452 (1986). However, plaintiffs have cited no evidence that Sheriff Elrod in fact delegated to Chief Nolan full discretion to make low-level transfers like those at issue here. On the contrary, the only evidence presented by plaintiffs on this issue is that Chief Nolan notified Sheriff Elrod and Sheriff-Elect O'Grady after the transfers had been approved, yet Sheriff Elrod took no action to rescind those transfers. (Pl. Mem. at 5, citing Nolan Dep. at 12, 28-42.)
However, "the mere failure to investigate the basis of a subordinate's discretionary decisions does not amount to a delegation of policymaking authority . . . ." Praprotnik, 108 S. Ct. at 927. Indeed, a county is not liable merely because the official who inflicted the alleged constitutional injury had the final authority to act on its behalf; rather, the official in question must possess "final authority to establish municipal policy with respect to the [challenged] action." Pembaur, 475 U.S. at 481, 106 S. Ct. at 1299. Because plaintiffs have raised no genuine issue of material fact as to whether Sheriff Elrod delegated to Chief Nolan final authority to establish policy with respect to the transfers in question, plaintiffs' delegation theory fails.
Plaintiffs' theory of ratification is similarly unavailing. Plaintiffs argue that Sheriff Elrod must have ratified the transfers in question because he could have, but did not, rescind them. (Pl. Mem. at 6.) But, as with plaintiffs' delegation theory, mere failure to stop transfers is insufficient participation in constitutional wrongdoing for Section 1983 liability to lie. Cygnar, 865 F.2d at 847. This court rejects plaintiffs' argument that Sheriff Elrod's after-the-fact knowledge of plaintiffs' transfers alone is sufficient to raise a genuine issue of material fact as to ratification. Such a result would eviscerate the court's holding in Cygnar.
On the contrary, ratification requires that the authorized policymakers "approve a subordinate's decision and the basis for it." Praprotnik, 108 S. Ct. at 926. "Simply going along with discretionary decisions made by one's subordinates . . . is not a delegation to them of the authority to make policy." Id., 108 S. Ct. at 927.
The evidence introduced by plaintiffs -- even when viewed in the light most favorable to plaintiffs, as this court must on defendants' summary judgment motions -- indicates at most that Sheriff Elrod simply went along with the discretionary decisions made by Chief Nolan, rather than approving both the decisions and their bases. Accordingly, plaintiffs' ratification theory fails. Defendant O'Grady's motion for summary judgment must be granted.
B. Defendant Nolan's Motion for Summary Judgment
For claims against him in his individual capacity, Chief Nolan has moved for summary judgment based on the doctrine of qualified immunity. For claims against him in his official capacity, Chief Nolan has moved for summary judgment arguing that plaintiffs have failed to present evidence that he had final policymaking authority or that the Sheriff's Department had a de facto policy of racial or political discrimination. Chief Nolan's arguments prevail as well.
Summary judgment is the proper manner to resolve a claim of qualified immunity as soon as possible because it protects government officials from the costs of trial. Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir. 1988). Under the doctrine of qualified immunity, "public officials performing discretionary functions are protected against suits for damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Auriemma v. Rice, 910 F.2d 1449, 1452 (7th Cir. 1990), citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). Thus, qualified immunity analysis entails a "purely objective inquiry to determine whether at the time of the alleged illegal act, the right asserted by the plaintiff was clearly established in the particular factual context presented." Id., quoting Polenz v. Parrott, 883 F.2d 551, 554 (7th Cir. 1989).
As in Auriemma v. Rice, this case requires applying an objective analysis to claims that depend on an official's state of mind -- specifically, claims that Chief Nolan intended to discriminate against plaintiffs on the basis of their race and political affiliation when he approved their transfers. When state of mind is at issue, the Court's reasoning in Harlow v. Fitzgerald calls for this court to conduct a two-part inquiry: "(1) Does the alleged conduct set out a constitutional violation? and (2) Were the constitutional standards clearly established at the time in question? . . . Intent is relevant to (1) but not to (2)." Auriemma, 910 F.2d at 1453, quoting Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986). Thus, this court's consideration of intent is relevant to the determination of whether a constitutional violation exists but not to deciding whether the constitutional standard was clearly established. Id.
As to the first part of this two-part analysis, there is no genuine issue of material fact that Chief Nolan did not discriminate against plaintiffs because of racial animus or political affiliation, and thus the alleged conduct does not set out a constitutional violation. The parties do not dispute that this case involves only the low-level transfer of, at the most, four police officers within the Sheriff's Police Department. Unlike in Auriemma, this case involves no large-scale reorganization of top management positions within a department.
