internal e-mail as a “prior

restraint” on speech, advance a somewhat

unconventional claim Prior restraints

frequently arise in the form of judicial

injunctions against certain types of speech (to

39a

which the collateral-bar rule applies), or,

perhaps less commonly, in the form of forma!

qy

>

statutes or regulations barring or constrainin

certain expressive activity. But see Crue

Aitken, 370 F.3d 668, 679-80 (7th Cir. 2004)

(characterizing a university president’s internal

pre-clearance directive, disseminated via e-mail,

as a prior restraint on speech). Here, since both

sides have used the phrase “prior restraint” in

marshaling their arguments, we will also use

that term. However, we offer no view as to

whether, as a general proposition, an e-mail

directive should always be analyzed in the same

way aS an Injunction, statute or a forma!

regulation

i 4 ) ‘

Id. at fd ton )

In addition, the Wernsing court’s reference to the

Inspector General's “hypothetical chain of events”

describing “a First Amendment retaliation case

involving post-hoc punishment for disfavored speech,

not a prior restraint which seeks to limit expressive

activity before it occurs” is dicta because this

reasoning was not essential to the Wernsing court's

decision. See Tate v. Showboat Marina Casino P’ship,

431 F.3d 580, 582 (7th Cir. 2005). As such, Plaintifts’

attempt to use this language to establish an

intimidation/anticipatory claim is without merit.

Finally, the language in Fairley v. Fermatint, 482

F.3d 897 (7th Cir. 2007), supports the Court’s

conclusion that there is no legal basis for a

intimidation/chilling claim where protected speech

need not precede a defendant’s actionable conduct. As

the Seventh Circuit explained

Oa

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

apples) but also to testimony that plaintiffs

gave in inmates’ suits. Assistance to prisoners

and their lawyers in Jitigation is not part of a

guard's official dutics. 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 litigatior

as opposed to events ;: { work

Id. at 902 (emphasis added). In short, the Seventh

Circuit instructs that the relevant issue here is how

Defendants reacted to Plaintiffs’ protected speech — not

how Defendants acted before Plaintiffs’ protected

pr ech

Based on Wernsing, established First Amendment

retaliation precedent, and the lack of authority

supporting Plaintiffs’ derivative intimidation claim,

the Court denies Plaintiffs motion for reconsideration

because the Court did not commit a manifest error of

law in its in limine ruling. See Oto v. Metropolitan Lif

Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (manifest

error of law is wholesale disregard, misapplication, o1

failure to recognize controlling precedent)

If. Motion to Stay & Certify Appeal

In the alternative, Plaintiffs request that the Court

stay the trial scheduled to begin on October 9, 2007,

and certify for appeal the question of “whether Section

1983 permits a cause of action tor harassment and

intimidation in anticipation of and to discourage future

speech protected by the First Amendment.” (R.984-1,

Pls.” Mot. Recons., at 9.)

Section 1292(b) provides that an interlocutory

appeal may be taken if the underlying order “involves

i controlling question of law as to which there is

substantial ground for difference of opinion” and if “an

immediate appeal from the oider may materially

advance the ultimate termination of the litigation.” 28

U.S.C. § 1292(b). “Certification by the district court |

a jurisdictional prerequisite to interlocutory review

under § 1292(b).” In re Ford Motor Ceo..

Bridgestone / Firestone North American Tire, LLC, 344

3d 648, 653 (7th Cir. 2003) (“both the district court

and the court of appeals must agree that the case is a

proper candidate for immediate review before the

normal rule requiring a final judgment will be

overridden.’). “Interlocutory appeal is appropriate

when (1) the appeal presents a question of law; (2) it i:

controlling; (3) it is contestable; (4) its resolution will

expedite the resolution of the litigation, and (5) the

petition to appeal is filed in the district court within a

reasonable amount of time after entry of the order

sought to be appealed.” Boim v. Quranic Literacy Inst

& Holy Land Found. For Relief, 291 F.3d 1000, 1007

(7th Cir. 2002) (citing Ahrenholz v. Board of Trs. of

Univ. of Ill., 219 F.3d 674, 675-76 (7th Cir. 2000))

“Unless all these criteria are satisfied, the district

court may not and should not certify its order to us for

an immediate appeal under section 1292(b).”