Moreover, all of the transfers at issue were merely lateral transfers, involving no loss of rank, pay or benefits. And importantly, defendants have articulated non-discriminatory bases for each of the transfers -- namely, complaints about plaintiffs' professional performance. (Peters Dep. at 22-25; Larkin Dep. at 6-9; Diggs Dep. at 6-7; Dalen Dep. at 15-16; Nolan Dep. at 28.)
The parties have introduced no evidence whatsoever suggesting that Chief Nolan transferred plaintiffs because of either their race or their political affiliations.
Indeed, the evidence presented suggests just the opposite -- that at the time of the transfers Chief Nolan did not even know of plaintiffs' race or political affiliations. (Nolan Dep. at 11-12, 37.)
Because there is no real dispute as to these issues, there is no genuine issue of material fact that Chief Nolan's conduct did not set out a constitutional violation.
Accordingly, summary judgment on the basis of qualified immunity must be entered in Chief Nolan's favor on the claims brought against him individually.
Chief Nolan is entitled to entry of summary judgment on plaintiffs' claims against him in his official capacity as well. There is no genuine issue as to the material fact that Chief Nolan did not have final policymaking authority under state law to order the transfers at issue.
As defendant O'Grady helpfully notes, Article VII, § 4 of the Illinois Constitution establishes the office of Sheriff. Ill. Ann. Stat., Const. Art. VII, § 4(c) (Smith-Hurd 1971). When Chief Nolan transferred plaintiffs, Illinois law required the Sheriff of Cook County to maintain within his office a division to be known as the County Police Department, the department which employed plaintiffs. Ill. Ann. Stat. ch. 125, § 51 (Smith-Hurd 1967).
Illinois law further charges the Sheriff with the responsibility of employing deputy sheriffs, including police officers. Illinois law vests with the Sheriff responsibility for appointing deputy sheriffs to various ranks and for disciplining them, subject to the limitations imposed by the Cook County Sheriff's Merit Board and the Cook County Sheriff's Merit Act. Id., §§ 51-63.
The parties have presented no evidence (and this court has found no evidence) supporting the notion that state law in some way vested Chief Nolan with final policymaking authority for making transfers in the Sheriff's Department. In their response to Chief Nolan's motion for summary judgment, plaintiffs simply state, "Nolan was authorized as a matter of policy to make the November 9 transfers on his own." (Pl. Mem. at 2.) In support of this conclusory proposition plaintiffs merely cite to "Nolan Dep" -- providing no page reference whatsoever to Chief Nolan's fifty-page deposition transcript.
This court independently searched Chief Nolan's deposition, concluding (apparently as plaintiffs did, given their failure to offer a precise citation) that it offers no proof that state law vested Chief Nolan with final policymaking authority to make the transfers at issue. At best, Chief Nolan's deposition testimony indicates simply that he had authority to make discretionary transfer decisions within the Sheriff's Police Department. Neither Chief Nolan's deposition nor any other evidence brought to this court's attention indicates that Chief Nolan was delegated authority to set employment policy in the Sheriff's Department. Cf. Praprotnik, 108 S. Ct. at 926-27; Pembaur, 475 U.S. at 483 n. 12, 106 S. Ct. 1292, 89 L. Ed. 2d 452 n. 12. Accordingly, Chief Nolan's motion for summary judgment on claims against him in his official capacity must be granted.
Similarly, summary judgment must be entered in Chief Nolan's favor on plaintiffs' individual claims against him, as plaintiffs have failed to raise a genuine dispute as to whether the Sheriff's office had a de facto policy of race discrimination or political discrimination.
Plaintiffs argue that their transfers constitute a "custom or practice" of discrimination because Chief Nolan's single order resulted in four separate instances where whites were to be replaced by blacks. (Pl. Mem. at 6.) However, plaintiffs have cited no case suggesting that these few transfers alone, in the context of a single transfer decision, raise a genuine issue of material fact of a "custom or practice" for purposes of imposing county liability.
To survive summary judgment on their official capacity claims against Chief Nolan, plaintiffs must present evidence raising a genuine dispute that Chief Nolan's conduct, although not authorized by written law or express county policy, was "so permanent and well settled as to constitute a 'custom or usage' with the force of law." Praprotnik, 108 S. Ct. at 926, quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168, 90 S. Ct. 1598, 1613-1614, 26 L. Ed. 2d 142 (1970). Plaintiffs' invocation of the fact that Chief Nolan, on a single occasion, attempted to replace four white officers with four black officers, constitutes no such evidence. Accordingly, Chief Nolan's motion for summary judgment on the claims against him in his official capacity must be granted.
For the reasons stated in this memorandum opinion and order: (1) defendants James O'Grady and Samuel Nolan's motions for summary judgment are GRANTED; (2) JUDGMENT is entered in favor of defendants and against plaintiffs on both counts of plaintiffs' complaint; (3) this case is DISMISSED in its entirety.