Ahrenholz, 219 F.3d at 676 (emphasis in original)

Here, there is no dispute that Plaintiffs’ question

that they seck to certify is a controlling question of

law. See Ahrenholz, 219 F.3d at 676 (question of law

42a

“has reference to a question of the meaning of a

statutory or constitutional provision, regulation, or

common law doctrine”). In fact, Defendants offer their

own questions for certification.” Defendants, however,

contend that the Wernsing decision already resolved

the relevant legal issue in this matter, thereby casting

doubt on whether this legal issue is contestable as

required under Section 1292(b).

A question of law is contestable if there are

substantial conflicting decisions regarding the claimed

controlling issue of law, or the question is not settled

by controlling authority and there is a substantial

likelihood that the district court ruling will be reversed

on appeal.” Calvin v. Sheriff of Will County, No. 03 C

3086, 2006 WL 1005141, at *4(N.D. lil. Apr. 14, 2006);

see also Mannix v. Machnik, No. 05 C 7232, 2006 WL,

566447, at *3 (N_D. Ill. March 3, 2006) (“contested

question of law,” is defined as one creating 4

“substantial ground for difference of opinion.”) (citing

28 U.S.C. §& 1292(b)). As discussed in detail above,

Plaintiffs have failed to present any case law

controlling or otherwise — that a public employee’s

protected speech under the First Amendment need not

Because Defendants have not filed a separate motion under

Section 1292(b), the Court need not consider their questions for

interlocutory appeal, especially in light of their bare-boned

arguments in support of these questions. Kochert v. Adagen

Medical Intl Inc,. 491 F.3d 674, 679 (7th Cir. 2007) (“undeveloped

arguments are waived”). Moreover, Defendants’ second query

involves a question of fact, and thus is not appropriate for

interlocutory appeal under Section 1292(b). See Ahrenholz, 219

F.3d at 677 (appropriate question for interlocutory appeal is

“something the court of appeals could decide quickly and cleanly

without having to study the record”

43a

precede Defendants’ intimidating and _ retaliatory

conduct, regardless of how the cause of action is

labeled. Thus, there are no conflicting decisions

regarding the controlling issue of law. Plaintiffs’

reliance on the Fourth Circuit cases for a derivative

retaliation claim alone does not make their

question contestable, especially because controlling

authority, Wernsing v. Thompson, 423 F.3d 732 (7th

Cir. 2005), holds that for First Amendment retaliation

purpose 5, Speer h which has yel to occur 1S no speech at

all. Jd. at 752. In other words, Plaintiffs have not

established that there is a “substantial ground for

difference of opinion” COoncerninye the existence of a

First Amendment chilling/intimidation claim that does

not require a plaintiff's protected speech to precede a

defendant’s actionable conduct. Finally, under the

circumstances, the Court cannot conclude that its

decision likely will be reversed on appeal

Because Plaintiffs have failed to satisfy the

statutory requirement that the controlling legal issue

is contestable, the Court need not address the othe:

criteria under Section 1292(b). See Ahrenholz, 219 F.3d

at676 Accordingly the Court denies Plaintiffs’ motion

to certify a legal question for interlocutory appeal

I1l. Defendants’ Motion for Reconsideration

In the alternative, Defendants request that the

Court reconsider its April 16, 2007 order denying

Defendants’ Second Motion for Summary Judgment

and its reconsideration order of May 7, 2007, based on

Plaintiffs’ concession that they did not enyaye in

protected speech prior to the alleged acts of retaliation

Defendants, howc ver, do not point to any transcript o1

part of the record where Plaintiffs allegedly made this

concession. Without more, the Court declines to revisi

its earlier rulings as Defendants request

CONCLUSION

For these reasons. the Court denies Plaintitts

Motion for Reconsideration and Motion o Otay and

Certify a Question of Law for Interlocutory Appeal!

Dated: September 24, 2007

ENTERED

/s/ Amy J. St. Eve

AMY J. ST. EVE

United States District Judge

APPENDIX (¢

United States District Court, Northern

District of Illinois

Name of | Amy... St Sitting |

Assigned | Eve Judge if

Judge or Other

Vagistrate than

Judge Assigned

| Judge

CASE 03 C 520% DATE | 9/26/2007]

NUMBER |

CASE Fairley vs. Andrew

TITLE |

DOCKET ENTRY TEXT

ln Court Hearing Held on 9/26/2007. Pursuant to

RESPONSE [1011] by Plaintiffs Roger Fairley

Richard Gackowski to Defendants’ Motion for

Reconsideration of Denial of Defendants’ Motion for

Summary Judgment, is converted to a motion by

Plaintiff do dismiss. Plaintiffs’ motion is granted and

judgment is entered in favor of Defendants. All

pending motions [889] [938] [940] are denied as moot

Pretrial Conference set for 9/28/2007 is stricken. Jury

Prial et tor 1LO/9/2007 1s tricken. Civil ist

’

erminated

Mail AO 450 form

STATEMEN'!

Plaintiffs have filed a “response to Defendant

motion for reconsideration of denial of Defendant

motion tor ummary judgment which i noted in open

court, is actually a motion to dismiss based on

Piaintiffs' concession that they no longer can pro‘

their case. In court, Plaintiffs’ counsel conceded

And the problem that those ire not the

ictivities of which we have vidence that the

defendants were aware. And, therefore, whether:

they were protected speech or no protected speech,

there is a a causation problem that we cannot

overcome. That's the reason why we come betore

you seeking this rehel

This concession Is based on the Court's construction of

Carcettt v. Ceballos US .126 S.Ct. 1951, 164

L.Ed.2d 689 (2006), and the Court’s refusal to

recognize a cause of action based on an intimidation

theory as set forth in the Court's Septembe: 24, ZU00;

Memorandum Opinion. (K LOO5-] Ix LO12-1]

orrected ve LOTL))

As stated in their filing, Plaintiffs contend that

they are “left with no proper alternative than t

concede that, in light and because of this Court

rulings, Defendants’ Joint Motion for Summary

Judgment based on Garcetti should be granted as to all

Defendant R. 1OL1L-1, PI Res} it 10.) Based o1

4a

Plaintiffs’ admission, the Court grants hereby grants

Plaintiffs’ motion and enters judgment for Defendants.

03C5207 Fairley vs. Andrews

APPENDIX D

AO 450(Rev. 5/85) Judgment in a Civil Case

United States District Court

Northern District of Illinois

Eastern Division

Case Number: 08 C 5207

[Filed September 26, 2007}

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury rendered its verdict.

Decision by Court. This action came to hearing

before the Court. The issues have been heard and

a decision has been rendered

IT IS HEREBY ORDERED AND ADJUDGED that In

Court Hearing Held on 9/26/2007. Pursuant to

RESPONSE [1011] by Plaintiffs Roger Fairley,

Richard Gackowski to Defendants’ Motion fer

49a

Reconsideration of Denial of Defendants’ Motion for

Summary Judgment, is converted to a motion by

Plaintiff do dismiss. Plaintiffs’ motion is granted and

judgment is entered in favor of Defendants. All

pending motions [889] [938] [940] are denied as moot.

Pretrial Conference set for $/28/2007 is stricken. Jury

Trial set for 10/9/2007 is stricken. Civil case

terminated.

Date: 9/26/2007

Michael W. Dobbins, Clerk of Court

/s/ Theresa Hammonds, Deputy Clerk

50a

APPENDIX E

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 21, 2009

RICHARD A. POSNER, Circuit Judg:

DIANE P. Woon. Circuit Judge

ROGER FAIRLEY and

RICHARD GACKOWSKI.

Plaintiffs-Appellani

DENNIS AND]

Defendant: AAp pe

Appeal from the U! States District Court

Northern District of Illinois, Eastern Divi:

No. 0: 5207

Amy J. St. Eve, J

FRANK H. EASTERBROOK, Chief Judg

t

>]

OT)

5la

Order

Defendants-appellees filed a petition for rehearing

and rehearing en banc on September 3, 2009. No judge

in regular active service has requested a vote on the

petition for rehearing en banc, and all of the judges on

the panel have voted to deny rehearing. The petition

for rehearing is therefore DENIED.

Judge Flaum and Judge Rovner did not participate in the

f ‘ | {

consideration of this petition